Skip Ribbon Commands
Skip to main content

Frances Choy

Other Plymouth County, Massachusetts exonerations
https://www.law.umich.edu/special/exoneration/PublishingImages/Frances_Choy.jpeg
At 4:50 a.m. on April 17, 2003, 17-year-old Frances Choy called 911 to report a fire at her family’s home on Belair Street in Brockton, Massachusetts. Firefighters rescued Frances from her second-floor bedroom window. Her 16-year-old nephew, Kenneth, was also rescued from his bedroom.

Frances told firefighters that her parents, Anne, 53 and Jimmy, 64, were also in a second-floor bedroom. When firefighters reached them, both were unresponsive due to heat and smoke exposure. All four members of the family were taken to Good Samaritan Hospital. Anne was pronounced dead there.

Police began questioning Frances while she was in a hospital bed being treated with oxygen. The police questioned Kenneth as well. Kenneth was Jimmy’s grandson from a prior relationship in Hong Kong and had come to live with the Choy family in 2000 after Kenneth’s father committed suicide.

The police collected Frances’s and Kenneth’s clothing and brought the clothing back to fire scene. Meanwhile, Jimmy was transferred to Brigham and Women’s Hospital in Boston and Frances and Kenneth were released.

Later that morning, when police saw Frances with her relatives outside the home, officers began questioning her again. She wanted to go to the hospital to be with her father. Family members attempted to interrupt the questioning to take her there, but police told them to stop interrupting and told Frances that if they drove her to the hospital, it would eliminate the need for them to speak with her later.

Massachusetts State Police Trooper Warmington and Brockton Police Detective Eric Clark then drove Frances from Brockton to Boston and continued questioning her during the 30-40 minute drive.

At Brigham, Frances and her family sat by her father’s bedside. As his nearest next of kin, Frances authorized the removal of artificial life support. She wept and family members had to restrain her from hugging her father as he died.

At 5:55 p.m., Trooper Warmington called Frances and told her he wanted her to come to the house to view her property. When she said she did not want to come, Warmington said the house was being boarded up. When Frances arrived at the house at 7:30 p.m., Warmington said items had already been removed from the house and that she needed to come to the police station to view them.

She was driven to the Brockton police station, where police, including Warmington and Clark questioned her from about 7:45 p.m. until 11 p.m. By the time the interrogation ended, Frances had been awake for about 18 hours. The interrogation was not recorded electronically. Police would later say they took notes, but the notes were destroyed after they jointly prepared a report. The officers repeatedly asked Frances how gasoline got on her sweatpants. The sweatpants had been sent to the Massachusetts State Police crime lab, but no tests had been conducted at that time. Such tests were conducted later.

In the meantime, police had found two notes under Kenneth’s bed outlining a plan to buy gasoline, spread it around the house, and set it ablaze. While Frances was being questioned, officers confronted Kenneth with the notes. After first denying any knowledge about the fire, Kenneth said that “a black kid at school” had given him the contents of the notes and told him to share it with others to avoid bad luck.

When police were skeptical, Kenneth admitted he wrote the notes, but did not intend to kill anyone. When police suggested they could tell he did not act alone, Kenneth told police the fire was Frances’s idea and that she told him to write the notes. He told police they planned to create a trail of gasoline leading up the cellar steps into the living room and up the stairs to the second floor.

Kenneth said that on the night of the fire, he woke up to a noise and found Frances in the basement with one or two gallon water jugs filled with gasoline. He said he put two gasoline-filled Sprite bottles on the top of the basement stairs, but otherwise refused to help her, and instead ran to his room and locked the door. He said that on the way to his room, he saw Frances in the living room with a jug of gasoline. He said it appeared that Frances had doused the sofa, the stairs and her parents’ door with gasoline. He said he was still in his bedroom when he heard a “fooh” sound—the sound of a fire starting—and the house was filled with flames and smoke.

Police brought Kenneth to the room where Frances was being interrogated and had him confront her with his accusations. She continued to deny involvement. When police told her they were going to take her to booking, Frances stated, “Fine, I did it,” but quickly recanted that statement. Frances was then taken to a garage outside the booking area to be processed for arrest. Detective Clark said that while Frances was handcuffed to a rail outside the booking area, she made more admissions that she immediately retracted.

