A shocking number of people in this country are wrongly convicted of serious crimes and are sent away for life. The Boston College Innocence Program has helped to win the release of four of them in just the past two years.
WHEN FIREFIGHTERS ARRIVED at 102 Belair Street in Brockton, Massachusetts, in the predawn hours of April 17, 2003, they observed two teenagers poking their heads out of second-floor windows. One of the teens was 17-year-old Frances Choy, who, awakened by her mother’s scream of “Frances, there’s a fire!” had called 911 on her cell phone. The other was Kenneth Choy, Frances’s 16-year-old nephew. Inside the house, a fire was burning with such intensity that it had melted wall fixtures, and thick smoke had trapped Frances, Kenneth, and Frances’s parents—Jimmy and Anne Choy—in their bedrooms.
Anne Choy would be pronounced dead later that morning at Good Samaritan Hospital, but as a headline in the next day’s Boston Globe made clear, things could have been much worse: “Police Say Teen’s Call about Fire Saved Three Lives.” (Jimmy Choy would eventually also die as a result of the fire.) On the day after that, however, a different narrative began to emerge. The Plymouth County District Attorney’s Office alleged that Frances and Kenneth had actually been the ones who started the fire, conspiring to murder the elder Choys by burning down the house.
Kenneth Choy had come from Hong Kong to live with the Choys when he was 13, following the suicide of his father, who was Jimmy’s son. After the fire, investigators searched his bedroom and found instructions he’d written about how to burn down the house, including dousing areas of it with gasoline. But he told police that it was Frances who was behind the fire, because she “wanted better parents.” He claimed that his aunt had grown exasperated with his refusals to set the blaze, so had done it herself. Both teenagers were ultimately charged with two counts of first-degree murder.
Frances, a quiet and gentle rule-follower who’d never been in trouble and was working her way toward college, was a most unlikely suspect. Yet prosecutors built their case around the idea that she was actually a cold and manipulative mastermind who’d orchestrated the plot to kill her parents. At two different trials, the prosecution was unable to convince deadlocked juries of Frances’s guilt, but the third time was the charm. In 2011, eight years after the fire, a jury found her guilty. She was given a mandatory life sentence without the possibility of parole. But here’s the thing: She was innocent.
In Massachusetts, a first-degree murder conviction triggers an automatic appeal to the Supreme Judicial Court. Any appeal is an uphill climb, a long and complicated process with a narrow chance of success. An appeal of a murder conviction is an uphill climb into hurricane headwinds. This is true regardless of whether the defendant happens to have been wrongfully convicted. In Frances’s case, there were transcripts from her three trials to pore over, police and fire investigation reports, state police crime lab reports, photographs, and witness interviews. The task of gathering and sifting through all of this for Frances’s appeal fell to the Boston attorney John J. Barter, a solo practitioner working out of a four-story brick-and-stone building in the North End, whom the court appointed to the case. As Barter continued to examine the files, it became clear to him that Frances had been scapegoated. That she was, in fact, not guilty. To help prove that in a court of law, Barter eventually sought the help of the Boston College Innocence Program.
SINCE 1989, MORE THAN 2,700 PEOPLE in the country have been exonerated after being wrongfully convicted of felony crimes—an average of nearly 90 a year. Collectively, they served more than 24,600 years in prison. These are just the cases that we know about, the ones that garnered headlines and TV news coverage of exonerees who, after spending decades behind bars, walked through prison gates and collapsed into the arms of loved ones.
But for every high-profile exoneration, there is an unknowable number of other wrongful convictions. It’s a dark parlor game to speculate how many of our nation’s 2.3 million incarcerated citizens might actually be there for a crime they didn’t commit. Charlotte Whitmore, the BC Innocence Program’s supervising attorney, gets this question from time to time. “I think we have a pretty good justice system,” she’ll say. “It’s not perfect, but we probably get serious felony convictions right about 95 percent of the time.” Impressive, maybe, but as Whitmore will add, “If planes crash 5 percent of the time, would you get on one? If a surgeon killed 5 percent of his patients, would you go to him?”
To address this massive problem, more than fifty organizations around the country, collectively known as the Innocence Network, work to identify wrongly convicted inmates and free them. Some, such as BC’s Innocence Program, known as the BCIP, are affiliated with universities, but most are freestanding nonprofits or units within public defender offices with a mission to provide free representation to prisoners with plausible claims of innocence.
The BCIP was launched in 2006 by BC Law Professor Sharon Beckman. After several years of steady progress, the program took off in 2013, when Beckman received an unexpected gift from a New York securities lawyer who asked a judge to send some unclaimed funds from a settlement her way. Beckman used the gift to hire Whitmore to help establish a clinic in which a small group of law students would work on cases, the legal equivalent of a teaching hospital where medical students tend to patients under the supervision of physicians.
