12 B.U. Pub. Int. L.J. 1

Boston University Public Interest Law Journal

Fall, 2002

Article

CONVICTIONS OF INNOCENT PERSONS IN MASSACHUSETTS: AN OVERVIEW

Stanley Z. Fisher^a1

Copyright © 2002 by Trustees of Boston University; Stanley Z. Fisher

I. INTRODUCTION

The plight of innocent men and women in this country who have been convicted of serious crimes, incarcerated, and sometimes sentenced to death, has recently come dramatically to national¹ and international² attention. A rising tide of prisoner exonerations, a significant number of which have relied upon DNA testing,³ has revealed how miscarriages of justice can result from deficient practices of police interrogation and eyewitness identification, inadequate disclosure of exculpatory evidence, acceptance of unreliable “junk science” and “snitch” testimony, and ineffective assistance of counsel.⁴ Although most of the exonerations have taken place in death penalty states such as Illinois, Florida, Oklahoma, and Texas,⁵ non-death penalty states, including Massachusetts, have also exonerated prisoners and face a steady stream of new claimants.⁶

These developments suggest the timeliness of the present study, in which I attempt to list, and briefly describe, all known cases of wrongful convictions in Massachusetts courts since 1800.7 My purpose is twofold. First, I hope to better inform the continuing debate over whether to reinstate the death penalty in Massachusetts.8 Advocates on both sides of the debate will presumably find interest in the history of wrongful convictions in the Commonwealth. Second, I hope to shed light on the reasons why wrongful convictions in Massachusetts have occurred. Both individual case studies9 and studies of cases drawn from the entire country10 can reveal the general causes of “false positives” in the criminal justice system and suggest avenues of reform. Many of our most critical procedural practices, however, are governed by state law. This suggests the value of studying, in each jurisdiction, the lessons that known miscarriages can teach.11 In the present Article, I try only to identify the relevant cases and point out some of their most obvious implications for law reform. More detailed analysis and discussion of practices causally related to the conviction of innocent persons in Massachusetts must await further scholarship.

This Article draws upon previous works by others, chiefly Edwin Borchard, Michael Radelet, Hugo Bedau, and Constance Putnam, who, in national studies of erroneous convictions, cited and described a number of Massachusetts cases dating from the early-nineteenth century to the late-twentieth century.12 To their descriptions I have added other cases, mostly from recent years, which came to my attention from the media and other sources. When time and access to materials have permitted, I have attempted to corroborate and supplement secondary accounts by examining trial transcripts, appellate briefs and records, and judicial opinions.

Part II of this Article sets forth my criteria for identifying and classifying “innocence cases.” In Part III, I divide the relevant Massachusetts cases (thirty-three in total) into three groups (tables), and discuss the cases in each group separately and alphabetically. Table A lists fifteen convicted persons who have been “officially” exonerated. Table B lists twelve convicted persons who have not been officially exonerated, but whose convictions have been reversed in circumstances raising strong doubts about their factual guilt. Table C lists six convicted persons who have won neither official exoneration nor freedom- all, indeed, were executed or died in prison - but as to whom strong, credible claims of factual innocence exist. In Part IV, I analyze and comment upon this data and draw conclusions about its implications for law reform in the Commonwealth. Part V consists of a brief conclusion.

II. WHO ARE THE “INNOCENT”?

Although one could define “innocent” persons more broadly, I restrict the concept to those who are “factually innocent” in the sense that they were not involved “physically or legally” in the crime.13 In adopting this restriction, I follow a well-established, conservative approach.14 I include only cases in which an innocent person was convicted,15 thus excluding cases of wrongful arrest, charge, detention, and trial where the charges were dismissed or the defendant was acquitted.16 Although a study of such “inchoate” miscarriages of justice might produce important insights into the fairness and efficacy of our criminal justice system,17 it seems wise to concentrate on the smaller, more visible number of cases in which innocent persons were convicted.18 Some of those persons were exonerated or released on direct appeal;19 others failed to win on appeal, but won relief, if at all, on motions for new trial or through executive pardon.20

Having defined “the innocent” as convicted, factually innocent persons, we confront the question of how to distinguish factually innocent convicts from factually guilty ones. This is no simple task. As Professor Daniel Givelber has noted, “[c]ourts virtually never address or rule upon the question of whether the defendant is truly innocent. Instead, judges and juries determine that a defendant is ‘not guilty’ or that a guilty verdict was infected by legal error and must be reversed.”21 The lack of any official mechanism22 for deciding claims of factual innocence, as opposed to guilt, makes it difficult to establish the negative proposition that a person did not commit the crime for which he was convicted.

Scholars disagree about the proper criteria for classifying any particular convicted person as “factually innocent.” In their groundbreaking 1987 article listing 350 erroneous convictions in potentially capital cases, criminologists Hugo Bedau and Michael Radelet were the first to propose criteria for systematically categorizing cases of wrongfully convicted, factually innocent persons.23 They conceded that only in rare cases is it possible to “definitively prove innocence;” usually, “[t]he most one can hope to obtain is a consensus [as to innocence] of investigators.”24 Consequently, they counted as miscarriages cases in which they believed that “a majority of neutral observers, given the evidence at our disposal, would judge the defendant ... to be innocent.”25 In applying this admittedly subjective standard, Bedau and Radelet characterized their 350 listed cases as forming a continuum, “from those where the evidence for innocence is conclusive to those where the evidence is slight.”26 The cases they classified as miscarriages fell into two main categories: (1) where “decisions by actors in the criminal justice system or in one of the branches of state government may indicate a belief that the conviction was in error;” and (2) where “indications from others not acting in any official role ... may point to an erroneous conviction.”27 Strong, but neither necessary nor sufficient evidence of official actions in the authors’ first category include prosecutorial acknowledgements of error, legislative grants of indemnity, executive pardon, commutation, or parole.28 The authors also treat judicial reversal of a conviction as “a significant indication of serious error either when the defendant is acquitted following retrial or when the indictment is dismissed (under an entry of nolle prosequi).”29 However, they consider acquittal or dismissal significant only “when it is based on incontrovertible evidence that no crime occurred or on other strong evidence that the defendant was indeed innocent.”30

Bedau and Radelet’s broad “neutral observer” standard31 has been criticized as “overly subjective” and “one sided.”32 In contrast, Professor Samuel Gross, in studying 136 cases of mistaken identification, used a narrower, allegedly more objective33 test that employs what might be termed a standard of “official exoneration.”34 Professor Gross chose to examine only cases in which the accused’s factual innocence was “undisputed,” as evidenced by official endorsement of that fact.35

For the purpose of understanding the causes of erroneous convictions and bringing about needed reforms, the study of cases in which innocent persons have been officially exonerated offers exceptional promise. In comparison to cases where authorities dispute the convicted person’s innocence, the fact of official exoneration is more likely to persuade key criminal justice constituencies, including police, prosecutors, judges, and legislators, that a problem exists for which solutions must be found.36 In this way, official exoneration cases can be used to legitimate law reform efforts and enlist support from influential segments of the body politic.

However, confining our attention to cases of “undisputed innocence” is problematic for two reasons. First, it gives undue weight to the judgments of executive officials and would result in the exclusion of cases that most observers would regard as miscarriages of justice. Second, direct evidence of official belief in an accused’s factual innocence is often lacking. In a number of cases, the observer can reasonably infer the existence of that belief from surrounding circumstances. Doing so, however, introduces an additional subjective element into application of the “undisputed” category. I will discuss these two points in order.

A. Unjustified Reliance Upon Executive Judgments on Innocence

As defined by Professor Gross, the “undisputed innocence” test is satisfied only if (1) a judicial or (2) executive authority “determines” that the accused is factually innocent, or (3) the original “prosecuting authority” expresses that belief.37 In practice, the first condition will rarely, if ever, occur. As indicated above,38 courts rarely have any occasion for passing upon, much less affirmatively “determining,” an accused person’s factual innocence.39 Almost exclusively, therefore, official exoneration will depend upon the decisions of executive pardon authorities and of the district attorney’s office that originally prosecuted the case. These officials will typically decide the convict’s factual innocence by assessing the significance and credibility of newly discovered evidence, a process that allows, if it does not invite, the play of personal and political biases. Thus, Joseph Salvati’s failure to win exoneration from pardon authorities was influenced by the FBI’s own misguided agenda.40 Similarly, efforts to obtain posthumous pardons for two executed men were apparently defeated by Governor King’s reluctance to appear weak on the issue of capital punishment in a re-election year.41 Therefore, although the “undisputed innocence” test offers an externally “objective” criterion, its application turns ultimately on personal, and possibly arbitrary, judgments by executive officials.

Furthermore, by counting only innocence determinations made by judicial or executive authorities, Professor Gross apparently intends to exclude legislative determinations. Presumably, therefore, Bobby Joe Leaster, who was exonerated only by the Massachusetts legislature,42 would not count as indisputably innocent. On the rare occasions43 when such legislative declarations occur, should they not “count?” At first blush, we might consider prosecutors and pardon officials better qualified than legislators to make reliable judgments about factual innocence. Those executive agencies can draw not only on the public record of proceedings against the accused, but also on information which, although reliable, might lie outside the record. Such information might exist in confidential records of past and current investigations, statements of confidential informants, and grand jury minutes. Furthermore, prosecutors and executive pardon officials are well-positioned to draw directly upon the informed views of specialized personnel, whose professional motivation and skills qualify them to interpret the relevant data accurately. Legislative decision makers, in contrast, might lack both ready access to the relevant data and the expertise to evaluate it properly. Legislators also differ from prosecutors and pardon officials in having a broader, more diffuse political mandate, one that is less focused upon law enforcement and crime control. Therefore, one might fear that their innocence judgments might respond more to political pressure than to the merits of the claim.

Notwithstanding the foregoing, a persuasive argument can be made that legislative declarations of innocence should “count.” Although legislators lack the law enforcement background and expertise of prosecutors and police, they normally hear and listen respectfully to the voices of those constituents. To the extent that legislators have a smaller psychological and political stake than executive officials in suppressing errors and abuses committed by law enforcement, they are more objective. Although political pressures operate on legislators, just as they do on district attorneys and pardon authorities, legislators on the whole respond to a wider set of interests than do executive agents.44 As representatives of the community at large, legislators are most likely to take an interest in exonerating convicted persons in particularly egregious cases.45 In such cases, their broad democratic base frees them to correct perceived injustices that the executive authorities will not remedy.46 Thus, the legislature can provide a valuable check on the executive branch when the latter withholds a deserved declaration of factual innocence.

In this Article, I seek to identify Massachusetts cases in which the convicted person’s factual innocence is “undisputed,” as defined by Professor Gross (Table A). However, for reasons discussed immediately below, I often base that categorization on inference rather than direct evidence. After identifying those cases, I go further by also considering, separately, cases in which no executive or judicial exoneration has occurred. My criterion for selecting those cases is whether strong reasons exist to believe in the convicted person’s factual innocence. I divide those cases into two groups: persons whose convictions have been reversed under circumstances raising strong doubts about their factual guilt (Table B) and other convicted persons as to whom strong, credible claims of factual innocence exist (Table C). These criteria are admittedly subjective in the sense that they call for a private judgment as to the convicted person’s factual innocence. In order to mitigate this subjectivity, I have taken several steps. First, I have attempted to learn the facts and evidence in each case by consulting original, as well as secondary, case documents. Second, I have tried, where feasible,47 to describe the main evidence supporting, as well as opposing, the prisoner’s guilt. Finally, I have cited the principal sources upon which my knowledge is based. I hope that these precautions will assist interested readers to reach their own, independent conclusions.

