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SJC rejects call for new trial in '95 restaurant attack

By John R. Ellement

Globe Staff / September 6, 2008

Gunfire erupted in a Charlestown restaurant during lunch time, leaving four men dead and a fifth fighting for his life. One of the gunmen fired until his gun ran out of bullets.

Yesterday, the Supreme Judicial Court ruled that Anthony Clemente and his son, Damian, were properly convicted by a Suffolk Superior Court jury for committing the massacre inside the 99 Restaurant on Nov. 6, 1995.
"The central issue at trial was whether the defendants acted in self-defense and whether Anthony acted in defense of another," Justice Judith Cowin wrote for the unanimous court. "We perceive no reason to exercise our extraordinary powers to reduce the verdict or order a new trial."
Killed were 55-year-old Robert C. Luisi Sr.; his 26-year-old son, Roman; their 32-year-old relative, Antonio Sarro; and a family friend, 53-year-old Anthony Pelosi.
The fifth victim, Richard Sarro, was shot in the stomach but survived only because Anthony Clemente ran out of ammunition for his 9mm pistol, the SJC said.
Anthony Clemente "went to drop the hammer on [Richard Sarro]," but his gun was now empty, Cowin wrote.
Sarro refused to testify against the Clementes during their joint trial in 1997 and was sent to prison for 60 days for contempt of court. Yesterday, through a friend, he declined to comment.
In the ruling, the SJC said the Clementes were feuding with the Luisi clan, whom Boston police described at the time as being on the fringe of organized crime in the North End.
Anthony Clemente testified at his trial that he shot all five men as they sat in a booth, but only after Roman Luisi made an aggressive move toward him. Ballistic evidence showed Damian Clemente shot his .45-caliber pistol once, hitting Robert Luisi, court records show.
In their appeal, the Clementes jointly raised 16 legal issues, including a request that the court retroactively apply a 2005 ruling known as the Adjutant Case.
The court refused, saying that only cases where constitutional rights are affected can be applied retroactively. The court also said the Clementes presented strong evidence showing the Luisis and Sarros were prone to violence, and there was no need for the jury to hear more about it.
Under the Adjutant Case, defendants can try to convince juries they acted in self-defense by showing that the victims had a propensity to act violently.
"Abundant evidence of the victims' specific acts of violence was admitted," Cowin wrote.
But Anthony Clemente's attorney, Rosemary C. Scapicchio, called the SJC ruling "bizarre" and contended that the court ignored its own cases and the US Supreme Court in refusing to grant a new trial.
Scapicchio said the US Supreme Court has ruled that when a new case law is made, like the SJC did in its 2005 ruling, anyone with a pending appeal should get the benefits. The Clementes case was pending in 2005, she said.
"It's mind-boggling that they are willing to manipulate the law the way that they are in order to keep these people in jail," Scapicchio said.
Robert Sheketoff, the attorney for Damian Clemente, could not be reached for comment.
Two Everett police officers who were in the restaurant at the time of the shooting arrested Damian Clemente and a second man, Vincent Perez, in the restaurant parking lot. Perez was acquitted of murder charges. Anthony Clemente had left the scene, but was arrested the following day.
In a statement, Suffolk District Attorney Daniel F. Conley, who inherited the case from former district attorney Ralph C. Martin II, applauded the court's decision.
"The trial jury heard evidence of the victims' propensity for violence and properly rejected it," Conley said. "These defendants armed themselves when the victims did not. These defendants opened fire when the victims did not. The facts, the evidence, and the law warranted these convictions, and we are very pleased that they will stand."
Both men are serving life without the possibility of parole. The elder Clemente is currently housed in Old Colony Correctional Center in Bridgewater, while his son is serving his time at MCI-Norfolk, according to state records.

http://www.boston.com/news/local/articles/2008/09/06/convictions_upheld_in_fatal_rampage/
 
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