Today, at any given time, the BCIP is representing about a dozen inmates in innocence cases. Sometimes the program acts as a client’s only counsel, and sometimes it acts as co-counsel with court-appointed attorneys or with the two other Massachusetts-based Innocence Network organizations, the New England Innocence Project and the Committee for Public Counsel Service (CPCS) Innocence Program. In just the past two years, the BCIP has secured the release of four clients from wrongful imprisonment.
Law students enrolled in the BCIP immerse themselves in the details of their clients’ cases. Sarah Carlow, for instance, was just starting her second year at the Law School, in 2018, when she was assigned to work on Frances Choy’s case. By then, Choy had served almost fifteen years in connection with the death of her parents. Carlow recalls how her work for the BCIP sent her to the women’s state prison in Framingham to meet Frances for the first time. While incarcerated, Frances had earned a sociology degree. She’d passed a cosmetology exam, worked as a sous-chef, and spent five years training service dogs, raising Labs from puppies. “As soon as I met her, I was, like, I want to be involved with this for the long haul until I can see her walk out of prison,” Carlow said.
IN THE HOURS AFTER THE FIRE, investigators questioned both Frances and Kenneth at the Brockton hospital where they were treated for smoke inhalation. That evening, police then questioned the two surviving Choys yet again, this time at police headquarters. No audio or video recordings were made of the interrogations. This, a Brockton police detective would later testify, was because the station wasn’t equipped to record interviews. Officers would also testify that they’d destroyed their notes after preparing their typed reports.
Over the course of a three-hour interrogation, Frances told police that she had been awakened by her mother’s screams, and so called 911. The investigators told Frances that gasoline had been found on her sweatpants and asked how it had gotten there. She insisted she did not know that or how the fire had begun.
Meanwhile, in a separate room, detectives questioned Kenneth Choy. Investigators had found two notes under his bed after the fire—notes that detailed plans to burn down the house, including dousing the floor with gasoline—but Kenneth insisted he was not the author. When police said the handwriting matched his own, Kenneth relented and said a “Black kid” at school had made him write the notes. He could not name the student. After police expressed their doubts, he acknowledged that the notes were his. When police suggested he did not act alone, he claimed that Frances had directed him to write the notes, and that the fire had been her idea.
The detectives then confronted Frances with her nephew’s accusation, but she continued to deny having anything to do with the fire. Only after hours of interrogation, when police said they were about to arrest her, a detective would testify at her trial, did Frances change her story. “Fine, I planned it,” she said, according to the detective’s testimony. She immediately recanted, he acknowledged, but she was charged and booked, handcuffed to a railing, and photographed.
Frances wouldn’t stand trial until 2008, five years after the fire, and, having been denied bail, would spend the entire time in jail. When her case finally made it to trial, a canine officer testified that his dog had “alerted” to accelerant on her sweatpants. A state police chemist testified to the presence of gasoline residue on the sweatpants. But the twelve jurors couldn’t agree on a verdict and a mistrial was declared.
In a separate trial that same year, Kenneth Choy was acquitted of murder, his lawyer arguing to the jury that the fire had been Frances’s idea, and that she had started it. Kenneth was a free man.
Frances was tried for a second time in 2011, and this time a new witness testified against her: Kenneth. Though her nephew had been acquitted of murder charges, prosecutors still had it within their power to charge him with arson or conspiracy to commit murder. However, they gave him immunity in exchange for his testimony against Frances. Yes, he told jurors, he had written the notes, but he never had any intention of starting the fire. Yes, he testified, he had placed two Sprite bottles filled with gasoline on the basement stairs, but he insisted that he’d simply left them there. He testified that he was in his room with the door shut when he heard a liquid being poured out and then a “whoosh” sound. Despite Kenneth’s testimony, however, the jury once again was deadlocked.
Prosecutors chose to try Frances for a third time, with her new trial beginning a few months later. This time, however, there’d be no Kenneth Choy to testify. Facing heroin charges, he’d fled the country, leaving prosecutors without their star witness. No matter: Using Kenneth’s testimony from the previous trial, prosecutors were allowed to “role-play” his answers from the witness stand. If that sounds bizarre to you—a prosecutor acting out testimony from a previous trial—you’re not alone. Carlow, the law student, was assigned to look for any precedents. She found one similar instance, but the resulting conviction had been thrown out on appeal.
“How can this possibly be consistent with the right to confront your accuser?” Beckman said. “This is not just any old witness. It’s the initial suspect—the incentivized codefendant who’s immunized, the only person who’s accusing Frances Choy, the only one who’s saying he ever saw her do anything incriminating. Falsely, of course. And this is the testimony that’s presented in a role-play. That’s a major judicial error, the type that causes wrongful convictions.”