B. Evidence of Official “Determinations” or “Beliefs” in Actual Innocence

Professor Gross’ criterion of “undisputed” innocence is satisfied only if a competent official “determines” or “expresses the belief” that the accused is factually innocent.48 Externally, this test appears to avoid the subjectivity inherent in Bedau and Radelet’s broad “neutral observer” standard. Frequently, however, even in cases whose circumstances strongly imply such a determination or belief, we lack direct evidence of it.49 Thus, in only five of the Table A cases did I find explicit evidence of the relevant authority’s belief in the convicted person’s innocence.50 In the other ten Table A cases, the relevant authority’s51 “determination” of factual innocence was only implicit. In those cases, I inferred that the relevant authority endorsed the accused’s factual innocence from such official conduct as (1) initiating or supporting the convict’s motion for new trial or his pardon application; (2) making comments that imply, rather than state, a belief in innocence; (3) apologizing to the convict; (4) in a single perpetrator case, successfully prosecuting another person after dismissing charges against the convict; (5) after exculpatory DNA testing in a single perpetrator case, dismissing the charges against the convict without making statements that imply the absence of that belief. In another case,52 I inferred a belief in innocence on the part of the governor who pardoned the convict. He did so with the support of the former trial judge after an investigation reportedly corroborated another man’s confession to the crime.

One might criticize using judgment and inference to classify such cases as “official exonerations.” Undoubtedly, the objectivity of the “undisputed innocence” category would be better served by excluding cases in which we lacked direct evidence of an official finding of factual innocence. However, that would further narrow the scope of the “undisputed innocence” category. As a result, we would exclude still more exonerations of prisoners who, in the eyes of most if not all cautious observers, were factually innocent.

III. INNOCENT PERSONS WHO HAVE BEEN CONVICTED IN MASSACHUSETTS

This Part describes three categories of innocent persons who have been convicted in Massachusetts. In Table A, I list and describe cases in which convicted persons have been “officially exonerated.” In subsequent Sections, I list and describe Tables B and C cases.

A. Official Exonerations

In Table A, below, I list fifteen Massachusetts prisoners whose factual innocence I consider “undisputed” according to Professor Gross’ criteria. In five of these cases, I found direct, explicit evidence of a relevant official’s belief in the prisoner’s factual innocence. In the remaining ten cases, I inferred that belief from surrounding circumstances. Interestingly, only four of the six Massachusetts DNA “exonerations” were “undisputed.”⁵³

Table A

Officially Exonerated Persons Whose Factual Innocence Is “Undisputed”

Herbert T. Andrews, Suffolk County⁵⁹

After coming to the attention of police because he overdrew his bank account, Andrews was charged with forging and uttering over forty checks. He had no criminal record. Seventeen witnesses identified him at trial as the man who had passed fraudulent checks to them. On February 26, 1914, he was convicted of seventeen counts of uttering bad checks and sentenced to fourteen months in jail. Fortunately for Andrews, while he was imprisoned awaiting trial, bad checks, similar to those for which he had been convicted, continued to be passed in the Boston area. Police found the perpetrator, Earle Barnes, who confessed to forging and passing many of the checks for which Andrews had been convicted. When police informed the prosecutor of this, he agreed to a new trial motion and nol prossed the indictment. According to the trial prosecutor, writing afterwards about the case, Andrews and the actual perpetrator “were as dissimilar in appearance as could be. There was several inches difference in height and there wasn’t a similarity about them. To this day I can’t understand the positiveness of those [identification] witnesses.”⁶⁰ Photographs of the two men’s faces, published in the newspaper, confirm this dissimilarity.⁶¹ Andrews spent about four months in jail before he was freed.

John H. Chance, Suffolk County⁶²

In April 1898, a Boston drug store was robbed and the clerk killed. Chance was identified as the owner of a coat found near the scene that resembled the coat reportedly worn by the perpetrator. Chance and a co-defendant, Arthur Hagan, were tried for murder. Chance testified on his own behalf but was impeached by prior inconsistent statements. A jury convicted Chance and acquitted Hagan. Chance received a life sentence, which he unsuccessfully appealed. In 1905, Chance notified the Governor that Hagan, then living in Chicago, had confessed to committing the crime by himself. It took nearly six years for the authorities to investigate this claim. In return for immunity from re-prosecution, Hagan affirmed that he alone was involved in the robbery-murder and that Chance was innocent. Further investigation corroborated the truth of Hagan’s confession. Statements were submitted in support of Chance’s innocence by both Hagan’s lawyer and the trial judge. On June 7, 1911, the Governor pardoned Chance after he had served nearly twelve years in prison. A bill awarding compensation to Chance failed to pass in the legislature.

As Professor Borchard has written: “Chance’s case arouses no special sympathy. He contributed to his misfortune by telling crucial falsehoods in court. It seems that he was much under the influence of Hagan and tried to shield him, believing that he himself was in no danger of conviction.”⁶³

John Chesterman, alias John Christman, Worcester County⁶⁴

In the fall of 1885, in the Worcester area, Charles Vokes called the police, claiming to have caught his former employee, John Chesterman, stealing from his house. When police responded, Chesterman was gone, but Vokes showed them his (Vokes’) personal property strewn about the floor. Police later caught Chesterman and charged him with larceny. Primarily on the basis of Vokes’ testimony, the jury convicted Chesterman. The judge sentenced him to a year in jail. A few weeks later, Vokes approached the authorities to confess that he had falsely accused Chesterman and committed perjury at the trial. In truth, Chesterman had come to Vokes’ house seeking payment of back wages. To avoid paying, Vokes ran him off and staged the “larceny.” On the basis of Vokes’ confession, the prosecutor obtained the Governor’s pardon for Chesterman. Chesterman was freed on February 12, 1886. Vokes was subsequently prosecuted for perjury.

Benjamin Collins, Middlesex County⁶⁵

Collins was arrested on September 1, 1928, for committing a series of handbag snatches in Somerville. When arrested, he had none of the stolen property either on his person or in his home. Furthermore, he was employed and had no criminal record. Although the investigating police officer doubted his guilt, five of the victims positively identified him as the culprit. Unable to make bail, he was held in jail from the day of his arrest until his trial on October 23. Based on the testimony of four eyewitnesses, Collins was convicted of robbery and larceny and sentenced to not more than three and a half years in prison. Fortunately for Collins, another bag snatching took place the following week in the same area where the other bags had been taken. This time, the perpetrator (George Hill) was captured in hot pursuit carrying some of the stolen items. Stolen items were found in Hill’s home that had been taken in the incidents for which Collins had been convicted. On October 30, 1928, Collins’ motion for a new trial was granted and the charges nol prossed. Subsequently, Hill, whose height, weight, facial features and clothing closely resembled Collins’, pleaded guilty to committing the crimes for which Collins had been convicted. A bill was introduced in the legislature to pay Collins $1,000 compensation, but it was defeated, “one argument being that the state could not be required to bear expenses which ought properly to fall upon the counties.”⁶⁶

Angel D. Hernandez, Hampden County⁶⁷

At 7:30 p.m on December 9, 1987, a female college student was attacked at knife point as she was entering her car in Chicopee. Over a twenty minute period, the attacker sexually violated the victim in her car. He then fled. At 8:15 p.m., allegedly, police encountered Hernandez. On the basis of his general resemblance to the description of the rapist, the police obtained Hernandez’s agreement to participate in a one-person show-up in front of a house where the victim had obtained refuge. Although Hernandez did not exactly match the victim’s first description of the rapist, she identified him at the show-up and later in court. At his trial for rape and other charges, the jury hung. Tried again, Hernandez was convicted in 1988 of rape and other crimes. He was sentenced to twelve to eighteen years in state prison.

The major prosecution evidence against Hernandez was the victim’s identification and the testimony of a forensic expert who had tested sperm and pubic hair left by the rapist. The expert testified that Hernandez’s blood group was the same as the rapist’s and that his pubic hair was “within the [same] range” as the rapist’s. Finally, at the time of his arrest, Hernandez was carrying several surgical scrubs of the sort that could have been used to wipe biological evidence from his hands and penis.

Maintaining his innocence, Hernandez sought unsuccessfully in 1992 to gain access to the physical evidence for DNA testing. A second try, in 1998, proved successful. Testing conducted in August 2001 excluded Hernandez as the donor of the sperm on the victim’s clothing. On August 15, 2001, after almost fourteen years incarceration, he was released. Hampden County District Attorney William Bennett apologized to Hernandez on behalf of the Commonwealth.

Following Hernandez’s release, evidence emerged that the state had failed to disclose exculpatory evidence in his case. Hernandez had claimed at trial that the police were detaining him elsewhere at the time of the rape. The defense had requested computer printouts of the stop but none were produced by the police or prosecutor by the conclusion of the trial. In March 2002, however, the new District Attorney secured from the police a police computer printout which proved that Hernandez’s alibi was true.⁶⁸

Donnell Johnson, Suffolk County⁶⁹

Jermaine Goffigan celebrated his ninth birthday on Halloween night, 1994. As he was counting his trick-or-treat candy outside the Academy Homes housing project in Roxbury, two young men walked up carrying firearms. In the storm of bullets they fired at a rival gang member, Jermaine was killed. Based on photographic identifications and a subsequent lineup, sixteen year-old Donnell Johnson was charged with delinquency by reason of first-degree murder. Convicted first at a juvenile court bench trial and then at a jury trial de novo, he was sentenced to eighteen to twenty years in prison.

The prosecution’s case rested on identification testimony by several eyewitnesses whose view of the hooded attackers was hampered by darkness and poor artificial lighting.⁷⁰ In a motion for a new trial, Johnson cited several instances of police and prosecutorial misconduct at trial.⁷¹ Chief among these was the suppression of a police report corroborating the defense claim that gang members from the Bromley-Heath housing project, in retaliation for the shooting of Kamaya Santos that occurred there earlier that night, did the shooting. The Supreme Judicial Court held that no prejudice ensued from the misconduct. Citing the “compelling” eyewitness testimony against Johnson,⁷² the court unanimously affirmed the convictions on appeal.

In 1999, a federal drug investigation led to charges against a number of Bromley-Heath gang members who offered to identify the “real” killer of Jermaine Goffigan. This led Suffolk County prosecutors to reopen Johnson’s case. In November 1999, pursuant to a prosecution request,⁷³ a juvenile court ordered Johnson’s release from prison pending further investigation. On March 28, 2000, the court granted the prosecution’s motion for a new trial. Prosecutors filed a nolle prosequi, indicating that newly-discovered evidence cleared Johnson.

In May 2001, Suffolk County prosecutors charged Michael Brown and Bennie Santos (the brother of Kamaya Santos) with Goffigan’s murder. Both were members of a Bromley-Heath gang. Prosecutors said that Brown bore a striking physical resemblance to Johnson seven years prior. Some members of the victim’s family, meanwhile, remained convinced of Johnson’s guilt. In April 2002, Johnson brought a federal civil rights suit against the City of Boston and Boston police, alleging police perjury and suppression of exculpatory evidence in his case.⁷⁴ Two months later, the Boston Police Department suspended the lead detective in the case for thirty days because of his misconduct in the case.⁷⁵

John McManus, Suffolk County⁷⁶

On the night of February 8, 1911, Boston police officer Joseph Balk observed a man, John Shorey, chasing and shooting at another man. Officer Balk pursued them and found Shorey standing over McManus, holding a gun in one hand and a gold watch and chain in the other. Shorey claimed that McManus had stolen his watch. McManus told a different story. He had been out looking for work shoveling snow when he encountered Shorey, who was upset after trying unsuccessfully to enter the apartment of a woman Shorey argued with earlier in the evening. Giving vent to his anger, Shorey attacked McManus. McManus turned and ran, with Shorey following and shooting. When Officer Balk came on the scene, Shorey made up the story about the watch.

Shorey was a deputy sheriff from Conway, New Hampshire; McManus was an unemployed immigrant laborer. Officer Balk believed Shorey and so did a jury. On the basis of Shorey’s testimony, McManus was convicted of robbery and sentenced to three years in the House of Correction.

