Wrongfully-Convicted Man Now Free After Suffolk District Attorney Assents to Motion for New Trial in 1991 Homicide

Will nolle prosequi the case because “justice was not done”

BOSTON, Dec. 23, 2020 — The Integrity Review Bureau for Suffolk County District Attorney Rachael Rollins on Tuesday filed an emergency joint petition with the defendant in the state’s Supreme Judicial Court.  The pleading asked the Single Justice to stay the sentence or order a lower court to immediately rule on a motion for a new trial for Robert Foxworth, who has been incarcerated for nearly 30 years for a murder for which he has continuously maintained his innocence and we now know he was wrongfully convicted.

During an emergency hearing this morning before the Single Justice of the Supreme Judicial Court, the Suffolk County District Attorney’s Office argued strongly for Mr. Foxworth’s immediate release.  The Trial Court filed a motion to intervene and argued against the release. Justice Scott Kafker – recognizing the extraordinary nature of the situation and the urgency of the matter — stayed Mr. Foxworth’s sentence and ordered his immediate release from incarceration while a Suffolk Superior Court judge reviews the assented-to motion for a new trial.

In the emergency filing to the Supreme Judicial Court, DA Rollins argued that “Robert Foxworth, a wrongfully-convicted man, currently sits in MCI-Shirley waiting, as he has for nearly thirty years, for justice.  He has always maintained his innocence during those thirty years – being denied parole twice at least in part because he would not admit guilt and ‘take responsibility’ for a crime he says he did not commit. Now, justice has finally arrived for Mr. Foxworth. Requiring him to remain in prison for even one additional day is a gross injustice that, due to the global COVID-19 pandemic, may prove to be deadly.”

The emergency filing goes on to state that “the Commonwealth can now say with confidence that significant constitutional violations occurred in securing Mr. Foxworth’s conviction, including a credible claim that a member of the prosecution team placed the lone eyewitness who identified Mr. Foxworth at trial in a cell during a break in the trial proceedings and coerced him into making the identification of Mr. Foxworth through threats. The witness, who was fifteen years old at that time, has since credibly recanted his identification. This DA’s Office, under this DA, will not stand behind a conviction obtained by threats, coercion, or any other unconstitutional means. And any day that a person – assumed innocent until proven guilty – is found guilty through these shameful and possibly criminal means spends incarcerated, is a day too long.”

“I’m grateful for the Single Justice’s swift action to ensure that a wrongfully-convicted individual has been released.  In a time of increased risk of exposure to COVID-19 in our prisons, any administrative delay in Mr. Foxworth’s release presented the very real possibility that his wrongful conviction could have become a death sentence,” DA Rollins said.  “My office will continue our efforts to ensure that justice is done for Mr. Foxworth as the case returns to the Superior Court.  When the Motion for a New Trial is granted, we will immediately enter a nolle prosequi, allowing Mr. Foxworth to start picking up the pieces of a life, 30 years of which were stolen from him.”

After an extensive investigation and intense scrutiny by DA Rollins’ Integrity Review Bureau, her staff has concluded that the defendant clearly did not receive a fair trial and on Friday, December 18, filed an assent to the defendant’s motion for a new trial.

But when the Superior Court denied the parties’ joint motion for an emergency hearing on the assented-to motion, instead delaying the proceedings for at least another week and possibly significantly longer than that, DA Rollins and the attorneys for Mr. Foxworth jointly filed the emergency motion asking the SJC immediately rule on the new trial motion, or in the alternative, grant Mr. Foxworth a stay in the execution of his sentence.

Another significant issue with the underlying case was that the trial prosecutor admitted a redacted statement made by one of Mr. Foxworth’s co-defendants, which directly implicated Mr. Foxworth, into evidence. The co-defendant never testified, so Mr. Foxworth was never permitted to confront him with the statement.  “In 1998, a US Supreme Court opinion precluded that type of evidence from being admitted at trial. Even though we are not required to apply that 1998 law retroactively to Mr. Foxworth’s conviction, it is absolutely the right thing to do,’’ DA Rollins said.  “That violation, coupled with the other egregious constitutional violations in this case, make it clear that justice was not done and the conviction should not stand.”

“The role of a prosecutor is to be a minister of justice.  We have a duty to ensure the integrity and fairness at every stage of a criminal case, from investigation to post-conviction,” DA Rollins said.  “Justice was not done here, and we have a duty to correct this wrongful conviction, not only for Mr. Foxworth’s sake but also for the communities my office serves.”  “I also spoke with the victim’s family and explained our position. Kenneth McLean’s widow, daughter, sister and nephew were on the call.  This decision hurts them and certainly opens up old wounds.  They are a very close knit family and we spoke about all of the good things Mr. McLean did for his family and the community.  He was a loving husband, father, brother and uncle and is still sorely missed by them thirty years later. 

DA Rollins’ Integrity Review Bureau is the first of its kind in the nation and was launched in December 2019.  The IRB goes far beyond the work of the conviction integrity units operated by many other elected prosecutors across the country.  It is responsible for reviewing policies and practices at each stage of a prosecution through four program areas.  Case Integrity reviews sentinel events during a case such as a no bill by the grand jury, a judge granting a motion to suppress evidence, or a directed verdict. Conviction Integrity looks at post-conviction claims of innocence or wrongful convictions based on unconstitutional or unethical actions. Sentencing Integrity examines whether certain sentences have produced unjust results. And the recently announced Law Enforcement Automatic Discovery (LEAD) Database, includes law enforcement witnesses who have a history of misconduct or whose credibility has been challenged by a court or administrative agency.  

Suffolk County District Attorney Rachael Rollins’ office serves the communities of Boston, Chelsea, Revere, and Winthrop, Mass. The office handles over 25,000 cases a year. More than 160 attorneys in the office practice in nine district and municipal courts, Suffolk Superior Court, the Massachusetts Appeals Court, the Supreme Judicial Court, and the Boston Juvenile Courts. The office employs some 300 people and offers a wide range of services and programs to serve anyone who comes in contact with the criminal justice system. This office is committed to educating the public about the services we provide, our commitment to crime prevention, and our dedication to keeping the residents of Suffolk County safe.