| In the early evening of May 23, 1991, eight-year-old Antoinette McLean let several men into the apartment where she and her family lived in the Roxbury section of Boston, Massachusetts.
The men grabbed her father, Kenneth McLean, removed his clothing except a sweatshirt, and then tried to bind him with duct tape. At about 7:45 p.m., McLean broke free and ran downstairs, with two men in pursuit. They chased him into the street, and one of them fatally shot McLean.
The Boston police quickly put out an all-points bulletin for the men, stating they were looking for three Black men:
“One black operating, dark skinned, no further description. Number two: black male, 6 foot 1, 6 foot to 6'1"; 140 pounds; about 25 years. He’s got medium curly hair with long curl down the center of his hair down the nape of his neck. He’s wearing a red sweatshirt, a red shirt, blue jeans. He’s the one that fired the shots ... They’re in a red Toyota or red Ford Escort, four doors, being operated by a dark skinned black male.”
The descriptions came from two teenage boys, Derek Hobson and Anthony McAfee, who had been walking down the street on the way to nearby basketball courts when the shooting happened. They told the police that they hadn’t seen the faces of any of the men. Both boys were friends of McLean’s; Hobson, who was then 15 years old, considered him like “an uncle.”
Separately, Detective Thomas Gomperts had received a tip from a confidential informant that four men – Robert Foxworth, Ronnie Christian, Steven Sealy and Hussie Joyner – might have been involved in the shooting.
Based on this information, Gomperts put together a photo array to show Hobson on June 17, 1991, during an interview at the home of one of McLean’s relatives. Hobson said that the 23-year-old Foxworth, the only person in the array who had a long strand of hair, was the shooter. He made a second identification of Foxworth on June 28, 1991, from a different photo array.
Foxworth was the only person from the first array in the second array, and again, he was the only person with a long strand of hair. Police arrested Foxworth on July 11, 1991, and charged him with first-degree murder.
Separately, a man named Troy Logan was arrested on September 11, 1991, and Christian was also later arrested.
After Logan’s arrest, the state filed a continuance to delay Foxworth’s trial because it wanted to try the three men together.
The police said that Logan identified Foxworth from a photo array and then gave a statement to the police. In the statement, he said he had gone with Foxworth and another man to McLean’s apartment to buy cocaine, and that Foxworth and McLean had argued because Foxworth thought McLean had previously sold him some bad cocaine. Logan said he left the apartment when the fight started, but he saw Foxworth leave and then go back inside with a gun. Logan said he heard the shots but didn’t see the shooting.
Foxworth hired a well-regarded Boston attorney, Willie Davis, to represent him. William White was appointed to represent Logan. In the fall of 1991, White joined Davis’s law firm, creating a potential conflict of interest. On November 14, 1991, a judge said the solution was for Foxworth to get a new attorney, and he ordered Davis to withdraw as Foxworth’s attorney. Foxworth hired Earl Howard as his new attorney as the case proceeded to trial.
Hobson was the state’s key witness, and he was reluctant to testify. Prior to the start of the trial in Suffolk Superior Court, Foxworth moved to suppress Hobson’s identification.
In a proceeding related to this hearing that took place without Howard or Foxworth present, Assistant District Attorney James Larkin told the judge that Hobson was essential; the judge offered to hold Hobson in jail as a material witness. Hobson, now 16 years old, said he wanted to be home with his young daughter, and the judge relented, telling him to find another place to stay because he had reason to fear for his safety.
“In this improper proceeding,” Foxworth’s appellate attorneys would later note, “ADA Larkin, Det. [Daniel] Flynn and the judge made themselves Hobson’s protectors from Foxworth’s purported threats.” The motion to suppress was denied.
Separately, two days before the trial was to begin, prosecutors moved to sever the cases, asking to try Logan separate from Foxworth and Christian. Christian’s attorney objected, noting that because Logan’s statement didn’t mention his client, it was crucial to his defense. The judge denied the motion and ruled the men would stand trial together on May 25, 1992.
Prosecutors planned to introduce Logan’s statement in their case against him, but his statement also said Foxworth was the shooter. Because Logan wasn’t testifying, there was no way for Foxworth’s attorney to cross-examine Logan about what he told the police. The judge’s remedy was to redact the statement, replacing Foxworth’s name in every instance with “Mr. X.” (Foxworth’s attorneys said Foxworth didn’t know Logan or McLean.)
