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Milton Jones

Other Exonerations from Suffolk County, Massachusetts
Just before 10 p.m. on August 30, 1975, two men robbed the Golden Café in the Roxbury neighborhood of Boston, Massachusetts. Albert Dunn, who was 58 years old and the bar’s owner, was shot in the head and killed.

The two men took money from the cash register and from 43-year-old Rita McLellan, who worked at the café. Two other women were in the bar: McLellan’s daughter, Deborah McLellan, who was 21 years old, and 58-year-old Alma Condo.

Officer Alfred Bozzi of the Boston Police Department arrived at the café a few minutes later. He would later testify that Condo and Deborah McLellan were in a “state of hysteria,” and unable to give him a description of either man. Bozzi would also testify that Rita McLellan told him that the shooter was a “Black male, approximately 5’6”, slim build, had a flat hat … and he carried a gun.” She said that the other man was also Black, “but approximately 6 feet tall, 25 years old, with a bright colored shirt.”

Later that night, Detective Louis McConkey interviewed the three women as a group in an effort to get a better description of the robbers. During this interview, Rita McLellan revised her height of the gunman, now describing him as taller than her earlier estimate. McConkey wrote down a description based on this group interview of “black males and about six foot tall.” He did not list other details, later testifying that everything was too “sketchy” to write down.

On September 2, 1975, and several other times in the following weeks, detectives McConkey and Peter O’Malley showed a photo array to Condo that included a photo of 23-year-old Milton Jones. She did not make an identification. The available records don’t indicate why police included Jones in the array, although he had at one time lived in the same apartment complex as Condo, about a block from the bar.

In the middle of September, Condo complained to the police about a young man she said was following her. Detective O’Malley showed Condo a photo of the same array that included Jones. She did not identify him as one of the robbers, but she identified him as the man she believed was following her.

On September 17, 1975, detectives O’Malley and McConkey visited Rita McLellan at her home and showed her the same set of photos of 12 men. She looked through the array at least twice, and then selected a photo of Jones and said he was the gunman.

The two detectives also showed Deborah McLellan the same photo array on September 17 that included Jones. She made no identification.

Police arrested Jones on September 22, 1975, charging him with first-degree murder, armed robbery, and unlawful carrying of a handgun. There was no physical or forensic evidence tying him to the murder and robbery. When questioned, Jones told police he did not commit the crime. Investigators found a .32-caliber slug on the floor of the bar and a .38-caliber Smith & Wesson under Dunn’s body that they said was not the murder weapon.

Jones appeared in Roxbury District Court for a probable-cause hearing on October 24, 1975, sitting alone in an area for defendants known as the dock. At the hearing, after seeing Jones in court, Condo now identified him as a participant in the robbery. Before the hearing began, a prosecutor asked Deborah McLellan to look at a photo array that included Jones. She did not make an identification, and the state did not call her as a witness. But after watching her mother make an in-court identification, Deborah McLellan told McConkey that Jones was the gunman.

A suppression hearing on the witness identifications was held on September 20, 1976, prior to the start of Jones’s trial in Suffolk County Superior Court. At the hearing, Bozzi testified about Rita McLellan’s description of a gunman standing 5’ 6” tall. He said she described the bar as “dimly lit” at the time of the robbery.

McConkey testified that Rita McLellan changed her mind about the height of the gunman after she and the other witnesses discussed the matter.

Condo testified that she initially didn’t make an identification from the photo arrays because she was too upset. She said that she knew from the police that Jones had been identified as a participant in the robbery when she went to the Roxbury courthouse for the probable-cause hearing.

Rita McLellan testified that she told police on the night of the crime that the gunman was tall, with a bright-colored shirt. This was at odds with the statements taken by the police.

Deborah McLellan appeared on the second day of the hearing. She testified that the bar was well-lit and that she gave a complete description of the shooter to police that night, describing the man as “22 years old, tall and thin, Black with a light complexion, close-cut afro hairstyle, no beard or mustache.” There was no record of that statement.

Judge James Roy of Suffolk County Superior Court denied the motion to suppress.

At the trial, Rita McLellan testified that the bar was lit well enough to pour a shot and make out a check. She said that both men jumped over the bar, but that she didn’t get a look at the second robber’s face. She testified that she did not recall saying the gunman wore a hat or was only 5’ 6” tall. Although Bozzi testified that Rita McLellan made these statements, his report erroneously attributed the description to Deborah McLellan. As a result, Kevin Keating, who was Jones’s attorney, was unable to cross-examine Rita McLellan about this inconsistency.

Deborah McLellan testified that she gave a complete description of the gunman on the night of the robbery and that she identified Jones from a photo array prior to the probable-cause hearing.

Condo testified that after the shooting she picked Jones out of a photo array as the man she said was following her. She testified that she did not tell police at the time that Jones was the gunman because “I was very scared.”

O’Malley testified that Deborah McLellan became nervous when viewing photographs at the police station in mid-September 1975. He said that although she became emotional when viewing Jones’s picture, she never said “this is the one.”

Jones did not testify, but three alibi witnesses testified on his behalf. Their testimony was undercut by evidence suggesting they had the day wrong and by one witness testifying that he knew two weeks before police arrested Jones that he needed to remember the events of August 30 to help his friend.

The jury convicted Jones on September 22, 1976 of second-degree murder, two counts of armed robbery, and unlawful use of a weapon. He received a sentence of life in prison, with parole eligibility after 15 years.

Jones appealed his conviction, arguing that Judge Roy should have suppressed the identifications. The Supreme Judicial Court of Massachusetts affirmed the conviction on June 7, 1978. Jones was released from prison on November 2, 1990 and placed on lifetime parole.