Fortunately for McManus, Shorey returned to Boston, got drunk, and was arrested for trying to force liquor on a newsboy and for carrying a pistol. Officer Balk happened to hear of the arrest and brought his suspicions to the District Attorney’s office. The District Attorney assigned an investigator to the case, who concluded that McManus was innocent. On the District Attorney’s recommendation, McManus was pardoned on February 28, 1912.

Neil J. Miller, Suffolk County⁷⁷

On August 24, 1989, a black man forced his way into a white college student’s apartment, where he robbed and raped her. During the hour-long attack, the victim had ample opportunity, in bright light, to observe the assailant’s face and build. The victim later helped the police make a composite sketch of the rapist. Miller came to the attention of police because he resembled the composite drawing and the victim’s description of the rapist. After she identified his photograph,⁷⁸ he was arrested. In 1990, Miller was convicted of rape, robbery, and breaking and entering and was sentenced to prison for ten to twenty-five years. In 1997, he was denied parole “because he proclaimed his innocence and refused to enter treatment for sexual deviance.”⁷⁹

The physical evidence at trial included a semen stain on the victim’s bed sheet and a rape kit. The Commonwealth’s forensic expert testified that, on the basis of blood-group testing, Miller was excluded as the source of the bed sheet stain but could not be excluded as a contributor to the rape kit material. In May 2000, DNA tests excluded Miller as the source of all of the biological evidence. The court granted Miller’s motion for a new trial. The prosecution filed a nolle prosequi, stating that the new DNA evidence excluded Miller and that “further prosecution is not in the interests of justice.”⁸⁰

A private bill to compensate Neil Miller is pending in the Massachusetts legislature.⁸¹

Marvin Mitchell, Suffolk County⁸²

On September 22, 1988, an eleven year-old Roxbury girl was raped on her way to school. She gave her mother a detailed description of the rapist, including the facts that he wore “pinkish” pants and had a mole or birthmark on his penis. The next day, the victim’s mother drove around the neighborhood, saw Mitchell, and, based on her daughter’s description, reported her belief that he was the rapist to police.⁸³ Mitchell was arrested and charged with rape of a minor. In January 1990, a jury convicted him. He was sentenced to nine to twenty-five years in state prison.⁸⁴

The prosecution evidence consisted of the victim’s identification of Mitchell, whom she claimed to recognize from her neighborhood, evidence that Mitchell had a mole or freckle on his penis that resembled a mark that the victim had seen on the perpetrator’s penis, expert testimony that analysis of blood mixed with semen found on the victim’s sweatshirt did not definitively rule Mitchell out as a suspect, and police testimony that Mitchell had spontaneously confessed to wearing pink pants on the day of the rape.

On April 23, 1997, Mitchell won a new trial after DNA testing excluded him as the source of the blood and semen stains from the victim’s sweatshirt. The District Attorney filed a nolle prosequi. Mitchell thus became the first Massachusetts prisoner to win release on the basis of new DNA evidence.

Mitchell subsequently sued the Boston Police Department and the City of Boston, seeking damages for an alleged conspiracy to convict him with fabricated evidence and perjured testimony. The City settled the suit for $450,000.⁸⁵

Arthur O’Connell, Suffolk County⁸⁶

In May 1935, twenty-six year-old Arthur O’Connell was tried in Boston for a sexual attack on a thirteen year-old girl. Convicted on the testimony of the alleged victim and that of her thirteen year-old companion who testified that she had witnessed the crime, O’Connell was sentenced to a term of not less than eight and not more than twelve years. In June of the same year, the “victim’s” companion confessed that the crime had never occurred. O’Connell had merely stopped to talk to the girls for a moment. They had perjured themselves “just for fun.” After a month’s imprisonment, O’Connell was released.

Marlon Passley, Suffolk County⁸⁷

On the night of August 11, 1995, a motorcycle approached a group of six young men on a Dorchester street. The helmeted passenger, wearing a green mesh shirt, drew a gun and fired at the youths. At one point, he dismounted and, standing over them, shot three of the victims. The shots killed one, Tennyson Drakes, and seriously wounded the other two. Three of the young men identified the shooter to police as Passley, with whom one of their friends had fought two weeks before. They also claimed he had threatened them since. Four of the victims identified Passley’s photograph. After Passley’s arrest, police found a green mesh shirt in his apartment. At Passley’s trial for first-degree murder and related offenses, the prosecution relied mainly on identification testimony by the four victim-witnesses.⁸⁸ The defense presented the testimony of nine alibi witnesses and of the defendant to show that Passley was at a family graduation at Wellesley College at the time of the shooting. Passley was convicted as charged and sentenced to life imprisonment without possibility of parole.

In February 1999, the Supreme Judicial Court affirmed Passley’s convictions and sentence. The following month, however, prosecutors obtained a court order temporarily staying his sentence on the ground that new evidence established that a different person had been the shooter. On September 13, 2000, prosecutors persuaded a court to vacate Passley’s conviction. Suffolk County Assistant District Attorney David Meier told the court: “I can state unequivocally, based on new evidence and credible facts, that Mr. Passley did not commit the crimes for which he was convicted.”⁸⁹

In May 2001, a grand jury indicted John Tibbs for the murder of Tennyson Drakes.

Santos Rodriquez (“Rodriguez”), Hampden County⁹⁰

Sometime on the evening of January 25, 1954, Mildred Hosmer was smothered to death in her Springfield home. She was found in bed, partially disrobed. Acting on knowledge that the victim had been drinking in the Franklin Grille earlier that night, police picked up Santos Rodriquez, who had also been there, for questioning. Rodriquez was a twenty-five year-old PuertoRican busboy who knew little English. According to police, he confessed to the murder under questioning and reenacted the crime when taken to the victim’s room. Afterwards, with the assistance of an interpreter, Rodriquez wrote and signed a confession in Spanish. These confessions were the main evidence against him at his trial for capital murder. The jury convicted Rodriquez of second-degree murder, and in December 1954, he was sentenced to life imprisonment.

Testifying through an interpreter at trial, Rodriquez admitted having been in the Franklin Grille on the night of the murder but denied ever speaking to the victim or going to her room. He said that the police forced him to write his confession and that “he wrote what they told him.”⁹¹ Although rejected by the jury, Rodriquez’s story gained credence in January 1956 when, driven by conscience, Lucien Peets confessed to Hosmer’s murder. Peets was then in custody on other charges. After an investigation, Peets was indicted for manslaughter, pleaded guilty, and was sentenced to prison. The District Attorney supported Rodriquez’s application for gubernatorial pardon, which he received in April 1957.⁹² In 1958, the legislature awarded Rodriquez, who had spent thirty-nine months in prison, $12,500 compensation.

Eric Sarsfield, Middlesex County⁹³

On the afternoon of August 24, 1986, in Marlboro, a stranger approached a woman sweeping her patio. He forced her into her home and raped her. During the hour-long attack, the victim had ample opportunity to view the rapist. She later testified that she looked at the rapist’s face during the entire attack and swore to herself that she would remember it.⁹⁴ Four months later, under suggestive conditions,⁹⁵ the victim identified Sarsfield as the rapist. Sarsfield, who had no criminal record, lived in the same area as the victim. In July 1987 a jury convicted him of rape. Sarsfield was sentenced to ten to fifteen years in state prison. Because he refused to admit his guilt, Sarsfield was refused parole several times before he was released in 1999.

Although a hospital rape kit and other physical evidence existed at the time of trial, no forensic analysis of this evidence was presented to the jury. The state rested its case entirely on eyewitness identifications by the victim and by Sarsfield’s ex-wife, who identified a blurry videotaped image of the perpetrator in a nearby convenience store shortly before the attack as Sarsfield. Prosecutors also were allowed to impeach the defendant’s testimony with an inculpatory statement that he allegedly made to a police officer in September 1986. The officer did not submit his report of this statement to the prosecutor until the week before trial, ten months after the statement was allegedly made.⁹⁶

Helped by dedicated pro bono defense counsel, Sarsfield sought post-conviction DNA testing of the physical evidence. In October 1999,⁹⁷ DNA testing of the rape kit and the victim’s clothing excluded Sarsfield as the source of sperm and other biological material. On August 3, 2000, the court granted Sarsfield’s motion for a new trial. The Commonwealth filed a nolle prosequi stating that the evidence exonerated Sarsfield. After spending nine years in prison, Sarsfield was freed.

Cornelius Usher, Essex County⁹⁸

In March 1902, Cornelius Usher was found pawning tools that had been taken during a burglary from the Leonard Shoe Company factory in Lynn. He claimed that while drinking he had met a man named Hart and then one “Jack” Coughlin. Coughlin asked him to pawn the tools. According to Usher, he did so without knowing that they were stolen. Disbelieved, Usher was charged with breaking and entering and theft. He was convicted and sentenced to three to five years in state prison.

Police did look for the “Jack” Coughlin described by Usher. Two years later, on April 16, 1904, John H. Coughlin, of Salem, was arrested for his involvement in the Leonard Shoe factory burglary. Publicity about the arrest induced the missing “Hart” to approach the police and verify that he had witnessed Coughlin hand the tools to Usher and tell him to pawn them. Coughlin subsequently pleaded guilty to breaking and entering into the Leonard Shoe Company and stealing the tools. He expressed regret that Usher had been punished for his crime. The District Attorney subsequently approved Usher’s pardon application, which was granted on May 25, 1904. The following March, the Massachusetts legislature passed “a bill to indemnify Usher in the amount of $1,000 ‘as full compensation for his confinement for a period of 1 year, 11 months, and 26 days ... for a crime of which he was innocent.”’⁹⁹

Joseph Ward, alias Joseph Winston, Suffolk County¹⁰⁰

On February 19, 1895, a man who gave the name of James Mahoney was arrested in flagrante snatching the purse of a shopper at Jordan Marsh’s store on Washington Street, Boston. His accomplice, however, got away. Based on eyewitness descriptions of the latter, police arrested Joseph Ward, alias Winston. Identified as the accomplice by the eyewitnesses, Ward was indicted to stand trial with Mahoney. However, Mahoney jumped bail, and Ward stood trial alone. Although Ward told his attorney that he was in another state on February 19, he was afraid to testify because of his criminal record. Ward was convicted on the testimony of several eyewitnesses. On April 18, 1895, the judge sentenced him to five years in state prison.

In July, Mahoney was rearrested. Ward’s attorney, who believed in his client’s innocence, told Mahoney of Ward’s conviction as his accomplice. Mahoney said that Ward had not been his accomplice, but rather one Dooley, from New York. Police Inspector Knox, one of the eyewitnesses who identified Ward, investigated this claim and discovered that Dooley and Ward resembled each other. Convinced that Ward was innocent, Inspector Knox informed the prosecutor. Both the Inspector and the District Attorney wrote letters in support of Ward’s pardon application. On January 30, 1906, after eight months of incarceration, Ward was pardoned on the ground of mistaken identity.

B. Persons Who Were Not Officially Exonerated But Whose Convictions Were Vacated Under Circumstances Raising Strong Doubts About Their Factual Guilt

In this Section, I describe twelve cases in which, as is true of the cases shown in Table A, the defendant’s conviction was overturned. Although these defendants were not officially exonerated, their convictions were vacated under circumstances which, in my view, raise strong doubts about their factual guilt. I have omitted from this Section three cases¹⁰¹ that other scholars have described as wrongful convictions but which do not meet my criteria for “innocence.”

Table B

Not “Officially Exonerated” But Convictions Vacated Under Circumstances Raising Strong Doubts About Factual Guilt

Gangi Cero, Suffolk County¹⁰⁶

Shortly after he left a Boston barbershop on a June afternoon in 1927, Joseph Fantasia was shot in the back and killed. The shooter dropped the gun on the ground and fled. A witness, who claimed to have seen the shooter run from the scene and enter a shop, called the police. Inside the shop, police arrested Gangi Cero, an Italian seaman. Cero was tried for first-degree murder, convicted, and sentenced to death. Although two new eyewitnesses came forward to swear that Cero was not the man they saw drop the gun and flee, his motion for new trial was denied.