Kenneth and Frances then were arrested. Frances was charged with two counts of murder and one count of arson. Kenneth was charged with two counts of murder. A motion to suppress Frances’s statement was denied in June 2005.

Frances, a senior in high school who had been accepted as a student at Suffolk University, went to trial in Plymouth County Superior Court on January 8, 2008. The prosecution claimed Frances and Kenneth filled two milk jugs and two soda bottles with gasoline, and then placed the bottles on the top basement stair and the gallon jugs on a stair leading to the second floor and inside Jimmy and Anne’s bedroom before igniting the fire. The prosecution contended that Frances stood to benefit from a $100,000 life insurance policy and that she believed her parent were a burden. The prosecution also contend she was upset because her father forbade her from seeing her boyfriend and because she wanted to live away from home when she went to college.

The prosecution’s case relied primarily on the testimony of police officers who said that Frances had admitted—and then recanted—involvement in planning the fire.

Warmington testified that Frances showed little emotion on the day of the fire, even after both her parents had died. He said he asked her to come back to the house to view her property and when he offered condolences, Frances seemed concerned only about her possessions. He said she replied, “How’s my stuff?”

Detective Clark testified that he questioned Frances repeatedly about how gas got on her sweatpants, but she could not explain it. After denying any involvement in the fire, Clark testified he told her he was going to take her to be booked, but Frances said she didn’t want to go and wanted to keep talking. When he asked again to explain how accelerant got on her sweatpants and she blurted out: “Fine, I planned it,” Clark testified. “Then she paused and said, ‘No, I didn’t.’”

At that point, Frances was taken to a garage outside the booking area to be arrested for murder. She was handcuffed to a railing. Clark testified he came back to resume talking to Frances another officer told him she said she wanted to talk again.

Clark testified that at this point, she told him she set up cups filled with gasoline on the stairs leading from the basement up to the living room and that the cups were milk and soda containers. He first testified she told him she got the gas from a gas container downstairs, but on cross-examination he admitted that was not correct. In addition, no cups were found on the basement stairs. Clark also testified that five to 10 seconds later, Frances said she was lying and that she was not involved. He testified that for most of the interrogation she was “emotionless.” When questioned about why the interrogation was not recorded, Clark said there were no recording devices in the station.

State Police Trooper Michael Peters testified that he was “certified” as an “accelerant detecting canine handler,” and that his canine, Gala, also was “certified.” He testified that “to pass the test we have to be 100 percent.” Peters testified that Gala alerted for the presence of gasoline at the scene of the fire and on Frances's sweatpants confiscated at the hospital.

In addition, John Drugan, a Massachusetts State Police crime lab chemist, testified that he had detected gasoline residue on the sweatpants and two melted plastic discs recovered from the home, and that fluid removed from the two Sprite bottles was gasoline.

Trooper Jeanne Stewart of the Massachusetts State Police Fire and Explosion Investigation Section testified that the fire was ignited in a mattress in the basement, but said no accelerants were found there. She concluded there was no gasoline on the couch, noting that the velvet cushions on the front of the couch and an afghan or blanket on the couch were all undamaged. Stewart also testified that there was no fire damage to the wooden stairs leading from the living room to the second floor indicating that no gasoline was on those stairs. Trooper Stewart also testified that she observed a rolled towel at the threshold of the door to Kenneth Choy's room that may have been placed there to prevent smoke from entering the room.

On January 24, 2008, after seven days of trial, the court declared a mistrial when the jury was unable to reach a unanimous verdict. On January 25, Kenneth went to trial on two counts of murder. He was not charged with arson. After several days of deliberation, the jury acquitted Kenneth, and he was freed.

Frances’s trial lawyers sought to bar a retrial. They argued that the prosecution presented its case on the premise that Frances was guilty as the principal actor and not acting jointly with Kenneth. As a result, the jury had not been given any instruction on joint culpability. The lawyers argued that the prosecution should be precluded from retrying Frances on a joint venture theory having failed to introduce evidence of joint venture in the first trial.