Since Jones’s conviction, there has been extensive research about the prevalence of mistaken witness identification and the situations that give rise to it, such as cross-racial misidentification. (The McLellans were white; Condo was Black.) The courts have responded to various degrees with rulings and guidelines intended to minimize the problem and to prevent flawed identifications from being so easily used in the courtroom.

On August 30, 2020, nearly 30 years after his release from prison, Jones filed a motion to vacate his conviction. He was now represented by Sharon Beckman and Charlotte Whitmore of the Boston College Innocence Program at Boston College Law School.

The motion said Jones “was convicted solely on the basis of eyewitness testimony that today would be either inadmissible, impeachable, or undermined by post-conviction discovery, expert testimony, and changes in the law and jury instructions taking account of current scientific consensus on the fallibility of eyewitness testimony.” In addition, his attorneys discovered undisclosed evidence in the files of prosecutors and police that underscored the problems with the eyewitness identifications.

Both Deborah McLellan and Condo made their initial identifications of Jones at the probable-cause hearing, where Jones was by himself in a setting that suggested involvement with a crime. These so-called “show-up” identifications, according to the motion, have been trimmed back by a series of Massachusetts court rulings and can now only be used under circumstances that were not present in the Jones case.

Similarly, the motion noted that the jury received limited instruction on how to weigh witness identifications. Judge Roy said: “You have a right to evaluate and consider whether or not a witness has a good recollection and a good memory … You must consider what opportunity these witnesses had to observe the two persons who came into the barroom.”

In 2015, the Supreme Judicial Court issued model jury instructions on identifications that say, in part: “The mind does not work like a video recorder. A person cannot just replay a mental recording to remember what happened. Memory and perception are much more complicated.”

In closing arguments, the prosecutor told jurors that the identifications were credible, noting that Rita McLellan appeared to be “careful,” “reasonable,” and “decent.” Such an argument wouldn’t be allowed today, the motion said. The model instructions say a “witness may honestly believe he or she saw a person, but perceive or remember the event inaccurately.”

Keating didn’t receive the grand jury testimony that led to Jones’s indictment. Before the grand jury, Rita McLellan testified that the man who shot Dunn told his accomplice, “Let’s get out of here, Larry.” There was a similar reference to a man named Larry in a police report from the day after the robbery. This report was also not disclosed to the defense.

The motion for a new trial asserted that these statements, combined with other evidence, excluded Jones as a participant. Jones couldn’t be “Larry,” the motion said, and Rita McLellan, according to Bozzi’s testimony, had effectively eliminated him as the gunman because she said that man was 5’ 6” tall. (Jones is 6’2”.)

On April 13, 2021, the Suffolk County District Attorney’s Office filed a response, asking the court to grant Jones’s motion. It said, “An examination of the record reveals that the identification procedures in this case resulted in flawed and questionable identifications – identifications which comprised the only evidence linking the defendant to the shooting.”

As part of the district attorney’s office’s review, the Conviction Integrity Unit interviewed Deborah McLellan, the only witness still alive. She said that she had not been shown a photo array but rather had looked through books of mugshots at the police precinct. The state’s response called this an additional contradiction and discrepancy.

Despite the state’s agreement to vacate, Judge Michael Ricciuti of Suffolk Superior Court ordered a hearing on June 16, 2021, then requested additional filings and a second hearing, which took place on June 28, 2022.

After the second hearing, Jones’s attorneys introduced a report by Miko Wilford and Nancy Franklin, two psychologists and researchers who have testified widely about memory distortion and misidentification. Wilford and Franklin said they had reviewed the trial material independently and agreed it was associated with “an extraordinary number of factors known to create misidentifications.”

“All [the witnesses] were subject to the impairing effects of brief exposure, dim lighting, multiple perpetrators, partial disguise, and delay to their first identification,” they wrote. “Rita and Deborah were subject to the additional effects of cross-race identification and weapon presence. None of the eyewitnesses provided an initial description that fit Mr. Jones, but all, following exposure to multiple factors known to artificially produce confident identifications of police suspects, came to identify Mr. Jones at trial. These post-event influences include co-witness contagion, non-blind state actors, poor fillers, suggestive instructions, multiple exposures to the police suspect, commitment effects, and highly suggestive show-ups, including at trial.”

On October 11, 2022, Judge Ricciuti vacated Jones’s convictions and ordered a new trial. “In this case,” he wrote, “no single ground here is alone convincing, but the combination of the failure to produce the ‘Larry’ evidence, coupled with the multiple concerns with the eyewitness evidence and the jury’s not having heard the now-available eyewitness science, acting in concert, was likely to have influence the jury’s verdict, and thus created a substantial risk of a miscarriage of justice.”

Prosecutors dismissed the charges against Jones on December 12, 2022.

In a statement, Suffolk County District Attorney Kevin Hayden said: “The facts of this case call into question not only the justness of the conviction, but whether Mr. Jones should have been charged in this incident at all. We must ever be mindful and vigilant that our responsibility to use facts to question convictions is as important as our responsibility to use facts to secure them.”

Jones is now 70 years old and works as the director of re-entry services at the Louis D. Brown Peace Institute, a Boston nonprofit that provides support for victims of violence and people being released from prison.

Prior to the dismissal, Beckman and Whitmore said in a statement, “We are overjoyed that Mr. Jones’s 47-year nightmare of wrongful conviction is coming to an end, and that this wonderful man, who has helped so many others heal from trauma, can now begin his own process of healing.”

– Ken Otterbourg

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Posting Date: 1/3/2023
Last Updated: 1/3/2023
Most Serious Crime:Murder
Additional Convictions:Robbery, Weapon Possession or Sale
Reported Crime Date:1975
Age at the date of reported crime:23
Contributing Factors:Mistaken Witness ID, Official Misconduct, Inadequate Legal Defense
Did DNA evidence contribute to the exoneration?:No