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Frederick Clay

Other Suffolk County, Massachusetts Exonerations
On August 8, 2017, nearly 38 years after he was arrested at age 16 for murder, Frederick Clay was exonerated and released from prison based on evidence that he was mistakenly identified as the gunman who killed a cab driver in Boston, Massachusetts.

The crime occurred shortly after 4 a.m. on Friday, November 16, 1979. Witnesses heard a commotion on the street outside of the Archdale Housing project in the Roslindale neighborhood of Boston. Several shots were fired and 28-year-old Jeffrey Boyajian was found shot five times in the head.

When police arrived, 25-year-old Neal Sweatt and his friend, Ben Brown, were standing in a nearby doorway of a building on Broadway Terrace. Both said they had not seen what happened. That morning, police interviewed residents of the building and spoke to Sweatt’s mother, Phillippa, who said she was making coffee for Neal and Brown when she heard a noise outside the window of their second-story apartment. She said she called to Neal, “Look, they’re pulling a cab driver…out of a cab.”

Phillippa said there were three men wearing leather jackets. Two were about 6 feet tall and one about 5 feet 8 inches tall. As they searched Boyajian’s pockets, she heard him say, “Take what you want, but let me live.” She said that after a struggle, the shorter man, holding a gun in his left hand, shot Boyajian.

Later that afternoon, cab driver Richard Dwyer called police to say he had read about the murder in the Boston Globe and saw a photograph of Boyajian’s cab. Dwyer said he remembered that he was sitting behind Boyajian’s cab on Washington Street in the “Combat Zone,” the adult entertainment district in downtown Boston, when he saw three black men walking toward him—two very tall and one much shorter. Dwyer said he turned his meter on and shook his head to indicate he was not available. The three then got into Boyajian’s cab, which was parked in front of Dwyer’s cab, and took off.

Dwyer became a critical witness, although his account of how he learned of the crime was questionable—if not fabricated. There were no articles or photographs relating to the crime in the Globe, the Herald Examiner, or the Jamaica Plain Citizen that day because the crime occurred after the deadline for publication of that day’s edition had passed.

By the time Dwyer came to the police, the lead detective, Henry Berlo, had assembled an array of 12 photographs of young men who were known to live in or hang out around the housing project. Although no report was ever made, Dwyer and the detective would later say that Dwyer tentatively identified 16-year-old Frederick Clay as the shorter of the three individuals and 20-year-old James Watson as one of the two taller men. The third man was never identified or apprehended.

At that time, Dwyer agreed to be hypnotized. Boston Police officer Patrick Brady, a 25-year-veteran whose position was “Investigative Hypnologist,” met with Dwyer and talked about the hypnosis process for ten or fifteen minutes. During the unrecorded conversation, Brady explained what hypnosis was and how it worked. Brady’s training included some courses and seminars, but he did not consider himself an expert. Dwyer was the fifth or sixth person he had ever hypnotized.

Brady told Dwyer that hypnosis would allow him to see the events in his mind as if he were watching television or watching a documentary. Present during this conversation were three prosecutors and a detective. Brady hypnotized Dwyer, instructing him that he would be watching a special documentary film and would see exactly what occurred.

Brady told Dwyer that he would be able to replay what he had witnessed that morning on lower Washington Street. He asked Dwyer to imagine the scene, then inquired whether Dwyer could see his friend‘s cab. Throughout, Brady suggested that Dwyer could freeze his memory to get a better look.

Immediately after the hypnosis session, Berlo showed Dwyer the photographic array again. This time, Dwyer‘s “doubts were gone,” and he positively identified Clay‘s photograph as the short man he saw that night. He also added new details to his description of the men, indicating that one was thin and wore a “gold-colored balloon jacket.” Later, Dwyer testified to a grand jury that he never saw the photo array until after being hypnotized. It was not until more than a year later, when defense lawyers were challenging the identifications and the use of hypnosis that Berlo and Dwyer said he viewed the photo lineup before being hypnotized. What was not clear, however, was whether Dwyer made a tentative identification before being hypnotized or afterward. He and Berlo testified both ways at different times during the ensuing legal proceedings.