That motion to bar retrial was denied, and in 2010, the Massachusetts Supreme Judicial Court upheld that ruling.

Frances went to trial a second time in January 2011. At this trial, Kenneth Choy testified for the prosecution after he was granted immunity. He admitted writing the notes, but said he had “no intention” of setting the fire. He admitted placing two Sprite bottles filled with gasoline on the basement stairs, but said he did not spread any gasoline. He testified that he ran up to his room and that on the way, he saw Frances holding a gallon jug of gasoline or water, and the couch and the stairs to the second floor had been doused with gasoline.

He said he was in his room with the door locked when he heard liquid being poured and then a “whoosh sound, like a fire starting….You know, like you light the match and something just light on fire very quick or you light something very quick. I just hear whoosh sound.”

However, on February 11, 2011, a second mistrial was declared when the jury, on its fifth day of deliberation, said it was unable to reach a unanimous verdict. On February 25, 2011, Frances was released on bond pending a retrial.

Frances' trial attorneys again raised double jeopardy issues in a petition to a single justice of the Supreme Judicial Court which was denied.

She went to trial a third time on Monday, May 2, 2011. On the day the trial was to begin, the prosecutors, John Bradley and Karen O’Sullivan, said that on April 29, the previous Friday, Kenneth had taken a one-way flight to Hong Kong. Bradley told the judge he learned from Kenneth’s attorney that Kenneth “was in Hong Kong with his mother.”

As a result, the trial judge ruled that Kenneth was “unavailable” and allowed the prosecution to have Kenneth’s testimony at the second trial read to the jury in the form of a role play with a prosecutor sitting in the witness stand acting as Kenneth.

The defense presented testimony from Dr. Richard Ofshe, a false confession expert, about false confessions in general, but the court did not permit him to identify for the jury the specific interrogation techniques or situational or dispositional factors present in Frances’s case associated with false and coerced confessions.

There was no dispute that only Kenneth's fingerprints were on his handwritten notes and that Frances's fingerprints were not on the Sprite bottles or other items submitted for fingerprint testing.

On May 16, 2011, the jury convicted Frances of two counts of murder and one count of arson. She was sentenced to life in prison without parole.

In 2012, the U.S. Supreme Court declared unconstitutional statutes requiring a sentence of life without parole for juveniles, and in 2013 the Supreme Judicial Court interpreted the Massachusetts Declaration of Rights to apply that right retroactively. In 2015, while Frances’s appellate attorney, John J. Barter, was working on her appeal and a motion to reduce her sentence since she was a juvenile at the time of the crime, the prosecution disclosed evidence showing that the trial prosecutors—Bradley and O’Sullivan—had sent numerous emails back and forth between each other and to others that made racially and sexually discriminatory remarks about Frances, members of her family, and Asians in general. The prosecution had previously disclosed some of this material in an unrelated criminal case, and Barter had obtained some of it independently.

In 2016, after the prosecution had not responded completely to requests for additional email and related materials, Barter filed a motion to preserve and disclose the information. A legal fight ensued. In 2017, Barter was joined by Professor Sharon Beckman, director of the Boston College Law School Innocence Program, along with BCIP staff attorney Charlotte Whitmore and their students. Finally, in the spring of 2019, the prosecution turned over hundreds of pages of emails and other documents.

“These emails included ‘jokes’ about Asian people, photographs depicting Asian people in a demeaning way, and commentary specifically about Frances, alleging that she was engaged in an incestuous relationship with her nephew and mocking her,” according to a motion filed in January 2020 seeking post-conviction relief. “Comments were made that ridiculed members of the Choy family who were also the surviving members of the family of Jimmy Choy and Anne Choy, who were the victims of the fire.”

The motion cited other newly discovered evidence and presented, in excruciating detail, the emails of O’Sullivan and Bradley.

“The prosecutors’ racially derogatory words and images include a depiction of Frances as a girl scout who burned a house down because the occupants did not ‘buy the [obscenity] cookies,’ and the suggestion that she would commit incest with her accuser, Kenneth Choy,” the motion said. “One email they exchanged included a depiction of a small girl outfitted in KKK garb.”

