 Clifton Caldwell
The police investigated, and in November 1999, the three brothers were arrested, charged with aggravated rape, and placed in the Plymouth County House of Correction. According to court records, Clifton Caldwell, who was then 42 years old, was in the jail from November 24, 1999 to December 9, 1999, when he was released on bond.
During the investigation but prior to the arrests, S.J. also said that a man approached her at an in-patient treatment facility, pushed her in the back, and said, “I just wanted to let you know that your father is coming for you.” S.J. said the man was her Uncle Ricky. S.J. told her mother, and the police arrested Ricky Caldwell on an assault charge. That case went to trial prior to the rape case, and Caldwell was acquitted.
The three Caldwell brothers were to be tried together in Plymouth County Superior Court, but a few days before the start, prosecutors disclosed a new witness. A man named George Thompson, who had shared a cell with Clifton Caldwell, said that Caldwell had confessed to him. Because of what is known as the Bruton rule, which bars the use of a confession by one defendant against a co-defendant, Judge Thomas Connolly severed Clifton Caldwell’s case.
The prosecutor said in court that the state had made no offers or promises of help to Thompson. He said that Thompson “might have” asked for help with his probation, but the district attorney declined to assist, resulting in Thompson serving all six months in jail for violating his probation for possession of marijuana.
Caldwell’s attorney, Lindsay Rand, did not ask for a continuance to investigate Thompson, and the trial began on December 9, 2002.
S.J., now 16 years old, testified that her father sexually assaulted her on several occasions, including the alleged incident involving her two uncles that took place in the late summer or early fall of 1991. She said that although she closed her eyes during much of the assault, she knew Clifton Caldwell was holding her arms because she recognized his laugh.
S.J. also testified that she gave false testimony at the assault trial of Ricky Caldwell. She said that when she attended the trial and saw her uncle, she realized he was not the man who pushed her. She told her mother, but not the prosecutor. She was then sworn in and testified falsely that Ricky Caldwell pushed her.
Thompson testified that he met Clifton Caldwell and his brothers at the jail when the four men were in the holding area. Later, Thompson was assigned to a two-man cell with Clifton Caldwell. He testified that after they talked for a bit, Caldwell told him that he was mad at his brothers because they were always getting him into trouble. A few days later, Thompson testified, Caldwell said he did not rape his niece; he just held her arms. According to Thompson, Caldwell said he and his brothers were high on crack cocaine at the time.
Thompson did not come forward with this information until the end of January 2000, more than a month after Caldwell left the jail. He testified that although there was a code of silence that discouraged “snitching,” rape was different. He said his girlfriend had been raped and his sister had been raped by their father.
During cross-examination, Thompson testified that he did not ask for preferential treatment on any of his outstanding charges. He said he had been in jail “maybe three times” for motor-vehicle offenses. He admitted that he tried to get Caldwell to talk about the rape charge.
Clifton Caldwell did not testify. Sarah, S.J.’s younger sister testified. She said that she had no memory of the alleged incident. Sarah testified that S.J. told her she had seen it, and then Sarah told her mother that she had seen it and later gave a similar statement to the district attorney. But those statements were false. Sarah testified that her father used to hit her and her mother, and that he would take baths with Sarah and S.J.
The girls’ mother, Cristina Roberts, testified that S.J. did not disclose any sexual abuse in 1991, but that her daughter frequently walked around the house naked. She also said they fought over S.J.’s desire to watch a movie called Mother’s Day, which was about a mother and her two sons who commit graphic acts of rape. Roberts testified that S.J. said her father let her watch the movie.
Roberts filed for divorce from Clinton Caldwell in October 1991. She testified that she never saw Clifton Caldwell, who was Clinton’s twin, hurt either of the girls.
During closing arguments, the prosecutor acknowledged the defense’s attack on S.J.’s credibility but said that Thompson provided the necessary corroboration. “[Caldwell] told you through the testimony of George Thompson,” the prosecutor said. “He told us what he did … His words from his very own mouth. Do you need any better evidence? Can you think of any better direct evidence of what happened in that dark bedroom? That’s from his lips.”
The prosecutor told jurors that S.J. had been grievously harmed. “You, the jury, can do something about it,” he said. “When you go back into that deliberation room, you talk about the evidence and you come out here and deliver a verdict … You can do something about what this man did. You can hold him responsible for what he did to that little girl. The evidence has shown you beyond any reasonable doubt that he pinned her to that bed and his brothers raped her. The only true, fair, and just verdict is that he is guilty as charged.”
The jury convicted Caldwell of aggravated rape on December 11, 2002. He was later sentenced to 27-35 years in prison. Two weeks later, without the testimony of Thompson, a separate jury acquitted Ricky and Clinton Caldwell of the same crime. Years later, a judge would write, “The inequity in the outcomes is not lost on the court.”
In his direct appeal, Caldwell said the prosecutor made improper remarks during his closing argument. He also said that Judge Connolly had erred in allowing the state to introduce other evidence about Clinton Caldwell’s physical and sexual abuse of S.J. Finally, he said that after the trial, S.J. and her mother paid Thompson $50.
