Suffolk District Attorney Files Nolle Prosequi After Judge Allows Assented-to Motion for New Trial in Wrongful Murder Conviction

Sole Eyewitness in 1991 murder recants, defendant did not receive fair trial, and new exculpatory evidence means no credible evidence to support a new conviction

BOSTON, January 13, 2021 — A Suffolk Superior Court judge today allowed an assented to motion to vacate the wrongful murder conviction of ROBERT FOXWORTH, 53, who has served nearly 30 years in state prison for a murder for which he was wrongfully convicted.  

Following the ruling allowing Mr. Foxworth’s motion for a new trial, Assistant District Attorney Dara Kesselheim, Deputy Chief of the Integrity Review Bureau (IRB), filed a nolle prosequi – a legal filing stating that prosecutors do not intend to retry the case, District Attorney Rachael Rollins announced.

After an extensive investigation and intense scrutiny by the IRB, which District Attorney Rollins created in 2019, the Office has concluded that the defendant did not receive a fair trial, and that there is no credible evidence that would support his conviction were the case to be retried. The IRB is the first of its kind in the nation to examine cases not only for actual innocence, but also for significant

constitutional and ethical violations resulting in wrongful convictions; sentencing disparities; and why unexpected problems or events in on-going prosecutions – such as a no bill from a grand jury or a mistrial – occurred and how they can be corrected through training and analysis.

With the filing of this nolle prosequi, Mr. Foxworth is now a completely free man, without a single condition imposed upon him by probation, the District Attorney’s Office, or the trial court.

The IRB review included an interview of the only eyewitness to the 1991 shooting death of Kenneth McLean in Roxbury. The witness, who was 15 at the time, “tepidly identified the defendant at trial and has since recanted his likely coerced in-court identification of the defendant,” the Commonwealth’s assent to the defendant’s motion states. 

Further, the motion says “the initial identification of the defendant was so unduly suggestive and conducive to irreparable misidentification that its admission deprived the defendant of his right to due process.  The improper admission of a co-defendant’s statement then served to compound the effect of the highly suggestive identification.”

“It is cases like this that show why we must always be willing to look back to make sure that we got it right,’’ said District Attorney Rollins. “There were serious, egregious errors in this case, a teenaged, partial eyewitness was threatened by law enforcement during the trial and coerced into identifying Mr. Foxworth.  Mr. Foxworth’s co-defendant was allowed to submit a redacted statement, which directly implicated Mr. Foxworth. In 1998, a US Supreme Court ruling invalidated the type of testimony introduced at this trial. Even though that decision does not apply retro-actively, under my administration we will no longer be legally right and morally wrong. A wrongful conviction should not be allowed to stand.  As a result of the dedicated efforts of my staff and Mr. Foxworth’s excellent criminal defense attorneys, Mr. Foxworth has been freed and the record has been corrected.’’

The conviction was reviewed by Assistant District Attorneys assigned to District Attorney Rollins’ Integrity Review Bureau.  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.  

“I spoke recently with the victim’s family and explained our position,’’ said DA Rollins. “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.’’

“The cases we handle are not easy.  The McLean family is still mourning the loss of their loved one.  But the circumstances and techniques utilized to secure the murder conviction against Mr. Foxworth were unethical, unconstitutional and possibly even criminal. I will not stand silently and allow that type of injustice to occur. Too often the criminal legal system chooses finality over justice,’’ Rollins said. “We will not do that under my administration.  The circumstances leading to Mr. Foxworth’s conviction show precisely why the Integrity Review Bureau is so desperately needed.”

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.