The motion noted that the prosecution had “conceded to this Court that ‘the two prosecutors were biased against Asians. Their emails prove that. It’s reprehensible. We’re not standing up and defending that in any way, nor could we.’”

The motion argued that trial prosecutors’ racial animus evidenced in their emails was constitutional error. In addition, citing social science research on stereotyping of Asians, the motion said that the bias of the prosecutors shaped their presentation of the case to portray Frances as an emotionless liar who cared only about herself and her personal possessions.

The motion said that even before the third trial began, the prosecution had misled the trial judge, Linda Giles. Bradley gave a false account of what had transpired in the second trial—which had been before a different judge—relating to a particular jury instruction. The motion said Bradley was trying to convince Giles to instruct the jury that it could convict Frances either as the principal actor or an aider and abettor—even though the Massachusetts Supreme Judicial Court had previously ruled that such an instruction was forbidden.

The motion also cited a review of the testimony and test results that were said to show that there was gasoline residue on Frances’s sweatpants. Susan Seebode Hetzel, an analytical chemist, provided an affidavit saying that a review of the tests, when “measured by the applicable and generally accepted objective science standards, does not support a conclusion that the 100% polyester sweatpants contained gasoline residue.” The motion said that that either the trial court had erred in denying Frances’s trial lawyer’s motion for funds for an expert or Frances’s trial lawyer had provided an inadequate legal defense by failing to retain an expert to examine the test results or to challenge the “canine alert” evidence.

The motion also said that the defense had discovered a witness who said that Kenneth had admitted that he had gas on his clothes and that he—not Frances—had started the fire. The witness said that Kenneth bragged about being acquitted “because he [was] the one who bought the gasoline, set the fire, and had gas on his clothes.”

According to the witness, Kenneth “said that when he was brought here, he did not know the Choys, and he did not think of them as blood relatives, and that his mother paid them money to take him into their home. He said that after he was in the country for a while, the Choys kept asking his mother in Hong Kong for more money.”

The witness said, “Kenneth Choy told me that he and his mother were mad at the Choys because they kept asking for more money and Kenneth Choy and his mother wanted to kill Jimmy and Anne Choy in revenge.”

Frances’s trial lawyer knew about the witness but never interviewed her, even though he knew that Kenneth had once falsely accused the witness of criminal actions committed by Kenneth.

The motion also said that the defense had discovered that there were subsequent fires in the Choy home after Frances was arrested and that the prosecution was aware of the fires, but did not inform the defense. The prosecution also failed to disclose that Kenneth had been charged with possession of drugs with intent to distribute in a school zone, which carried a mandatory sentence of imprisonment and also failed to disclose that the charge had been dismissed after the prosecution said it had no objection. Compounding that failure, the prosecution falsely argued at trial that the school zone drug charge was still pending, the motion said.

The motion alleged that O'Sullivan knowingly or recklessly induced false testimony from Detective Clark that Frances told him she filled up cups with gasoline from a gas container “downstairs.” In the first trial, Clark admitted on cross-examination that his direct testimony that Frances said she got the gas from downstairs was not correct. Nevertheless, the night before his testimony in Frances’s third trial, O’Sullivan sent an email to Clark’s personal email account with a script for him to follow that include the testimony that he had already admitted under oath in the first trial was not correct.

When Clark followed the script the next day and the defense attempted to cross-examine him about the inconsistent testimony, O’Sullivan objected and the judge refused to allow the defense questioning to continue.

The post-conviction attorneys also presented an affidavit from a retired Brockton Police detective contradicting Detective Clark’s testimony that there were no recording devices in the Brockton police station available to detectives in April 2003.

Moreover, they claimed that during closing argument, the prosecution argued that no gasoline was found on Kenneth’s clothes when in fact Kenneth’s clothes had never been sent for testing at all.