On Saturday, November 17, the day after Dwyer viewed the array the second time, four detectives took the same photo lineup to the housing project and spent two or three hours talking to Neal and Phillippa Sweat. Neither made any identification.

Police returned to the apartment the next day, on Sunday, November 18, and once again showed the photographic lineup. This time Berlo announced that he “had a fairly good idea of who was involved.” When Neal expressed apprehension about getting involved, Berlo said that if Neal cooperated, the police would arrange for the family to move out of the housing project. At that time, the Sweatt family was the only white family living in the development and had been on a wait list to move to another housing project for five years. Neither Neal nor his mother made any identification. However, Neal did agree to go under hypnosis and went to the station that night to be hypnotized. That session was terminated due to Neal’s “poor concentration.”

Police returned to the Sweatt apartment on Monday afternoon and showed Neal the photo array a third time. As detective Berlo spread out the photos on the kitchen table, another detective announced that the family would be relocated at the city of Boston’s expense. At that moment, Neal then identified Clay as the gunman, saying he knew him as “Freddie,” and identified Watson as another participant in the robbery. He said he knew both from the neighborhood.

Clay was quickly arrested and charged with first-degree murder. He was prosecuted as an adult. Watson was arrested several days later and charged with first-degree murder.

On November 27, 1979, Dwyer was hypnotized for a second time to see if he could recall additional details about the third man he said he saw. During this session, the “film of what occurred on lower Washington Street” was “frozen with a frame on the screen,” and the screen zoomed in so that Dwyer could get “a close-up view” of the faces of the three individuals.

In February 1980, at a hearing to transfer Clay from Juvenile Court to Superior Court, Neal Sweatt participated in a live lineup in court. Clay was one of 11 people seated in the gallery—only five, including Clay, were black. When Neal identified Clay, the prosecutor announced that Sweatt had, indeed, identified “the defendant in this proceeding.”

Clay and Watson went to trial in Suffolk County Superior Court in August 1981. Before trial, the defense moved to suppress the eyewitness identifications as the product of unfairly suggestive police procedures. The trial judge deferred ruling on the motion, and after hearing testimony from Neal, Dwyer, and Berlo during the trial, declined to suppress the identifications.

No physical evidence linked Watson or Clay to the crime. Fingerprints collected from Boyajian’s cab and a nearby car that the gunman touched (according to Phillippa Sweat) could not be analyzed because there were insufficient print ridges.

Dwyer and Neal Sweatt both testified and identified Clay and Watson. Neal said that Clay was the gunman.

Dwyer testified that while he had initially expressed doubts about his identification of Clay, telling police he “wasn’t ready to say that’s the guy,” he said his pre-hypnosis certainty was eight on a scale of one to 10.

Dwyer described being hypnotized. He said that during the session “everything sort of came into focus…[and] was very clear . . . almost like a TV screen.”

He said that he could see an “instant replay” of what he saw that morning, and that he could “freeze” his memories so he could get a better look. Dwyer claimed he “got a closer view than [he] had on lower Washington Street, … and it was [his] belief that…[he was] simply getting a better look at what [he himself] had actually seen when [he was] on lower Washington Street."

Dwyer testified that 11 days after the shooting, he agreed to be hypnotized a second time. During this session, he said, he saw the “film of what occurred.” When the men get into Boyajian’s cab, the film was “frozen with a frame on the screen,” and the screen zoomed in so that he could get “a close-up view of the faces of the three individuals.” Dwyer even claimed that he got a “closer view” than he had from his cab. Dwyer testified that at the end of the second session, he viewed the 12-photograph lineup a third time and he positively identified Clay and Watson once again.

Recordings of both hypnosis sessions were played for the jury.

Brady testified, after being qualified as an expert on hypnosis, about the sessions with Dwyer. He said that “the mind can take mental pictures that are encoded in the brain.”