Two hours before Cero’s scheduled execution, he sent for the trial prosecutor and several others. Although at his trial Cero had denied firing the shot or running away, he now admitted that he had fled after seeing his employer, Samuel Gallo, shoot Fantasia. According to Cero, Gallo had brought Cero to the crime scene on a pretext and suddenly shot Fantasia without Cero’s prior knowledge or assistance. Cero’s claims were supported by another new eyewitness to the killing, Philomena Romano, who met with and helped persuade the Governor to grant Cero a reprieve. Several other facts pointed to Gallo’s guilt. Gallo had a motive to kill Fantasia, and Cero did not. After Cero’s arrest, Gallo had hired a lawyer to represent Cero and had given Cero money. Gallo had also attempted to bribe the Commonwealth’s principal witness by offering him $2,500 to recant his trial testimony. For this obstruction of justice, Gallo had been prosecuted and sentenced to jail. The witness later testified that Gallo, “in urging him to change his testimony ... said to him, ‘[i]f I were to tell you that I did it would that change your testimony?”’¹⁰⁷ According to Cero, he originally protected Gallo because the latter had assured him that Cero would be exonerated and that, if not, Gallo “would go to the District Attorney and assume full responsibility for the murder of Fantasia.”¹⁰⁸

In March 1929, Gallo was tried as the sole killer of Fantasia and convicted of murder. Because that verdict was inconsistent with the prior conviction of Cero for the identical crime, both verdicts were set aside and a third trial held, in which Cero and Gallo were tried as accomplices in the murder. While the Commonwealth presented evidence to show that both Cero and Gallo had guns and acted jointly, the jury convicted Gallo¹⁰⁹ and acquitted Cero.

Comment: Although Gallo appears to have been Fantasia’s actual killer,¹¹⁰ Cero might or might not have acted as his accomplice. At the least, his decision to perjure himself at his first trial in order to protect Gallo helped bring about his own close brush with the electric chair. While Cero’s ultimate acquittal does not by itself establish his factual innocence, the facts do seem to raise strong doubts about his guilt.

Rodriguez Charles, Suffolk County¹¹¹

On the evening of December 8, 1980, a black man forced his way into a Brighton apartment shared by three young white women. There, he terrorized, robbed, and raped them all. Two of the victims later picked Charles’ photo from a mug book. They also said that the perpetrator had a distinctive accent - Charles is from Trinidad, West Indies. Charles was absent from his arraignment and was not rearrested until 1983, nearly three years after the incident. A lineup was then held, where only two of the three victims identified Charles. Only one picked him out in the trial courtroom. The Commonwealth’s case rested only on victim identification testimony without any corroborating confession or physical evidence. Although both the robe worn by one of the victims and a bed sheet bore biological stains, prosecution experts testified that no sperm was present. Blood tests excluded Charles as the donor. However, since the government claimed that no sperm was present, Charles was not excluded as the rapist. At trial, the prosecution argued that the stains had existed before the attack and that the assailant had not ejaculated. Charles was convicted and sentenced to four consecutive terms of eighteen to twenty years in prison.

Defense counsel had stipulated at trial that the hospital records showed that no sperm was found on the victims’ vaginal swabs. After conviction, however, new defense attorneys discovered the victims’ hospital records, which showed that sperm had been found on the vaginal swabs from two victims.¹¹² Many years later, in the prosecution files, a defense attorney found interview notes, never disclosed to the defense, stating that the third victim believed that the assailant might have been circumcised. Charles is not circumcised. With the District Attorney’s cooperation, DNA testing was performed on the robe and bed sheet, which, in 1999, revealed sperm from two different men, neither of whom was Charles. On May 11, 2001, a judge granted Charles’ motion for a new trial on the ground that the new DNA evidence, and the previously suppressed victim statement that the attacker was circumcised, would likely have affected the jury’s verdict. Therefore, “justice may not have been done in this case.”¹¹³ The prosecution, which had vigorously opposed the new trial motion, announced its decision not to try Charles again. It cited as reasons the twenty-one years that had passed since the crime, lost evidence, and the death of the original investigators.¹¹⁴ However, the prosecution insisted that “[t]he absence of Charles’ DNA [at the crime scene] does not mean that he was not the rapist, as the facts presented at trial are otherwise convincing of his guilt.”¹¹⁵

Comment: This case illustrates how hard it can be to “know” or “prove” someone’s factual guilt or innocence. Despite the DNA exclusion, Charles might have committed the rapes; perhaps, as the Commonwealth contended, the sperm stains on the robe and bed sheet were old and were contributed by the victims’ previous, voluntary partners. Perhaps, as well, the victim mistakenly recalled that the rapist might have been circumcised. On the other hand, the government’s case was built on vulnerable cross-racial witness identifications, and it lost potentially definitive scientific evidence - the sperm-bearing vaginal swabs. As a whole, the evidence raises strong doubts about Charles’ factual guilt.

Ella Mae Ellison, Suffolk County¹¹⁶

On November 30, 1973, three young black men, Nathaniel Williams, Anthony Irving, and Terrell Walker, robbed a pawn shop in Roxbury. During the robbery, Walker fatally shot Boston Police Officer John Schroeder. Williams and Irving fled Boston. They were caught the next day, holding jewelry taken from the pawn shop. Under questioning, they made a number of incriminating statements to the police. Although they initially reported driving a stolen car to and from the robbery scene, one of them subsequently said they were driven by an unnamed, light-skinned black girl about eighteen years-old. Williams and Irving were offered the chance to plead guilty to second-degree murder in return for their cooperation, but only if they identified the getaway driver. Ultimately, they said that Ella Mae Ellison had driven the three robbers to and from the pawn shop in her own car and accompanied them to one Freeman’s apartment where they divided the loot. Ellison, a single mother of four children with no criminal record, was dark-skinned. At twenty-seven, she was also significantly older than the three drug-addicted robbers. At her trial in 1974 for armed robbery and first-degree murder, she testified that in the past she had given Williams and Irving rides in her car but that she had no connection with the robbery. She was supported by Freeman and another witness from Freeman’s apartment who testified that Ellison had not come there with the three robbers. However, based almost entirely¹¹⁷ on Williams’ and Irving’s testimony, the jury convicted Ellison as charged.¹¹⁸ She received concurrent life sentences.

At a hearing in 1976 on Ellison’s motion for a new trial, she presented new evidence on two issues. First, despite repeated defense requests for exculpatory evidence, the prosecution had suppressed several early statements by Williams and Irving that supported the claim that Ellison was not involved in the crime. Second, Williams and Irving recanted their trial testimony incriminating Ellison and reaffirmed their original admissions that they drove themselves to the crime scene in a stolen car. Although the trial court denied Ellison relief, the Supreme Judicial Court vacated her conviction in 1978. Noting that “the Commonwealth’s case at trial was a dubious one,”¹¹⁹ the court held unconstitutional “[t]he prosecutor’s late, piecemeal, and incomplete disclosures” of earlier, exculpatory statements by Williams and Irving.¹²⁰ Regarding the recanted testimony, the court pointed out that Williams and Irving, who had given several conflicting versions of the crime, “emerge as very willing to lie under oath.”¹²¹ The court speculated that their motives for falsely inculpating Ellison might have been to obtain the benefits of the offered plea bargain or, alternatively, to protect the identity of the real getaway driver.

Following the court’s reversal of Ellison’s conviction, the District Attorney dropped charges against her.¹²²

Comment: Although neither the prosecutor’s action nor the Supreme Judicial Court’s decision can be said to manifest official exoneration of Ellison, her conviction was reversed in circumstances raising strong doubts about her factual guilt.

Frank Grace, Bristol County¹²³

In the early 1970s, Frank Grace was a Black Panther leader in New Bedford. Under surveillance by the FBI, he had been arrested numerous times by the local police but never convicted. On the night of August 8, 1972, outside a New Bedford night club, two men with guns attacked Marvin Morgan, a nineteen year-old drug addict. One of the men fatally shot the victim. According to two eyewitnesses, Jasper Lassiter and Eric Baker, the culprits were Frank Grace and his brother Ross. At trial in 1974, both witnesses identified Frank as the shooter. Although Frank, supported by seven witnesses, testified to an alibi, the jury convicted him of first-degree murder. He was sentenced to life imprisonment. His brother, Ross, was convicted of second-degree murder of the same victim.

Ten years later, in the summer of 1984, hearings were held on Frank Grace’s motion for a new trial. He presented four eyewitnesses who testified that he neither shot Morgan nor was present at the scene of the crime. Two of the witnesses had testified against Grace at trial and now recanted. Lassiter testified that he had never seen Frank before the trial, but was urged and coached by the police to identify him as the shooter. In truth, he swore, Ross Grace had shot the victim. At the same hearing, Ross Grace recanted his alibi testimony and admitted that he, not Frank, had shot the victim. He insisted that Frank had not been present. Also, two newly discovered eyewitnesses testified that Frank had not been present at the crime. Finally, two lawyers swore that Ross Grace had told them that he had shot the victim and that Frank had not been there. Based on this new evidence, the Superior Court ordered a new trial for Frank, who was released on bail in January 1985. Successfully appealing the new trial order, prosecutors were able to send the case back to the Superior Court for a rehearing. However, this resulted in another, uncontested order for new trial. Prosecutors decided not to re-prosecute Grace, citing as reasons both the Superior Court’s findings and the unavailability of necessary witnesses.

Comment: Frank Grace maintained that the police had framed him because he was a political radical. Regardless of whether that is true, Frank’s failure to point the finger at his brother Ross, assuming that he had the ability to do so, might have contributed to his own conviction. Still, the evidence as a whole raises strong doubts about Frank’s factual guilt.

Christopher Harding, Suffolk County¹²⁴

On August 18, 1989, two men shot and wounded Deron Jones in the Mission Hill housing project in Boston and then fired on pursuing police officers. One of the men, a reputed drug lord named Dwayne Owens, surrendered to police at the scene.¹²⁵ Police Officer Terence O’Neil claimed that he saw Harding shoot twice at Jones and once at him, throw down a gun, and flee into an adjacent building. Harding was found there sitting on a staircase. Officers O’Neil and Stratton identified Harding as the second shooter, as did the victim’s companion, Glenn Hill, after he was showed Harding lying in the rear seat of a police cruiser.

Harding, who lived in the building where he was arrested, testified at trial that he was asleep when Officer O’Neil woke him up and arrested him. An alcoholic, he frequently slept on that staircase when he was too drunk to go home. Harding’s claim was supported by a witness who testified that she had seen Dwayne Owens shortly before the crime with a second man who was not Harding. But on May 25, 1990, Harding was convicted of two counts of assault with intent to murder and other offenses. He was sentenced to ten to twelve years in state prison. His conviction was not supported by any physical evidence or motive but rested mainly upon the identification testimony of the two police officers and Hill. According to Officer O’Neil, when he found Harding on the staircase, Harding was sweating and his heart was racing. Officer O’Neil also testified that Harding made an incriminating statement to him.

In October, 1995, after serving six years in prison, Harding was released.¹²⁶ Meanwhile, a federal grand jury was investigating Dwayne Owens’ gang activities. In grand jury testimony, Glenn Hill recanted his identification of Harding as the second shooter of Deron Jones. Cooperating gang members testified that Dwayne Owens had admitted that his cousin, Robert Owens, was the second shooter. One witness swore that he had seen the two cousins together shortly before the crime. Harding was ten years older than Dwayne Owens and had no known association with Owens’ gang. Based on this testimony, the presiding judge at Owens’ federal criminal trial urged state authorities to reexamine Harding’s conviction.¹²⁷ Citing the newly discovered evidence, Harding filed a motion for a new trial in 1997.