In March 2020, Frances’s lawyers filed a motion seeking her release on bail pending a ruling on the motion for new trial, citing her spotless record while in prison, including obtaining a GED and Bachelor of Arts Degree in sociology magna cum laude from Boston University Metropolitan College. She completed 1,000 hours of training and passed the Massachusetts Cosmetology Examination. And she spent five years training service dogs for America’s Vet Dogs program.

On April 13, 2020, the prosecution filed a non-opposition to the motion and moved for an expedited evidentiary hearing. The court granted the motion to stay Frances's sentence the same day and she was released nearly 17 years after she was first arrested on the day of the fire.

On September 8, 2020, the prosecution conceded that defense motion should be granted. The prosecution agreed that the racist and sexist emails were “reprehensible” and that the prosecution had engaged in misconduct. The prosecution said trial prosecutor Bradley had been terminated in 2013 and O’Sullivan left the office voluntarily prior to 2015. In addition, the appellate prosecutor who was assigned to handle the post-conviction requests from the defense for the emails, Gail McKenna, was terminated for withholding the information and for failing to obey court orders to disclose the information.

The prosecution also informed Frances’s lawyers that it had discovered Detective Clark’s file. The file contained his handwritten and typed notes regarding the interrogation—notes that Clark had falsely testified he had destroyed. These notes contained information that was inconsistent with Clark’s testimony. In addition, Clark’s file included previously undisclosed Brockton Police reports showing that Jimmy Choy had reported to police that Kenneth was dealing drugs and had run away from home, evidence of another possible motive for him to commit the crime.

On September 17, 2020, Associate Superior Court Judge Linda Giles granted the motion for a new trial and vacated Frances’s convictions. Judge Giles noted that the prosecution agreed that the convictions should be vacated (although not “in each and every ground”) because “justice may not have been done.” Judge Giles, who presided over the third trial, said that if she had aware of the emails demonstrating the prosecutors' anti-Asian bias during the trial, she would have declared a mistrial and removed the prosecutors—O’Sullivan and Bradley—from the case.

The judge also cited the new evidence contradicting the scientific testimony about gasoline residue and the testimony that Kenneth had admitted committing the crime as a ground for granting the new trial.

The judge ruled that the prosecution had withheld evidence of the other fires after Frances was arrested, had failed to disclose that it had not opposed the dismissal of Kenneth’s school zone and failed to disclose the police reports evidencing a possible other motive for Kenneth to commit the crime. Judge Giles also found that the prosecution had falsely argued to the jury that Kenneth’s clothes were gasoline-free and that his school zone drug charge was still pending.

Judge Giles said that the prosecution’s explanation that Kenneth had suddenly left the country to return to Hong Kong and how they learned of it through an email from Kenneth’s lawyer three days prior to the third trial was questionable. The judge said that the evidence “raises questions about the candor of the trial prosecutors.” Judge Giles said that the failure of the prosecution to provide evidence of emails that Bradley said were sent at the time “causes this Court to have doubts about the representations made to the Court about the circumstances of Kenneth’s departure, and the trial prosecutors’ candor on the subject.”

The judge also found that the prosecution had made misleading statements about what had occurred in the initial trials that ended in mistrials. The judge said that Bradley’s inaccurate representations to this court… “go beyond the limits of zealous advocacy, and cannot be condoned by this court.”

“Collectively, the prosecution’s misleading statement to the Court and in closing argument, presentation of evidence that appears in retrospect to have been false, and inconsistent positions in this case convince this Court that justice may not have been done,” Judge Giles ruled.

On September 29, 2020, the Plymouth County District Attorney’s office dismissed the charges.

– Maurice Possley

Report an error or add more information about this case.

Posting Date: 10/11/2020
Last Updated: 10/11/2020
State:Massachusetts
County:Plymouth
Most Serious Crime:Murder
Additional Convictions:Arson
Reported Crime Date:2003
Convicted:2011
Exonerated:2020
Sentence:Life without parole
Race/Ethnicity:Asian
Sex:Female
Age at the date of reported crime:17
Contributing Factors:False Confession, False or Misleading Forensic Evidence, Perjury or False Accusation, Official Misconduct, Inadequate Legal Defense
Did DNA evidence contribute to the exoneration?:No