The prosecution also presented testimony from Martin Reiser, a leading proponent of the field of hypnosis and an expert on the subject of the reliability of hypnotically-aided recall.

Reiser testified that while there was no definitive answer on how memory worked, his experience taught him that it worked at least in part like a giant computerized videotape recording. Reiser said that the television technique enabled subjects to better concentrate and pay attention to details without background distractions. He believed that subjects could properly be instructed that, “the film the subject will see will be an exact replay in vivid and accurate detail of the crime event in question.”

The defense also called a hypnosis expert—Martin Orne, who was at that time the world‘s leading scientist in the field of hypnosis. A medical-trained psychiatrist with a degree from Tufts Medical School and a Ph.D. in Psychology from Harvard University, Orne was employed as a Professor of Psychiatry at the University of Pennsylvania and as the Senior Attending Psychiatrist at the Institute of Pennsylvania Hospital. Dr. Orne was highly critical of Reiser and Brady‘s depiction of human memory. He testified that the so-called “tape recorder” theory of memory lacked scientific support, and that he was unaware of any cognitive psychologists who agreed with this theory.

Orne noted that the belief that memory worked like a giant videotape recorder in the mind enjoyed widespread acceptance by people working in police circles with hypnosis. He noted that if the mind worked like a giant tape recorder, both nonsense material and highly meaningful material would be recorded and remembered.

Orne said the television technique of hypnosis was not a reliable method for obtaining the accurate recall of historical facts. He told the jury that once a subject saw the “video tape” in hypnosis, it was integrated into the subject’s memory and the subject was unable to separate it from any original memory of actual events that were seen.

Orne was critical of Brady’s use of phrases like “zooming in” and “slowing the frames down” as “profoundly distorting” because they made the subject believe he could increase the resolution of what he was seeing. Orne also told the jury that hypnosis involved a suggested distortion of memory and therefore was a distortion of the truth.

Clay testified he was not involved in the crime and was at home with his foster mother, Ines King, at the time of the shooting. He testified further that he was right-handed and was 5 feet 4 inches tall—at least four inches shorter than any of the witnesses’ descriptions of the shooter.

The defense also noted that the Sweatts’ apartment window was more than 74 feet from where Boyajian’s body was found and that the only illumination came from a single streetlight.

King testified that Clay had been placed in her home in October 1979, and that he was home when she got home from church on the night of November 15, 1979. She said he was still in bed when she got up at 8 a.m.—four hours after the shooting—on Friday, November 16. The only exit door locked from the inside, and she had the only key.

The prosecution called two young men who had also lived in foster care with King. Both said they knew of a second-floor window through which one could get out of King’s house undetected. One of them, Dennis Murray, even said he recalled a time when he awoke and Clay was not there, though he had no idea what month or even year that occurred. In its closing argument, the prosecution—repeatedly and without any supporting evidence—suggested that the night Clay was missing was actually the night of the shooting.

Specifically, the prosecutor said to the jury: “Remember this—that after that, Dennis Murray never saw Frederick Clay again….Was the run that we are speaking of the night of the 16th? The early morning of the 16th?”

On August 19, 1981, the jury convicted Clay and Watson of first-degree murder. Both were sentenced to life in prison without parole.

The Massachusetts Supreme Judicial Court upheld Clay’s conviction in March 1983. Clay filed a federal petition for a writ of habeas corpus challenging the use of hypnosis-induced testimony, but the petition was dismissed. In 2012, the U.S. Supreme Court ruled that a sentence of life without parole was unconstitutional for juveniles and Clay became eligible for parole.

At a parole hearing in 2015, Clay said he could not give an account of the crime because he was not there. Although the parole board voted 4-3 in favor of granting parole, he was denied release because the board ruled a 2/3 majority—five votes—was necessary. Clay’s lawyers appealed. In 2016, the Supreme Judicial Court ruled that since a simple majority was the standard in 1979 when the crime was committed, Clay was entitled to be paroled.