While Hobson had picked Foxworth out of two photo arrays, he had never actually described him to police, failing to mention, for example, that Foxworth had noticeable protruding teeth. He also testified that he had based his selection in the photo arrays on the fact that that the man he saw shoot McLean had a “tail,” and Foxworth’s photo was the only one with a similar feature. Under questioning, Hobson’s identification ebbed and flowed. He said he had not seen the shooter’s face, only his back. Then he said he also got a side view, which allowed him to identify Foxworth. Finally, he backtracked, telling the defense on cross-examination that he was only “80 percent sure” in his identification.
McAfee testified that he had seen Logan hand a black object to the man who shot McLean.
Logan did not testify, but jurors heard his redacted statement that said “Mr. X” was the shooter. Foxworth’s appellate attorneys would later write: “With knowledge of the redaction, it was child’s play for the jury to identify the petitioner as ‘Mr. X.’ There were only three defendants – Logan, Christian, and the petitioner – and no other suspects. Logan, as the author of the statement, could not have been ‘Mr. X.’ Flynn’s testimony unambiguously eliminated Christian from consideration. That left the petitioner.”
Foxworth had several friends and family members testify that he was elsewhere at the time of the shooting. But on March 31, 1992, the jury convicted him of second-degree murder, and he received a sentence of life in prison. Logan was acquitted. Christian received a directed verdict of not guilty after the state closed its case.
Foxworth began a series of appeals through the Massachusetts and the federal courts that culminated in a 2003 petition for a writ of habeas corpus in U.S. District Court for Massachusetts.
Central to the argument in his petition was a change in federal law, based on the 1998 Supreme Court ruling in Gray v. Maryland, that said that in a joined trial using redactions and replacements in the statements given by co-defendants could still violate the other defendant’s constitutional right to confront his accuser. The simple word replacement allowed in Logan’s statement was too clumsy and obvious, Foxworth’s attorneys argued.
Judge Rya Zobel granted Foxworth’s petition on August 17, 2006. She wrote that Logan’s statement, even with the redactions, were “given by a co-defendant with powerful motive to incriminate petitioner, and unchallenged by cross-examination, violated petitioner’s Sixth Amendment rights.”
The state appealed the ruling, arguing that these protections didn’t apply in Foxworth’s case, because his conviction was final in 1996, before the Supreme Court’s Gray ruling. And despite Zobel’s order requiring the state to either retry Foxworth within 60 days or release him from custody, Massachusetts officials appeared to drag their feet. Foxworth was finally released from prison on March 13, 2008. His attorneys noted that prison officials had refused to release him to attend the funeral of his son, who was killed on September 30, 2006.
As Foxworth’s attorneys worked through these appeals, they also uncovered new evidence of innocence. In 1993, an assistant federal prosecutor in Boston sent the Suffolk County District Attorney information from two confidential informants about the McLean murder. The informants said the shooting was part of a larger struggle among cocaine dealers. The informants said that an associate of McLean’s had shot Christian a few months earlier in retaliation for Christian robbing McLean. They said that a man known as “T-Lover” had shot and killed McLean. Foxworth’s name was never mentioned in that report.
McAfee had recanted his testimony of Logan in 2000, and Hobson recanted his identification of Foxworth in 2008, while the habeas petition was under appeal by the state. Hobson said in his statement that the DA’s office and police pressured him to falsely say he had seen the face of the shooter. “I could recognize Robert Foxworth only because I remembered that the police had shown me two sets of photographs in the summer after the murder, and his photograph was included in each set. In each set, he was the only person who had a ‘tail’ at the back of his neck.”
Hobson said that after a break in the trial, he changed his testimony to say that he had seen the side of the shooter’s face. During the break, he said, Larkin had told him that “if I did not testify to that, he would have me locked up with the three defendants.”
On June 29, 2009, the U.S. Court of Appeals for the First Circuit said the Massachusetts courts were the proper forum for determining when Foxworth’s conviction had become final. On July 10, 2010, the Supreme Judicial Court of Massachusetts said the conviction had become final in 1996, denying Foxworth the relief he would have found under the Gray ruling. Foxworth returned to prison.