On December 22, 1997, Superior Court Judge Volterra granted Harding’s motion without first hearing witnesses, citing “the compelling nature and righteousness” of Harding’s claims. He listed a number of reasons for having “serious questions about the veracity” of the police testimony at Harding’s trial. Ballistic evidence contradicted Officer O’Neil’s testimony as to the number of shots he heard. Also, Officer O’Neil had disobeyed a court order by speaking with another police witness at the trial, after which the second officer allegedly changed his testimony. Police had obstructed defense efforts to subpoena as a witness Police Officer Justina Mitchell, who was Officer O’Neil’s partner on the night of the incident and whose incident report was inconsistent with the testimony of her brother officers. Boston Police Department supervisors had improperly ordered Officer Mitchell not to honor a valid defense subpoena for her testimony. They then falsely informed the prosecutor and the trial judge that Officer Mitchell was away in Florida, when in fact she was at a police station in Roxbury. Judge Volterra called this episode a “fraud upon the court.” He also pointed to affidavits of several newly discovered witnesses in support of Harding’s alibi and found Harding’s trial lawyer ineffective for failing to seek them out.¹²⁸ Finally, the judge noted that the police had lost the hat and jacket worn by Harding on the night of his arrest, which the defense claimed were different from those worn by the perpetrator.

In January 1998, prosecutors announced their decision not to retry Harding. As reason, they stated only that retrial would not serve the interests of justice.¹²⁹ Harding subsequently sued the police for causing his wrongful conviction by perjured testimony. In January 2000, the City of Boston settled the suit for $480,000.¹³⁰ The following month, the police department fired Officer O’Neil “for lying under oath and other breaches of department rules during the [Harding] case.”¹³¹

Comment: The Harding case illustrates why students of “miscarriages of justice” should cast their nets beyond the narrow category of “official” or “undisputed” exonerations. The facts seem to compel the conclusion that police arrested, charged, and convicted the wrong man. Yet, the state’s executive branch authorities have not acknowledged Harding’s innocence. Under the circumstances, this failure is hard to understand except as an act of self-protection.

Lawyer Johnson, Suffolk County¹³²

On December 7, 1971, James Christian, a white man seeking to buy drugs, was shot to death as he left a building on Prentiss Street in Roxbury. Kenny Myers, a drug addict found by police at the murder scene, told police that he saw Lawyer Johnson, age twenty, and another black man attempting to rob Christian. When the latter pulled a gun, Johnson reportedly shot him in the face and fled with the second man. Myers then took and hid the victim’s gun, to which he later led the police.

On June 1, 1972, Johnson was convicted by an all-white jury of first-degree murder and was sentenced to death. On appeal, the Supreme Judicial Court reversed the conviction because the trial judge had improperly restricted Johnson’s right to cross-examine Myers.¹³³ Retried, Johnson was convicted again by an all-white jury on November 16, 1974, this time only of second-degree murder. His conviction and sentence to life imprisonment were affirmed on appeal.¹³⁴

The prosecution case against Johnson rested primarily¹³⁵ on the testimony of Myers and of Alvin Franklin, who had shared a cell with Johnson before the first trial. Franklin testified that Johnson confessed committing the murder to him. As noted by the appellate courts, the trustworthiness of both prosecution witnesses was “certainly questionable. Myers, with a criminal record, and himself not clear of suspicion of the homicide, was a difficult and reluctant witness”¹³⁶ who told “conflicting, shifting stories,”¹³⁷ and who “conceded that he identified Johnson as being present at the murder scene only after the police had indicated that they could ‘get’ Myers himself for the murder.”¹³⁸ Furthermore, both Myers and Franklin “were under pressure of their forthcoming trials on criminal charges at which they could hope that any past cooperation might earn them favor from the prosecutor.”¹³⁹ These weaknesses in the Commonwealth’s case were compounded by the emergence of two new eyewitnesses in Johnson’s favor. The first, Garry Pritchett, was a youth worker who was present at the scene and whose value as a witness was obscured by the prosecution’s initial suppression of a key statement by Myers.¹⁴⁰ At Johnson’s second trial, Pritchett testified to seeing Myers and two other black men run from the murder scene; neither of the other two men was Johnson. Although Pritchett’s testimony did not move the second trial jury to acquit Johnson, a court was persuaded on July 6, 1981, to grant Johnson a new trial based on the testimony of a second new eyewitness, Dawnielle Montiero. As a neighborhood ten year-old, Montiero had known both Myers and Johnson. In motion hearing testimony, corroborated by her mother, she swore that Johnson “was not present at the scene and that Myers ... himself had fired three shots at the victim.”¹⁴¹ She attributed her failure to come forward earlier to her fear of Myers.¹⁴²

The prosecution appealed the order granting Johnson a new trial. While acknowledging that reasons existed to doubt both Pritchett’s and Montiero’s testimony,¹⁴³ the Court of Appeals affirmed the new trial order.¹⁴⁴ The prosecution declined to retry Johnson. Calling his release a “travesty of justice,” the trial prosecutor said that he was forced to drop the charges because Myers refused to testify again.¹⁴⁵

After ten years in prison, including two years on death row, Johnson was freed on October 19, 1982.¹⁴⁶ In 1983, both houses of the Massachusetts legislature voted to compensate him in the amount of $75,000. However, the legislature failed to give the bill final approval. Another compensation bill was filed on Johnson’s behalf in 1999, but it too failed to pass.¹⁴⁷

Comment: Unsupported by any physical evidence, Johnson’s conviction for capital murder rested on testimony from two blatantly untrustworthy witnesses. Myers was a prime suspect in the murder. He was present at the scene, possessed the victim’s gun, and lied to the police, the grand jury, and the courts. Franklin had the tainted credibility of a jailhouse snitch. While the truth might never be known, the case raises strong doubts about Johnson’s factual guilt.

Bobby Joe Leaster, Suffolk County¹⁴⁸

On Sunday afternoon, September 27, 1970, two black¹⁴⁹ men robbed a variety store on Talbot Avenue in Dorchester. One of them shot and killed the owner, Levi Whiteside, in the presence of his wife, Kathleen, and a customer, Nellie Rivera. The shooter wore a black beret, a black shirt, and green pants. Kathleen told police that both men had been in her store earlier that day, acting suspiciously. Ninety minutes later, police arrested Bobby Joe Leaster, whose physical description and dress resembled the shooter’s, on a street in the South End. Brought to Boston City Hospital, Leaster was sitting handcuffed in the rear of a patrol wagon as Kathleen emerged from the hospital. Led by a police officer, she approached the vehicle and identified Leaster as the killer. A short while later she confirmed the identification in the police station where, surrounded by police officers, Leaster was the only black man in the room. Under equally suggestive circumstances, Rivera also identified Leaster. Leaster was convicted of first-degree murder on June 22, 1971, and was sentenced to life imprisonment. The jury recommended that the death penalty not be imposed.¹⁵⁰

The prosecution case against Leaster rested entirely on eyewitness identification testimony. Although the trial court suppressed both eyewitnesses’ stationhouse identifications, it admitted Kathleen’s hospital identification and in-court identifications by both witnesses. The jury rejected testimony by Leaster and his girlfriend that they had been together in their South End home when the crime occurred. Leaster’s ability to mount a successful defense was weakened by the prosecution’s failure to disclose exculpatory evidence and weaknesses in the defense presentation.

On July 25, 1986, over the District Attorney’s opposition, the Advisory Board of Pardons voted unanimously to recommend commutation of Leaster’s sentence. Impressed by his good prison record, the Board took this action despite, rather than because of, Leaster’s continued claim of innocence. Before Governor Dukakis could act on the Board’s recommendation, a new eyewitness came forward. In response to a newspaper article on Leaster, showing Leaster’s photograph, the witness, a Boston teacher and constable, came forward to report that he had seen two men running from the victim’s store right after the killing. One was wearing a beret. Neither that man, whom he knew, nor the second man, was Leaster.¹⁵¹ Based on this new evidence, on November 3, 1986, Leaster won a new trial. In the meantime, the District Attorney’s office had reopened the case. Prosecutors learned that the Whiteside murder weapon had been used in another robbery sixteen days after the killing, while Leaster had been in custody.¹⁵² Another man, Kelsey Reid, had been seen buying a similar pistol ten days before the Whiteside killing and had reportedly bragged later about committing the murder for which Leaster was punished.¹⁵³ Requesting dismissal of the indictments against Leaster in December 1986, prosecutors told the court: “we can’t say that Leaster ... did [the 1970 crime], and we can’t say that he didn’t.”¹⁵⁴

The Massachusetts legislature, however, had no such difficulty. On November 12, 1992, the legislature appropriated money to fund a $500,000 annuity to benefit Leaster and his son. According to the statute, the annuity was intended to discharge the Commonwealth’s “moral obligation” to Leaster, “his conviction having been vacated on the basis of newly discovered evidence establishing his innocence ....”¹⁵⁵ In presenting the first payment to Leaster, the House Speaker apologized to him for his fifteen year incarceration.156

Comment: Like Harding’s case,¹⁵⁷ Leaster’s case illustrates the value of expanding the domain of “wrongful convictions” beyond those cases in which either a responsible executive or judicial authority has determined the prisoner’s factual innocence. The same new exculpatory evidence that left prosecutors agnostic as to Leaster’s guilt convinced the state legislature to declare his innocence, apologize, and award him compensation. No sufficient reason exists for effectively disregarding the legislative judgment.¹⁵⁸

Peter J. Limone, Suffolk County¹⁵⁹

One of the “Salvati Four,” Peter Limone spent thirty-three years in prison before his release in January 2001. His case is described below in this Section in the entry for Joseph Salvati. Mr. Limone has filed a suit for damages against federal and state authorities.¹⁶⁰

George Reissfelder, Suffolk County¹⁶¹

On October 14, 1966, two armed men committed a payroll robbery at Railway Express in Boston. One of the men, later identified as William Sullivan, fatally shot one of the guards. Three of the victim’s fellow employees later identified George Reissfelder as the second robber. When arrested, Reissfelder possessed a .22 caliber revolver, which one of the three identified as the gun brandished by the second robber. On July 21, 1967, a jury convicted both Sullivan and Reissfelder of first-degree murder. The jury rejected the prosecution’s request for death sentences, and each defendant was sentenced to life imprisonment.

The state’s case against Reissfelder rested on weak and suggestive eyewitness identification,¹⁶² but Reissfelder’s alibi defense was also weak. In 1972, Reissfelder’s co-defendant, Sullivan, dying in prison of leukemia, confessed to a priest that he had never met Reissfelder before the two stood trial. He asked the priest to apologize to Reissfelder. The priest subsequently came forward, and Reissfelder sought a new trial. At a hearing in June 1982, defense attorneys presented ten witnesses in support of Reissfelder’s claim of innocence, including five policemen, an FBI agent, a probation officer, and the priest. Several police officers testified to hearing from informants during the investigation that Reissfelder was not involved. A Boston detective testified that he had told a sergeant working on the case about informant claims that Sullivan and two other Charlestown men, not Reissfelder, committed the crime. The sergeant allegedly replied: “Don’t rock the boat, kid. We’re all set.”¹⁶³ A prison case-worker testified that in 1968 that Sullivan had revealed Reissfelder’s innocence to him.¹⁶⁴ Sullivan’s former defense lawyer also told prosecutors that he believed that Reissfelder was innocent. Finally, there was testimony that Reissfelder did not come into possession of the alleged robbery weapon until at least five hours after the crime. In July 1982, the court granted Reissfelder’s motion for new trial. The District Attorney announced that he would not try Reissfelder again and did not oppose Reissfelder’s motion to dismiss the charges. Reissfelder was freed on August 30, 1982, sixteen years after he was first imprisoned.¹⁶⁵

Following Reissfelder’s release, the legislature twice failed to pass a private bill to award him compensation.¹⁶⁶ He died in 1991 “of acute cocaine poisoning.”¹⁶⁷

Comment: Although Reissfelder’s factual innocence was never declared by an executive or judicial authority, the facts of his case raise strong doubts about his factual guilt.