The Massachusetts Court of Appeals affirmed the conviction on March 14, 2005. The court said that there was no evidence that the small payment to Thompson constituted a quid pro quo. The court also said that the evidence against Clinton Caldwell was central to understanding why S.J. waited so long before coming forward. The court said the prosecutor “crossed the line of permissible advocacy” when he urged the jury to “do something,” but the misconduct did not taint the verdict.
Caldwell filed a second motion for a new trial in 2007. Now, he asserted that Rand had been ineffective by failing to ask for a continuance, to prepare for the case, to impeach Thompson, and to object to the prosecutor’s improper statements.
Caldwell’s appellate attorney had obtained an affidavit from Rand, who acknowledged his ineffectiveness. Rand had never tried a case in superior court, and he said in the affidavit that he was caught off-guard by Judge Connolly’s decision to split the case. “When at the last minute, the trial judge decided to sever the trials, I was not prepared to go forward.”
At an evidentiary hearing, Rand clawed back his statements, saying he was prepared. He said he felt responsible for the outcome, but “whether or not it rises to the level of ineffective assistance of counsel, I really don't think so.”
Rand also said he decided not to go through Thompson’s entire criminal history, because most of the offenses did not deal with “crimes of moral turpitude.”
Judge Connolly affirmed the conviction on February 23, 2010, and the Massachusetts Court of Appeals affirmed that ruling on May 8, 2013.
In 2018, Caldwell moved for a new trial based on new evidence of innocence. Now represented by Lisa Kavanaugh, with the Innocence Program at the Committee for Public Counsel Services (CPCS), and Ira Alkalay, Caldwell said the state had failed to disclose information about Thompson’s past work as a police informant that would have undermined his credibility. After securing a court order for discovery from the prosecutor’s files, Caldwell's team found a note that said: “George Thompson. Met all 3 in Plymouth holding. Todd Cambra called. Testified for Comm. before in Bristol – got kid to write down what happened.”
Cambra was a state trooper, and jail records showed he met with Thompson two weeks before Thompson told the police about Caldwell’s alleged statement. The Bristol case was from 1984 and involved a defendant who was in jail on a rape charge when Thompson got that man to write a confession under the guise of assisting him with an alibi. Thompson then gave the statement to police.
In addition to this new evidence, the motion also again asserted claims about Rand’s ineffectiveness in failing to use Thompson’s extensive criminal record to impeach his credibility. The motion also said that Rand should have introduced expert testimony about how S.J.’s exposure to violent, pornographic movies could have created false memories.
Judge Angel Kelly held three days of evidentiary hearings in early 2019. Thompson had died in 2016. Dr. Ayanna Thomas, an expert on human memory and the intersection of aging and memory formation, testified about the factors that could have caused S.J. to form false memories. Rob Selevitch, the CPCS Innocence Program investigator, testified that he talked with a retired state police lieutenant who said that Thompson worked as a police informant for him and others in the years prior to Caldwell’s conviction. The lieutenant also died in 2016 and never signed an affidavit. At an evidentiary hearing in 2009, Thompson had confirmed his working relationship with the lieutenant.
Judge Kelly denied Caldwell’s motion for a new trial on August 9, 2019. She said that although the state had failed to disclose Thompson’s previous cooperation with the state and Rand did not deeply explore Thompson’s records, these failures did not rise to the level to warrant a new trial. “It would be speculative to conclude that this additional impeachment [evidence] likely would have affected the jury’s conclusion.” Judge Kelly also said that expert testimony about false memories was too tangential to the facts of the case.
Caldwell appealed. His attorneys wrote: “Caldwell’s argument is simple: He was wrongfully convicted of an offense that he did not commit and that a separate jury concluded was not proven beyond a reasonable doubt. His conviction turned, not on evidence of the crime, but on evidence of a purported confession to a fellow cellmate. Yet the jury never learned how or why that cellmate might have fabricated that confession by drawing on his past experience as an informant. This injustice happened because the prosecutor sold Caldwell’s jury a false bill of goods about who Thompson really was, and because the prosecutor withheld – and trial counsel failed to develop – key evidence that could have led the jury to reject his testimony altogether.”
His attorneys argued that Judge Kelly erred in her ruling. The undisclosed note didn’t just detail Thompson’s previous role as a jailhouse informant; it also called into question his motive for talking to police about Caldwell, because it documented Thompson’s contact with other law enforcement before coming forward.
“Counsel could have used this information to argue that the jury should reject Thompson’s good Samaritan façade,” the motion said.
Caldwell was released from prison on bail on May 18, 2020. His attorneys had petitioned the state for release, in part due to his pending appeal and in response to the COVID-19 pandemic sweeping through the state’s prisons.
On May 6, 2021, the state’s Supreme Judicial Court reversed Judge Kelly’s ruling and ordered a new trial. The court said the note about Thompson’s work in another rape prosecution was exculpatory evidence that could have made a difference at Caldwell’s trial. The court said the note indicated that Thompson had cooperated with the state in a similar capacity, and it bolstered the defense theory that Thompson’s dislike of rapists was strong enough for him to lie on the witness stand.
“Disclosure of the prosecutor’s note, which referenced the witness’s role in a separate prosecution, would have provided the defendant with the strongest available basis for impeaching the credibility of this critical witness,” the court said.
On January 11, 2023, the state dismissed the charge against Caldwell.
– Ken Otterbourg
|