Foxworth and his legal team – Linda Thompson, John Thompson and Amy Belger – continued to pursue his claims of innocence, and they filed a series of motions and public-records requests allowing further examination of the case files of the Boston Police Department.
The documents included a 2006 interview with one of the 1993 confidential informants, who was now cooperating with state and federal prosecutors on other charges. Joyner, one of the men named in the initial tip to Gomperts, was actually one of the 1993 informants. He said that he was present at the murder, and Foxworth wasn’t there. McLean was either shot by Logan or T-Lover, Joyner said. This information was relayed to Assistant District Attorney Mark Lee, who took no action.
Separately, the police department eventually turned over two documents from the early days of the investigation. On June 18, 1991, an officer received a message from Troy Logan’s father-in-law stating that he believed Logan was involved with McLean’s death. The officer relayed the information to Flynn in a brief memo. The document was not given to Foxworth’s attorneys.
In addition, Officer Robert Guity had received a so-called “Good Citizen Report” on May 25, 1991 from a caller who said Logan was bragging about shooting McLean. The anonymous caller contacted Guity again on May 28, this time with the officer’s pager, and told Guity about Logan’s prior arrests. This information was also not provided to Foxworth’s attorneys, and Larkin knew about the report, according to his trial notes.
On January 31, 2020, Foxworth’s attorneys filed an expansive motion for a new trial. First, it said requiring Davis to recuse himself as Foxworth’s attorney violated Foxworth’s right to choose counsel. The motion also cited the shakiness of Hobson’s identification and his recantation. In addition, the motion said that the state’s failure to disclose evidence about Logan had harmed Foxworth’s ability to defend himself in court.
This occurred in two main ways. First, the Good Citizen Report would have allowed Foxworth to present a third-party culprit defense. Second, the emergence of the report would have likely required the trials of Logan and Foxworth to be severed, and Foxworth’s jury would not have heard Logan’s statement unless Logan also testified.
Although the Suffolk County District Attorney’s Office had fought Foxworth through the courts for nearly 30 years, the new evidence and the role of prosecutors in keeping this information from Foxworth and his attorneys was sufficient to bring about a sea change.
The DA’s Integrity Review Bureau began reviewing the case in this new light in the fall of 2020, culminating in an interview with Hobson on December 11, 2020, where he again asserted that he had been unfairly pressured to identify Foxworth as the shooter. He told investigators that he only recognized Foxworth’s face from the photos, not the shooting itself.
On December 18, 2020, prosecutors filed a response in Suffolk Superior Court that supported a new trial and Foxworth’s immediate release from prison. It said in part:
“In summary, the single identification witness’s credible recantation of his identification testimony, the substantial likelihood that the unnecessarily suggestive identification procedure could have resulted in a misidentification of the defendant, and the prejudicial impact of the manner in which the co-defendant’s statement was presented to the jury, cast real doubt on the justice of the conviction.”
Judge Christine Roach didn’t act promptly on the filing; she said the court had no time that week to hear the case. District Attorney Rachel Rollins then filed an emergency petition on December 22, 2020, with the state’s Supreme Judicial Court. On December 23, 2020, after hearing from the state and Foxworth’s attorneys, Associate Justice Scott Kafker ordered Foxworth’s release from prison that day.
“A tremendous amount of government resources goes into convicting people of serious crimes — as it should,” Thompson said. “But there are almost no resources available to people who have been wrongfully convicted. We know there are many people who have been in this situation, and it has been his character and determination that have made the difference.” Foxworth was twice rejected for parole because he would not accept responsibility for a crime he did not commit.
On January 13, 2021, the motion for a new trial was granted, and the DA’s office dismissed the charge that same day.
In 2022, Foxworth's attorneys filed a complaint with the Board of Bar Overseers against Lee for failing to disclose Joyner's statements that Foxworth did not shoot McLean. Lee was suspended with pay in November 2022 pending an investigation of his conduct. He returned to work in July 2023 after an independent investigation done through the DA's office said Lee did nothing improper. The Bar investigation is still active.
– Ken Otterbourg
|