However, in the meantime, Clay’s lawyers, Lisa Kavanaugh, director of the Committee for Public Services Counsel Innocence Program, and Jeffrey Harris, of the law firm Good, Schneider, and Cormier, had filed a motion for new trial. The motion claimed that Clay’s lawyer had failed to investigate evidence that showed other men who lived in the housing project were responsible for the crime.

In 2016, Regina Moses told an investigator for Clay that at the time of the crime, when she was 15, her older sister, Diane Moses, was dating Watson—Clay’s co-defendant. Watson hung out with two brothers, Tyrone and Junior Cooper—all of whom frequently made fun of Clay. Regina Moses said Clay was a loner and never hung out with Watson or the Coopers, whom she said always wore leather jackets.

At the time of Clay’s trial, the prosecution had given Clay’s defense lawyer police reports documenting an interview with Diane Moses conducted less than 24 hours after Boyajian’s murder. Diane told police that she learned of the crime from Jimmy Poole, who was living with the Cooper brothers’ mother. Diane said Poole told her that earlier that day—the same day of the crime—Tyrone and Junior Cooper told him that they hurt a cab driver. In the police report, Diane was quoted as saying she saw the Cooper brothers on the afternoon of the shooting and both were wearing leather jackets and black pants.

The motion detailed how Tyrone Cooper, who was 16 at the time of the crime and known to hang out in the Combat Zone, had later been convicted of numerous offenses, including armed robbery, some of which occurred only months after Boyajian’s murder. Cooper was 5 feet 8 inches tall and his brother Junior was several inches taller—as was Watson.

The motion included analysis by experts that the identification procedures—even beyond the hypnosis—were suggestive and manipulative, particularly showing Dwyer and Neal Sweatt the same photographic lineup at least three and possibly as many as five times.

In addition, the motion said that Neal Sweatt was mentally challenged. Although he was 25 at the time, he had the mental capacity of a 10-year-old, according to records the defense located but that Clay’s trial defense lawyer had never sought.

The motion also challenged the hypnosis-related testimony as unreliable, citing experts who said that the science underlying the “television technique,” the idea that memory is like a video camera, had been substantially debunked. “The police relied on a hypnosis technique that was based on an entirely discredited model of human memory that placed undue pressure on Dwyer and was likely to encourage confabulation as well as inflated belief in the accuracy of the memories,” the motion said.

The case was turned over to Suffolk County District Attorney Daniel Conley’s conviction integrity unit, which conducted a re-investigation. DNA tests were performed on the pockets of Boyajian’s pants—which had been rifled by one of the robbers—but only Boyajian’s DNA was identified.

On August 8, 2017, the prosecution agreed that Clay’s conviction should be vacated, and the charges were dismissed. Clay, who was still in custody, was released.

In a statement, Conley said, “Upon review of the evidence, including that advanced by the defendant in his motion and that was gathered by the Commonwealth after receiving the motion, and after extensive investigation and scrutiny by this office’s Conviction Integrity Program, the Commonwealth has concluded that the interests of justice would not be served by the prosecution of this case.”

Conley said that although the re-investigation did not offer conclusive proof of Clay’s innocence, the new evidence “raised significant doubt as to the fairness of his trial and the justice of his conviction.”

Conley also cited “additional concerns given the use of hypnosis to enhance witnesses’ recollections – a practice largely discredited in the modern age.” He acknowledged that the prosecution could not refute the evidence that Clay’s trial lawyer had provided an inadequate legal defense by failing to challenge Neal Sweatt’s identification more aggressively or pursue “plausible” evidence that the Cooper brothers might have been the real criminals.

Clay received $1 million in compensation from Massachusetts in January 2019, the maximum allowed under state law.

– Maurice Possley

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Posting Date: 8/15/2017
Last Updated: 6/29/2020
Most Serious Crime:Murder
Additional Convictions:
Reported Crime Date:1979
Sentence:Life without parole
Age at the date of reported crime:16
Contributing Factors:Mistaken Witness ID, False or Misleading Forensic Evidence, Official Misconduct, Inadequate Legal Defense
Did DNA evidence contribute to the exoneration?:No