A man who spent nearly three decades in state prison for a 1991 Dorchester killing that both prosecutors and defense attorneys say he didn’t commit was ordered released Wednesday by a single justice of the state Supreme Judicial Court.
Robert Foxworth, 53, was convicted of second-degree murder in the fatal shooting of Kenneth McLean, a suspected drug dealer, but has consistently maintained his innocence. Attorneys argued that he should be released in part because of the COVID-19 pandemic that has caused outbreaks in some prisons.
Justice Scott Kafker on Wednesday ordered Foxworth’s immediate release to home confinement at his brother’s residence while a Suffolk Superior Court judge reviews a motion seeking a new trial, according to court documents. Foxworth is allowed to leave only for work and medical or legal appointments until that motion is resolved.
Suffolk District Attorney Rachael Rollins praised Kafker’s “swift action to ensure that a wrongfully-convicted individual has been released,” in a statement Wednesday. “In a time of increased risk of exposure to COVID-19 in our prisons, any administrative delay in Mr. Foxworth’s release presented the very real possibility that his wrongful conviction could have become a death sentence.”
Foxworth was one of three defendants convicted in the case. A prosecutor in 1992 violated his constitutional rights by coercing an eyewitness into identifying Foxworth, according to Rollins’s office.
John Thompson and Linda Thompson, two of Foxworth’s attorneys, said he walked out of MCI-Shirley about 4:30 p.m. Wednesday and called them from the facility’s parking lot.
“I love you guys. I can’t even believe this,” he said, according to his lawyers.
John Thompson said Foxworth had been working hard for decades to secure his freedom.
“Robert has worked on his case and followed his case consistently the whole time he’s been in prison,” he said. “He’s a very determined guy, and a very smart guy, and he worked really hard to bring this about. … He’s a good person, and he’s going to live a happy life.”
Rollins had joined with Foxworth’s attorneys in filing an emergency petition asking that Foxworth’s sentence be stayed or that a Superior Court judge be ordered to immediately rule on a motion for a new trial after the Suffolk Superior Court judge overseeing the case, Christine M. Roach, said she couldn’t immediately hear the motion for a new trial.
In that filing, Rollins said Foxworth had been in prison nearly 30 years and “has always maintained his innocence during those thirty years — being denied parole twice at least in part because he would not admit guilt and ‘take responsibility’ for a crime he says he did not commit.”
If Foxworth is granted a new trial, Rollins plans to decline to prosecute because “we now know he was wrongfully convicted,” the DA’s office said in a statement.
Foxworth must next appear before a Suffolk Superior Court judge who will review the motion for a new trial. John Thompson said it’s unclear when that will happen, but he expects that the judge will grant the trial and then allow Rollins’s office to drop the charge.
“The case for doing that is overwhelmingly strong,” he said. “We’re confident that there are very good reasons and that it’s just and appropriate for this to be the disposition of the case.”
Rollins’s office said its Integrity Review Bureau, led by Assistant District Attorney Dara Kesselheim, had conducted “an extensive investigation and intense scrutiny” of Foxworth’s case and had “concluded that the defendant clearly did not receive a fair trial.”
“Justice was not done here, and we have a duty to correct this wrongful conviction, not only for Mr. Foxworth’s sake but also for the communities my office serves,” Rollins said.