Robert Foxworth was tried and convicted in 1992 of second-degree murder in the fatal shooting of a suspected drug dealer in Dorchester.
Now 53, Foxworth awaits the reversal of a conviction both defense attorneys and Suffolk County prosecutors believe to be unjust.
His lawyers have filed a motion for a new trial. Not only does Suffolk District Attorney Rachael Rollins support the motion, she has pledged to drop the case entirely as soon as the new trial is granted.
There’s just one catch: the Suffolk Superior Court judge overseeing the case, Christine M. Roach, has said she can’t hear the motion immediately.
So Tuesday, Rollins joined Foxworth’s attorneys in pleading with the Supreme Judicial Court to clear the way for Foxworth’s immediate release. Citing the prevalence of COVID-19 in the state’s prisons — and Foxworth’s high risk for contracting the virus — the unusual petition demands that the court system act with urgency.
“Any day you spend in jail when you shouldn’t be there is an outrage,” Rollins said in a telephone interview. “I ask these judges to close their eyes and act as if their child, or grandchild, or niece or nephew was the defendant, waiting for justice.”
The motion — pending before a single justice of the SJC — is the latest move in a two-decade effort to clear Foxworth’s name.
He was convicted, along with two other defendants, in the death of Kenneth McLean nearly three decades ago in a homicide whose motive was never established. But he has consistently maintained his innocence, and since at least 2001, his lawyers have fought for a new trial, maintaining that he was convicted on strikingly weak evidence that may have been obtained through prosecutorial and police misconduct.
They have met with limited success: in 2008, US District Judge Rya Zobel found the evidence compelling enough to order a new trial for Foxworth, temporarily freeing him. But her ruling was overturned on appeal a year later and Foxworth was returned to prison. He has been denied parole twice because, his attorneys say, he has been unwilling to accept responsibility for a crime he insists he did not commit.
But the defense lawyers have found a receptive audience in Rollins. Her office’s Integrity Review Panel has conducted a thorough review of the case, led by Assistant District Attorney Dara Kesselheim. Rollins said that review left no doubt in her mind that justice has not been served in this case.
“What we found was deeply alarming and incredibly problematic,” Rollins said.
Among the holes in the case: the new motion asserts that a prosecutor placed a key witness against Foxworth in a jail cell — during a break in his testimony — and physically threatened the witness, who was 15, into identifying Foxworth as the shooter. That critical testimony has since been recanted, Rollins said. In addition, a codefendant who had given a statement entered into evidence that implicated Foxworth did not testify, giving Foxworth’s attorneys no opportunity to challenge his version of events.
Rollins said the high incidence of COVID at MCI-Shirley, where Foxworth is being held, made it unconscionable that a judge was delaying a hearing on the motion to release him.
“This person is not at the Ritz-Carlton, waiting for the outcome,” she said. “He’s in a place that is a petri dish for COVID-19. So we need to move with all deliberate speed to get him out.”
Whether it happens today or a week from now, Rollins’s decision to drop the case will almost certainly lead to Foxworth’s release. That is a huge coup for his defense attorneys, John Thompson, Linda Thompson, and Amy Belger. They have spent 19 years on this case. (Remarkably, for four years prior to that, Foxworth managed to keep his case alive while representing himself.)
John Thompson said Foxworth has been the victim of an appellate system that reviews procedural issues, but largely ignores the basic question of guilt or innocence.
He said courts and previous prosecutors haven’t cared about whether Foxworth actually committed the crime.
“The government has put all of its resources into defeating his claims, instead of trying to investigate to see if he was really guilty.”
Thompson praised Rollins and her office for being willing to take a fresh look at the case, including reviewing all the evidence, and re-interviewing the witnesses. But he said many innocent people behind bars will never get the thorough review that his client’s case has.
“A tremendous amount of government resources goes into convicting people of serious crimes — as it should,” Thompson said. “But there are almost no resources available to people who have been wrongfully convicted. We know there are many people who have been in this situation, and it has been his character and determination that have made the difference.”
Rollins noted that Foxworth would be the eighth inmate convicted of murder or manslaughter to be freed through the work of the Integrity Review Unit, since she took office in 2019.
Rollins acknowledged that some critics believe the work of a prosecutor is to put people in prisons, not to advocate for their release. But she defended her actions in this case and others like it.
“This is not anti-police, it is pro-community,” she said. “I think there is a lot of community healing that takes place as a result of our being willing to look at whether we were right in every single case.”