Joseph Salvati and other members of the “Salvati Four,”¹⁶⁸ Suffolk County¹⁶⁹

On March 12, 1965, a group of men connected to organized crime planned and executed the fatal shooting of Edward Deegan. Deegan was murdered as he and Anthony Stathopoulos were about to break into a Chelsea finance company. Stathopoulos, also a target of the hit, escaped alive. Seven¹⁷⁰ men were prosecuted for crimes including capital murder and conspiracy to commit murder. Among those found guilty were the “Salvati Four:” Joseph Salvati, Peter Limone, Louis Greco (also known as “Grieco”), and Henry Tameleo. All four were convicted of first-degree murder. Salvati received a life sentence, and the other three were sentenced to death.

The state’s principal witness at trial was Joseph “The Animal” Barboza, also known as Joseph Baron. The FBI knew Barboza as a “professional assassin” with ties to the mob.¹⁷¹ In return for his cooperation, Barboza was allowed to plead guilty to two conspiracy charges, receive a sentence of probation, and enter the federal witness protection program.¹⁷² He testified that he accepted a Mob “contract” to carry out the killings from Peter Limone and conspired with the other defendants to accomplish the deed. Barboza’s credibility was the main issue at trial. In convicting the four defendants named above, the jury rejected the defense contention that Barboza falsely incriminated them in order to protect his true accomplices in the murder.

After all the defendants lost their appeals, the Supreme Court’s 1972 decision in Furman v. Georgia¹⁷³ saved Limone, Greco, and Tameleo from the death penalty;¹⁷⁴ they were given sentences of life without parole.¹⁷⁵ Thereafter, several of the defendants sought new trials. They presented new evidence, including Barboza’s affidavit recanting his testimony inculpating the Salvati Four¹⁷⁶ and previously suppressed reports from informants to the police also indicating that Barboza and Stathopoulos had testified falsely at trial.¹⁷⁷ The courts rejected these attempts to reopen the case.¹⁷⁸

A stunning break in the case occurred in 1998, when the Department of Justice appointed a task force to investigate corruption in the Boston office of the FBI. In December 2000, the Task Force released previously secret FBI records showing that mob boss Raymond Patriarca, and not Limone, had ordered Deegan’s murder. They also showed that the FBI had known in advance that the killing would take place and knew immediately afterwards that Barboza and his “partner” at the time, Vincent James Flemmi—and none of the Salvati Four—had participated in the killing.¹⁷⁹ It thus appeared that to protect their own informants, FBI agents had knowingly helped to frame four innocent men for capital murder.¹⁸⁰ Afterwards, they allegedly intervened to oppose defense efforts to obtain sentence commutations.¹⁸¹

In January 2001, a Superior Court judge heard this evidence on Limone’s motion for a new trial. The court also considered a 1976 affidavit from Barboza’s lawyer, first submitted in 1990, stating that Barboza admitted falsely testifying against Limone. Lawyers for two other participants in the killing also announced that their former clients had said that the Salvati Four were innocent.¹⁸² On January 8, 2001, the court granted Limone’s motion. After thirty-three years in prison, he was free. Two weeks later, the same judge threw out Salvati’s conviction.¹⁸³ Salvati was already free, having won the governor’s commutation of his sentence and release on parole in 1997.¹⁸⁴ Salvati had spent thirty years in prison. Judicial vindication came too late for Tameleo and Greco; both died in prison.¹⁸⁵

Recognizing the power of the new exculpatory evidence, the prosecution joined both Limone’s and Salvati’s motions for new trials. Prosecutors subsequently announced that they would not retry the two men because they did “not now have a good faith basis - legally or ethically - to proceed with any further prosecution” against them.¹⁸⁶ Although the prosecutors did not explicitly concede the innocence of the Salvati Four, the District Attorney acknowledged that “a great wrong was committed.”¹⁸⁷

In the aftermath of Limone’s and Salvati’s release, a Congressional committee launched an investigation into the FBI’s use of mob informants in Boston.¹⁸⁸ In hearings, committee members apologized to Salvati and declared their belief in his innocence.¹⁸⁹ Subsequently, lawyers representing Limone and the families of Greco and Tameleo sued federal and state authorities for $375 million.¹⁹⁰ Mr. Salvati has filed notice of his intention to sue the FBI for $300 million for false imprisonment.¹⁹¹

Comment: Despite the absence of any explicit judicial or executive determination that Salvati, Greco, Tameleo, and Limone were innocent of any involvement in Deegan’s death, the evidence points very strongly to that conclusion. But for the fortuitous timing of the Supreme Court’s decision in Furman, Massachusetts might have executed three innocent men.¹⁹²

Peter Vaughn, Suffolk County¹⁹³

On the afternoon of Thursday, January 6, 1983, two men held up a Star Market grocery store in Boston at gunpoint. Because employees of a neighboring Sears Roebuck regularly cashed their paychecks at the Market on Thursdays, the robbers escaped with over $38,000. In the ensuing weeks, three Star Market employees identified Peter Vaughn, a black male, from photo arrays and/or from a group of mostly black defendants standing in a courtroom dock, as one of the robbers. At trial, the Commonwealth case was based entirely on the testimony of those three eyewitnesses. For the defense, one of Vaughn’s friends testified that at the time of the robbery Vaughn was picking her up from work. The defense also introduced photographs of the robber taken by Star Market security cameras, as well as photographs of an identically dressed person of the same size, build and complexion, robbing the same market, also on a Thursday afternoon, two months later. At the latter time, Vaughn was in jail on an unrelated charge. In both robberies, the robber yelled “Time!” The defense argued, therefore, that the same man had robbed the market on both dates, and since Vaughn could not have robbed it on the second date, he did not rob it on the first. The trial court denied Vaughn’s motion for a directed verdict of acquittal, and the jury found him guilty. On direct appeal, after viewing the photographs from both robberies, the Appeals Court reversed Vaughn’s conviction and entered a verdict of acquittal. In doing so, the Court found that the “only rational explanation” for the evidence was that “the same person was involved in both robberies” and that Vaughn could not have committed the second one.

Following Vaughn’s release, several private compensation bills were filed on his behalf in the state legislature without success.¹⁹⁴

Comment: Some might view the Appeals Court opinion as implying official recognition of Vaughn’s factual innocence. Regardless, the circumstances attending his release raise strong doubts about his factual guilt.¹⁹⁵

Kenneth Waters, Middlesex County¹⁹⁶

In the early morning hours on May 21, 1980, Katharina Brow was stabbed to death in her Ayer home. Her purse, cash, and jewelry were missing. The police suspected Kenneth Waters, who lived near the victim and had broken into her home when he was a boy. Waters worked as a cook at the diner where Brow frequently ate and where she had spoken openly about the cash she carried with her. The police, however, lacked sufficient evidence to proceed. For two years the crime remained unsolved until police received information that Waters, while drunk, had admitted killing Brow to two former girlfriends.¹⁹⁷ A third witness, who had worked with Waters, told police that he had told her before the murder that he hated the victim. She also said that three weeks after the murder, Waters had sold her a ring that she had earlier given to Brow.¹⁹⁸ Furthermore, bloodstains allegedly left by the perpetrator at the scene were type “O,” the same as Waters’ blood. The police had inspected Waters for injuries a few hours after the murder and found none. Nevertheless, Waters was charged with the killing. Two years after the crime, unable to establish his alibi, he was convicted of first-degree murder and armed robbery and sentenced to life in prison.

Waters always maintained his innocence. His sister, Betty Anne Waters, vowed to become a lawyer and win his freedom. A mother of two who lacked a high school diploma, she managed to put herself through college and law school. As an attorney, she sought and found in the courthouse basement a box containing the blood-stained exhibits from her brother’s trial. In April 2000, the court approved an agreement between the District Attorney’s office and the defense to conduct DNA testing. The tests proved that Waters was not the donor of any of the biological evidence found at the crime scene.¹⁹⁹ They did reveal the DNA of an unidentified male donor. Prosecutors agreed not to oppose Waters’ motion for a new trial, which was granted in March 2001. Although prosecutors would not concede Waters’ innocence, they declined to retry him for the reason that there was “insufficient evidence to proceed.”²⁰⁰ After eighteen years in prison, Waters was free. Tragically, however, Mr. Waters died from an accidental fall six months later.²⁰¹

Comment: Although police investigators explained the DNA test results by suggesting that Waters committed the crime with an accomplice, no evidence in the twenty-one year history of the case appears to corroborate that theory. The major evidence of Waters’ guilt consists of drunken admissions he allegedly made to two former girlfriends, who Waters claimed lied in response to police coercion. While the circumstances of this case do not prove Waters’ factual innocence, they do raise strong doubts about his guilt.

We now turn to the final Section in this Part, in which I consider innocence claims on behalf of prisoners whose convictions were never vacated.

C. Persons Who Were Neither Officially Exonerated Nor Whose Convictions Were Vacated But As To Whose Factual Guilt Strong Doubt Exists

In this Section, I describe six cases of persons convicted in Massachusetts whose convictions were never vacated. All of these persons were either executed or died in prison.

Table C

Persons Who Were Neither Officially Exonerated Nor Whose Convictions Were Vacated But As To Whose Factual Guilt Strong Doubts Exist

Dominic Daley (also known as “Daly”), Hampshire County²⁰²

In 1806, two Irish immigrant laborers, Dominic Daley and James Halligan were convicted and hung for the murder of Marcus Lyon, a Wilbraham farmer. The conviction rested primarily on eyewitness testimony placing the two defendants in possession of the victim’s horse near the scene of the crime shortly after it occurred.²⁰³ Defense counsel, having been appointed only one day before the trial, presented no defense witnesses.²⁰⁴ The trial, deliberations, and verdict took place on the same day. Some contended that the men were innocent victims of “anti-Catholic fervor” prevalent at the time.²⁰⁵ Reportedly, “the uncle of the key prosecution witness subsequently confessed to the crime on his deathbed.”²⁰⁶ After the failure of earlier efforts to gain official exoneration of Daley and Halligan,²⁰⁷ Governor Michael Dukakis issued a proclamation in March 1984, stating that:

the historical record shows that religious prejudice and ethnic intolerance played a significant role in their arrest and trial, which resulted in the denial of their rights of due process and a miscarriage of justice .... [A]ny stigma and disgrace associated with their names as a result of their conviction is hereby removed.²⁰⁸

Comment: Governor Dukakis’s proclamation hardly amounts to an official exoneration. Review of the trial record and the surrounding circumstances, however, gives rise to a strong doubt as to the defendants’ factual guilt. The prosecution case rested primarily on weak²⁰⁹ eyewitness identification evidence. The other circumstances attending their conviction fit a pattern²¹⁰ common to many wrongful convictions; the defendants were poor, they came from a despised religious minority, and, in a climate of intense community passion,²¹¹ they were accused of brutally killing an established citizen.

Louis Greco (also known as “Grieco”), Suffolk County²¹²

One of the “Salvati Four,” Louis Greco died in a prison hospital ward in December 1995,²¹³ at age seventy-eight, after being incarcerated for twenty-eight years. For the facts of his case, and comments, see entry for Joseph Salvati, in Section B, above.²¹⁴

Like others of the “Salvati Four,” Greco proclaimed his innocence throughout his imprisonment. He reportedly “passed three polygraph [tests], including one administered on a national television show in 1983.”²¹⁵ Barboza’s former lawyer, F. Lee Bailey, stated that Barboza had admitted Greco’s innocence to him after the trial.²¹⁶ According to press reports:

The [parole] board voted twice to recommend commutation for Greco, once in 1985 and again in 1987, when his health was deteriorating. Greco underwent treatment for colon cancer, diabetes, and a heart condition. But Governors Michael Dukakis and William F. Weld refused to commute Greco’s sentence, citing the seriousness of the crime.²¹⁷

Two weeks before Greco’s death [in 1995], John Cavicchi [his lawyer] made a last-ditch effort to win a commutation and got Greco’s signature on an emergency petition. “It was just a scrawl and Weld still wouldn’t let him out,” Cavicchi said.²¹⁸

At the time of this writing, Greco’s attorney was pursuing measures to have Greco exonerated.²¹⁹ Meanwhile, Greco’s estate has filed a civil suit against the state and federal governments.²²⁰

James Halligan, Hampshire County²²¹

An Irish immigrant, James Halligan was convicted and executed in 1806 for the murder of Marcus Lyon, a farmer. For the facts of his case, and comment, see the entry for his alleged accomplice, Dominic Daley, above.

John O’Neil, Franklin County²²²

Hattie McCloud, thirty-six, an attractive widow from a prominent family in Buckland, near Shelburne Falls, was attacked and strangled along a country road on January 8, 1897. Her frozen body was discovered in an adjacent field the next morning. A ten dollar bill, a five dollar bill, and sixty-seven cents in silver were missing from her purse. Police surmised that some “drunken bum” must have committed the crime. Three days later, they arrested Jack O’Neil,

a jobless lad living with his mother and five of his brothers and sisters a short distance from the home of the victim .... O’Neil was painted as a ne’er - do-well who spent nearly all of his time drinking and in talking of women in an ungallant fashion. He was described as one of a gang that preyed upon single travelers and robbed them for money to buy liquor.²²³

Local opinion was divided between those who regarded O’Neil as a dangerous drunk, and “another group claiming he was being persecuted by police for racial reasons.”²²⁴ O’Neil was tried and convicted for capital murder. No testimony placed O’Neil at or near the murder scene. The prosecution, however, showed that O’Neil had no money until an hour before the murder, yet within two hours afterwards he had the same amount, in bills and coins of the same denominations, as was missing from the victim’s purse. There was testimony, furthermore, “that he gave false and contradictory accounts” of how he obtained the money.²²⁵ And, in addition to “other circumstantial evidence tending to connect [him] with the crime,” the prosecution produced a fellow prisoner from the jail who testified that O’Neil had “admitted that he had ten dollars of [McCloud’s] money,”²²⁶ which he claimed he got from her killer.

Sentenced to die by hanging, O’Neil was executed on January 7, 1898.²²⁷ A newspaper account written fifty years later concludes the tale:

O’Neil went to the gallows vigorously denying the killing and claiming that he was the dupe of racial bigotry .... “I shall meet death like a man and I hope those who see me hanged will live to see the day when it is proved I am innocent, and it will be, some time.”

A few months later, support of O’Neil’s claim came from a dying Shelburne Falls soldier, fighting the Spaniards in Cuba as a member of the old Sixth Massachusetts Volunteer Militia. The soldier, aware that he was going to die, confessed to the murder and cleared O’Neil.

Eddie Collins, an ace newspaper reporter, covering the Cuban action as a war correspondent for the old Boston Journal, interviewed the soldier and made arrangements for a signed confession .... Before the written confession could be obtained to back up the oral one, the soldier succumbed - and shortly afterwards, Collins died on the field.²²⁸

Comment: Whether “strong doubt” exists as to O’Neil’s factual guilt is arguable. Unlike almost every other case discussed in this Part, O’Neil’s claim of innocence rests entirely on hearsay, unsupported by official action of any sort. On the other hand, just as in the case of Daley and Halligan, discussed above, the circumstances attending his conviction fit a pattern²²⁹ common to many wrongful convictions: the defendant was poor and came from a minority racial group; he was accused of brutally killing a white woman from a locally prominent family; aside from O’Neil’s alleged admission to a fellow prisoner, which must be regarded skeptically,²³⁰ the evidence of guilt was entirely circumstantial. In light of these circumstances, the dying soldier’s confession to a reputable reporter, on the heels of O’Neil’s own end-of-life protestations of innocence, leads me to include this case in the “innocent” category.

Henry (Enrico) Tameleo, Suffolk County²³¹

One of the “Salvati Four,” Henry Tameleo died in prison in 1985 at the age of eighty-four, after seventeen years of imprisonment.²³² For the facts of his case, and comments, see entry for Joseph Salvati, above.²³³ Lawyers for Tameleo’s estate have filed suit for damages against federal and state authorities.²³⁴

Bartolomeo Vanzetti, Norfolk County²³⁵

On the afternoon of April 15, 1920, five or six men in a touring car robbed two employees of the Slater & Morrill shoe company in South Braintree. The robbers shot and killed Parmenter, the paymaster, and Berardelli, his guard. They escaped with the $15,000 company payroll. Three weeks later, two anarchists, Nicola Sacco and Bartolomeo Vanzetti, were arrested after their aborted attempt to collect a touring car, which police suspected of being used in the robbery, from storage. When stopped by the police, both men were carrying loaded revolvers and lied to the police about their background and activities. In proceedings that attracted enormous international attention and controversy, Sacco and Vanzetti were tried jointly for the double capital murder. In July 1921, they were convicted. Six years later, after rejection of several new trial motions, loss of their appeals, and review of their case by a special advisory committee appointed by the Governor,²³⁶ Sacco and Vanzetti were executed.

The government’s theory at trial was that Sacco was the shooter and Vanzetti one of his accomplices.²³⁷ The evidence submitted against Sacco included: eyewitnesses who identified him as the perpetrator; his possession, when arrested, of a Colt revolver that the prosecution claimed fired the fatal bullet at Berardelli, and of shells similar to those found near the body; a cap found at the scene, said to have been worn by the shooter, and identified as Sacco’s; and “consciousness of guilt,” manifested by Sacco’s admitted lies to the police when arrested. The evidence against Vanzetti was weaker. It included: eyewitness testimony placing him in the company of the robbers before and after the crime; evidence of his lies to the police when arrested, suggesting consciousness of guilt; and firearms evidence. The latter consisted mainly of evidence tending to prove that the .38 caliber revolver found on Vanzetti when he was arrested had been taken at the scene from the murdered guard, Berardelli. In defense, Sacco and Vanzetti impeached the government’s eyewitness, firearms, and ballistics evidence; they explained that their admitted lies to the police had been motivated by a fear that they would be persecuted for the peaceful but unpopular anarchist activities in which they claimed to have been engaged when arrested.²³⁸ In addition, each testified to an alibi and produced a number of supporting witnesses.

Controversy over the Sacco and Vanzetti case continues to this day. Critics of the convictions have pointed to a number of weaknesses in the state’s case, such as the failure to trace any of the stolen money to the defendants or to identify any of the other perpetrators.²³⁹ As Harvard Law School Professor Edmund Morgan noted, the state’s identification testimony was “weak and unconvincing.”²⁴⁰ Eyewitnesses for the prosecution had not only been subjected to suggestive identifications,²⁴¹ but experienced “improved” memories over time.²⁴² A large number of witnesses saw various stages of the daylight robbery, and yet, “[o]ver 75 percent of those having an opportunity to view the bandits before, during, or immediately after the crime denied having seen Sacco or Vanzetti.”²⁴³ The government suppressed the identity of at least one of those witnesses.²⁴⁴ Critics have also attacked the state’s firearms and ballistics evidence,²⁴⁵ the prosecution’s deliberate introduction of misleading testimony,²⁴⁶ the unfair exploitation of the defendants’ political radicalism,²⁴⁷ the tendency of the trial judge - whose expressions of prejudice against the defendants off the bench have been well established²⁴⁸ - to exercise his discretion consistently in favor of the government,²⁴⁹ and a critical imbalance between the capable, aggressive prosecutor and “bungling” defense counsel.²⁵⁰ Finally, critics have accused the FBI of playing a key role in framing the two radicals for a crime of which they were innocent.²⁵¹

Even among supporters of the verdicts, the case against Vanzetti has been regarded as weaker than that against Sacco.²⁵² With his long black moustache, Vanzetti was a man of distinctive appearance. Yet, the eyewitness testimony against him was particularly weak.²⁵³ Also, as Professor Felix Frankfurter wrote, his alibi “was overwhelming. Thirty-one eyewitnesses testified positively that not one of the men that they saw in the murder car was Vanzetti. Thirteen witnesses either testified directly that Vanzetti was in Plymouth selling fish on the day of the murder, or furnished corroboration of such testimony.”²⁵⁴ The case for Vanzetti’s innocence was strengthened in 1985 by the publication of a new study.²⁵⁵ The only physical evidence against Vanzetti was the .38 caliber revolver found in his possession, which the prosecution argued belonged to the victim, Berardelli. But law enforcement files released by the state police in 1977 show that police had an investigator’s report that suggested that the guns were different.²⁵⁶ The prosecution never disclosed this exculpatory evidence to the defense.²⁵⁷ Efforts by supporters of Sacco and Vanzetti to win official exoneration have not succeeded.²⁵⁸ In 1977, however, Governor Michael Dukakis issued a controversial²⁵⁹ proclamation declaring August 23, the fiftieth anniversary of the executions, as “Nicola Sacco and Bartolomeo Vanzetti Memorial Day.” Although it stopped short of asserting the innocence of the two men, the proclamation did describe the atmosphere of the trials and appeals as “permeated by prejudice against foreigners and hostility toward unorthodox political views” and declared “that any stigma and disgrace should be forever removed from the names of ... Sacco and ... Vanzetti, from the names of their families and descendants, and so, from the name of the Commonwealth of Massachusetts.”²⁶⁰

Comment: Despite the absence of official exoneration, the record appears to support the judgment that Vanzetti was factually innocent. Reason exists to suspect the same of Sacco,²⁶¹ but the arguments in support of that conclusion remain sufficiently speculative that I have not included him in Table C.

IV. DISCUSSION

This Part attempts to draw meaning from the cases described in Part III. Although space does not permit a comprehensive analysis, I shall comment on some of the principal features of the data.

A. Number of Cases Found

Part III describes thirty-three cases in which innocent men and women were convicted of serious crimes. Six of the thirty-three were exonerated through DNA evidence. The fact that I was able to identify only thirty-three cases over the past 200 years should not be taken to mean that other such cases do not exist. Two considerations suggest that the true number of wrongful convictions is much higher. First, because local newspaper indices are not available for earlier periods, newspaper reports of relevant cases dating back more than twenty years are difficult to find.262 Second, only a fraction of wrongfully convicted prisoners can likely overcome the daunting obstacles they face to proving their innocence. In that effort, success often depends on the prisoner’s good fortune as much as anything else.263

As an example of the obstacles to exoneration, consider those affecting prisoners seeking post-conviction DNA or other forensic testing. Prisoners lack the rights to the assistance of counsel, to funds for help in locating the evidence to be tested, to access to the evidence for the purpose of testing, and to funds to pay for testing.264 Prosecutors have the ability to ease the impact of these obstacles and frequently do. But the absence of any legal entitlement to post-conviction testing in appropriate cases, and the lack of uniform prosecutorial policies, leaves prisoners at the mercy of the District Attorney’s willingness to cooperate in each case.265 In addition, the absence of any requirement that physical evidence be preserved for the duration of a prisoner’s incarceration results, very often, in the loss or destruction of potentially exonerating evidence.266 Prisoners who cannot rely on forensic testing to prove their innocence face comparable or greater obstacles to exoneration.267

For these reasons, we can never know the number of false positives produced by the criminal justice system. Scholars who have attempted to estimate the percentage of convictions involving innocent defendants have arrived at percentages ranging from 0.5% to 4%.268 Taking the most conservative figure, if only 0.5% of the felony convictions in Massachusetts involved factually innocent defendants, the number in FY 2000 alone would have been ninety-four.269 If, instead of considering all felony convictions, we took only those who were convicted of the most serious felonies and sent to state prison, the figure would be ten innocent prisoners each year for the last ten years.270

Regardless of the likely rate of wrongful convictions in Massachusetts, we can profit by examining the known miscarriage cases in search of systemic practices that contributed to their occurrence. Although we have identified only a small number of such cases, analysis reveals patterns that resemble those found in larger samples.271

B. Innocence in Capital Cases

It has been convincingly argued that, as a general matter, wrongful convictions occur disproportionately often in capital cases.272 The Massachusetts data support that generalization. As Table 1, below, shows, over half (eighteen out of thirty-three) of the wrongful convictions identified above were for first-degree murder, a crime punishable during most of the years covered by this study by death.273 The exoneration of three of those eighteen murderers was undisputed. Four of the eighteen, all described in Table C, were executed. This history strongly suggests that if capital punishment is reinstated in the Commonwealth, it will at some point be applied to innocent persons.

Table 1

Convictions in Capital Crimes

C. Actual Punishment Received

Table 2

Defendants’ Actual Punishment274

Table 2 shows the actual punishment received by each person in Tables A, B, and C. Although six of the fifteen officially exonerated persons (Table A) were released before the end of one year in prison, the last of those “prompt” exonerations occurred in 1935. Since then, all of the wrongfully convicted prisoners who were released (Tables A and B) served significant, often long, prison terms. The others (Table C), either spent many years in prison before dying there or were executed.

D. Procedures for Exoneration and Release

Table 3

Official Exonerations in Massachusetts 1806-2002

Table 3 shows the chronological distribution of the fifteen official exonerations (Table A) and the procedures employed to win release. Notably, nine of the cases occurred between 1886 and 1960, and the remaining six from 1990 to the present, with none in the intervening three decades.275 Table 3 also reveals the decline, over time, in the use of the pardon power to free the innocent. Since 1950, only one officially exonerated prisoner has been pardoned; the other six, including four who were exonerated since 1997 on the basis of DNA evidence, won release on motions for new trial. This decline in the use of pardons to exonerate innocent convicts mirrors a nation-wide decline in grants of clemency in capital cases. That trend is mainly thought to reflect the increased political risk of granting clemency in these “law and order” times.276

E. Causal Factors Associated with Wrongful Convictions

Studies of wrongful convictions in the United States have identified causal factors that are associated with such errors. For example, Barry Scheck and his colleagues studied seventy-four cases in which post-conviction DNA testing led to exoneration.277 In eighty-one percent of the cases, one or more eyewitnesses mistakenly identified the innocent prisoner as the perpetrator. The other causal factors identified were serology inclusion (thirty-eight percent), police misconduct (fifty percent), prosecutorial misconduct (forty-five percent), defective or fraudulent science (thirty-four percent), microscopic hair comparison (thirty-five percent), bad lawyering (thirty-two percent), false witness testimony (twenty percent), informants/snitches (nineteen percent), false confessions (twenty-two percent), other forensic inclusions (seven percent), and DNA inclusions (one percent). Other studies outside of Massachusetts have identified many of the same factors.278 What light do the cases described in this paper shed on the causes of wrongful convictions in Massachusetts and on the direction of needed reforms?

Table 4 shows the causal factors that appear to have been present in the thirty-three wrongful convictions examined in this Article. Despite the small number of cases in the present study, the data reveal some of the same prominent causal factors as predominate in larger studies. In particular, the Massachusetts cases show a markedly high incidence of eyewitness error, police misconduct, and the suppression of exculpatory evidence. Thus, the practices generating these errors and abuses deserve special scrutiny.

Table 4

All Released Prisoners 1806-2002, Causal Factors

1. Eyewitness Error

Eyewitness misidentification has contributed disproportionately to wrongful convictions in Massachusetts, just as it has elsewhere.280 Over half of our fifteen official exonerations involved mistaken eyewitness identification, as did the same proportion of the total number (thirty-three) of wrongful convictions.281 Moreover, most of the nine official exoneration cases in which misidentification occurred involved multiple mistaken eyewitnesses, including five in Collins, four in Passley, and seventeen in Andrews.282 A number of the misidentifications occurred despite the witness’s good opportunity to observe the perpetrator.283 The demonstrated unreliability of eyewitness identification evidence in these cases necessarily raises doubts about the accuracy of other convictions in the Commonwealth based upon similar evidence.

The data also confirm what behavioral scientists have proven about the need for new procedural safeguards in obtaining eyewitness identifications.284 Authorities are beginning to pay attention to this need. For example, the Department of Justice recently issued guidelines for law enforcement on proper eyewitness identification procedures,285 and the Attorney General of New Jersey has adopted these guidelines.286 A detailed review of the police identification procedures employed in our sample cases is beyond the scope of this Article. However, some of the procedures betray the absence of such recognized safeguards as avoiding unnecessary one-on-one show-ups,287 keeping careful records of what was said and done at photographic lineup proceedings,288 and avoiding giving confirming feedback to witnesses who identify suspects.289 This suggests that eyewitness identification procedures used currently in Massachusetts should be reviewed with an eye toward bringing about needed change.

2. Police and Prosecutorial Misconduct

In approximately half of the seventy-four DNA exonerations studied by Scheck et al., police and prosecutorial misconduct played a role.290 Other observers also have noted the substantial role of such misconduct in wrongful convictions.291 As shown in Table 4, above, the Massachusetts cases conform to that pattern, betraying a range of official misconduct including perjury,292 obstruction of defense witnesses,293 and loss294 and suppression295 of exculpatory evidence. These lapses occurred in a context in which prosecutors have the duty to disclose certain inculpatory and exculpatory evidence to the defense before trial but must depend upon the police to gather, record, preserve, and transmit relevant evidence to them. Without adequate regulation to ensure that the police perform those duties, the innocent are especially prone to conviction. This happened, for example, in the Salvati case, in which exculpatory police reports were not given to the trial prosecutor.296 It happened also in the Donnell Johnson case.297 At an initial bench trial in the Johnson case, the investigating police detective falsely denied that the defendant, when first questioned, had given an exculpatory statement. Mid-way through the subsequent jury trial, the prosecutor first received a written police report of Johnson’s statement and disclosed it to the defense.298 Both the Salvati and Johnson cases illustrate the harm that can flow from the prosecutor’s lack of access to a full record of the police investigation.

This lack of prosecutorial access lends itself not only to police suppression of exculpatory evidence but to delayed police production of new inculpatory evidence. The ability of police to control the timing of recording and revealing evidence makes it easier for police, if they wish, to rescue a weak prosecution case at the eleventh hour by fabricating inculpatory evidence. This appears to have been the fate of Marvin Mitchell,299 whose conviction rested in part on evidence of his alleged admission to the police that he had worn pink pants on the day of the crime. Police witnesses conceded that they had neither included this devastating admission in their contemporaneous reports, nor informed the prosecutor of it until fifteen months after the statement was purportedly made.300 Suspicious eleventh hour revelations of previously unrevealed inculpatory evidence also occurred in the Sarsfield,301 Ellison,302 and Vanzetti303 cases. If this occurred in four of our thirty-three cases, one must wonder how often the same practice has contributed to wrongful convictions of which we remain ignorant.

Without full and timely access to relevant evidence in police hands, prosecutors cannot meet their obligations to defense counsel under the Brady doctrine, requiring disclosure of exculpatory evidence, and local discovery rules.304 As a result, fairness and accuracy in criminal adjudication must suffer. The Massachusetts wrongful conviction cases reveal the need for improvements in police investigative record-keeping and police-prosecutor communication. This suggests the wisdom of considering models for reform found in the laws of other jurisdictions.305

F. Post-Exoneration Compensation and Other Relief

Table 5

Compensation

Although some of the wrongfully convicted persons identified in this study were released after only a few weeks or months of imprisonment, some spent many years in confinement. Intuitively, one would expect such persons to be compensated for the wrongs they suffered. Yet, as Table 5 reveals, only a small fraction (five out of thirty-three) have so far received compensation: three of the fifteen prisoners who were officially exonerated (Table A), two of the twelve prisoners whose convictions were vacated because of strong doubts about factual guilt (Table B), and none of the prisoners whose convictions were not vacated (Table C).

The absence in Massachusetts of any statute authorizing state compensation for wrongfully convicted prisoners311 leaves those who seek compensation with two options, neither of which is very promising. If the prisoner can prove that the prosecuting authorities convicted him by violating state and/or federal civil rights laws, he might be able to sue successfully for damages.312 Two exonerated prisoners in our sample have won substantial settlements in civil rights suits and several more have either brought pending suits or will likely do so in the future. However, these statutes impose strict substantive, procedural and practical requirements, which few exonerated prisoners can meet.313 Those who cannot must persuade the legislature to pass a private compensation bill. In the thirty-three cases described above, the legislature has compensated only three prisoners in total and none since 1985. In comparison to administrative and judicial proceedings, the private bill mechanism lacks uniform standards and procedures for deciding claims. It is, therefore, prone to arbitrary and uneven application.314

Scholars have argued persuasively that wrongfully convicted prisoners should have a right to state compensation, even when the authorities have acted blamelessly.315 Massachusetts should follow the lead of states that have adopted compensation statutes.316 The Commonwealth should also recognize that exonerated prisoners need and deserve other services designed to restore them to productive lives in the community, such as housing, education, employment, and counseling.317

G. The Need For An Innocence Protection Act

As stated previously, prisoners seeking post-conviction exoneration through DNA or other scientific testing face daunting obstacles. In recent years, a majority of states have adopted ameliorative legislation.318 Typically, such legislation defines the conditions and procedures under which prisoners may obtain post-conviction access to evidence for testing purposes. Statutes address a range of issues, including funds for testing, access to counsel, discovery, preservation of evidence, and standards for relief.319 Enactment of such a statute in Massachusetts would give needed guidance to prisoners, counsel, and the courts.

Some foreign jurisdictions, including England and Scotland, have gone further by establishing government-financed, independent “innocence commissions” to receive and investigate all claims of innocence by convicted persons.320 Thus far, no American jurisdiction has followed suit.

H. The Need For Official Commissions of Inquiry

Wrongful convictions are tragic events. Like other such events, they raise urgent questions: Why did the justice system fail? How, if at all, might the error have been avoided? How can we prevent a recurrence? In pursuit of answers, some jurisdictions have responded to particular miscarriages of justice by establishing commissions of inquiry.321 For example, after thirteen death row exonerations in Illinois, Governor George Ryan appointed a commission to study, inter alia, the causes of the wrongful convictions in those cases. In 2002, the Commission’s final report recommended a number of changes in state criminal law and procedure.322 Similar commissions have sat to investigate the causes of miscarriages of justice in Canada323 and the United Kingdom324 and have recommended appropriate reforms. The ongoing Congressional hearings into the conduct of the FBI in the Salvati Four case also follow this approach.325 Every state, including Massachusetts, should follow these examples.

V. CONCLUSION

The conviction and punishment of innocent persons in Massachusetts cannot be regarded as a freakish rarity or a matter of only historical interest. This Article has identified a number of individuals who have suffered that fate. Others undoubtedly exist and still more will certainly join their ranks. As Scheck et al., noted, “[w]hat matters most is not how these people got out of jail, but how they got into it.”326 The study of wrongful convictions sheds light upon the causes of error and underscores the need for reform. The present effort is no substitute for inquiries by official commissions, which I have urged. But the data presented here do indicate that, in Massachusetts, eyewitness misidentification and suppression of exculpatory evidence by police and prosecutors have contributed disproportionately to the conviction of innocent persons. This suggests the need to review eyewitness identification procedures, as well as police procedures for recording, preserving, and transmitting evidence to prosecutors. The data also suggest the inadequacy of present arrangements for compensating innocent, exonerated prisoners. Finally, Massachusetts lawmakers should address the plight of prisoners who seek post-conviction forensic testing by adopting an Innocence Protection Act. Addressing wrongful convictions in these ways would not eliminate the problem entirely but could be expected to reduce the number of innocent persons who are convicted and imprisoned.

Footnotes