Kenneth Choy’s dramatic testimony about a couch and stairs doused with gasoline was contradicted by the state’s fire investigator, who testified there was no trace of gasoline on either, and that no accelerant was involved starting or spreading the fire. Nonetheless, on May 16, 2011, the jury found Frances guilty of murder and arson. She was sentenced to life in prison.
SHARON BECKMAN GREW UP IN ILLINOIS, the daughter of a plumber and a stay-at-home mom, and her childhood was the kind that politicians evoke when they want to harken back to simpler times. Beckman’s passion was competitive swimming (she would one day swim nonstop across the English Channel), and as a young girl she believed that being a swim coach was her calling. But after reading To Kill a Mockingbird—the American classic of a small-town attorney in Alabama who represents a Black man wrongly accused of rape—her life was on a different trajectory. She would be a criminal defense attorney. The book was a “complete moral awakening for me of the realities of life in America,” Beckman said. “The idea that an innocent person could be wrongly convicted and sentenced to death because of the color of his skin literally shocked me to my core. It was not a thing I had ever thought about before. That was my white privilege.”
After graduating from Harvard in 1980, Beckman worked as a paralegal for a time in Boston, then attended the University of Michigan Law School. After clerking for Supreme Court Justice Sandra Day O’Connor and working at law firms in Boston and Chicago, she joined the Boston College Law faculty in 1995. It was a time when America’s innocence movement was just beginning, driven in part by the emergence of DNA analysis, which led to several high-profile exonerations of wrongfully convicted prisoners. The escalating number of exonerations led many who worked in the criminal justice system to begin to question its fundamental fairness. “If you asked me in the late ’80s or early ’90s if I thought there were thousands of people in prison wrongly convicted of crimes they didn’t commit, I wouldn’t have been able to tell you that,” Beckman said. “Now I think the thousands we know about are just the tip of the iceberg.”
When Beckman launched the BCIP in 2006, she started modestly, having law students screen cases for the New England Innocence Project. The students would review transcripts and case files, search for physical evidence and witnesses, and research the validity of forensic testimony, then make a recommendation as to whether the NEIP should accept the case. The arrangement was educational, but limiting. “We’d determine the investigative pathways and then the case would be sent to a law firm, and that would be the end of the students’ role in the case,” Beckman recalled. “I always wished we could have an in-house innocence clinic at BC Law.” Then, in 2013, the gift from the New York securities lawyer, Greg Keller, helped Beckman turn her wish into a reality.
As luck would have it, Charlotte Whitmore moved to Boston right around the time of Keller’s gift. Whitmore had spent the prior three years as the staff attorney at the Pennsylvania Innocence Project. When she’d started there, in 2010, the organization’s legal director—and the only other attorney on staff—led her into a room filled with 100 or so large boxes, each containing the files of someone in prison claiming to be innocent. “Start reading,” the legal director said. It took Whitmore a month to skim the files. “I pulled up three cases at the end of that month that I wanted to start with,” she recalled. “Something in them caught my eye, a red flag.” All three of those people have since been exonerated. The first to be released, Eugene Gilyard, had been wrongfully convicted of murder and spent fifteen years in prison. Whitmore worked on his case for three years before he was finally freed, in 2013. “When the judge announced her decision, the courtroom erupted, like out of the movies,” she said. “Everyone was crying and hugging. It was a really moving moment.” Innocence work was the only law she wanted to practice.
“She’s one of the best post-conviction innocence attorneys in the country,” Beckman said. And with the gift from Keller and a grant from the provost’s office, she was able to bring her to the BCIP. Together, they have transformed the program. Today, the BCIP represents its clients from start to finish. It has also expanded its mission to include policy and social-services work in the service of exonerees. “We want to reform the system to make it less biased, more fair, more accurate,” Beckman said.
In 2018, the BCIP was part of a coalition that helped to change Massachusetts law to double the maximum amount of compensation available to exonerees, from $500,000 to $1 million, and to stipulate that attorney fees incurred while pursuing a wrongful-conviction claim are not taken out of that compensation. More changes to the law are needed, Beckman said. For instance, when an exoneree is released from prison, there are no support mechanisms in place to ensure a smooth reentry into society. Prisoners released on parole or probation are typically set up with case workers and a social-services network, Beckman pointed out, but exonerees—people who are not guilty of any crime—are essentially on their own. Many are released to supportive families and friends. But others are not. “The state provides nothing to them,” she said. “No place to live, no transportation, nothing. That is a major gap in the law.” So the BCIP is working with state Senator Patricia Jehlen and others on legislation that would provide immediate reentry support for the wrongly convicted.
“The prosecution portrayed Frances as a manipulative schemer capable of murdering her parents. They dehumanized her and sold their anti-Asian stereotype to the jury.”
Meanwhile, the BCIP has created a social-services network of its own for the program’s clients. Law School Assistant Clinical Professor Claire Donohue JD’05, MSW’05 supervises graduate students, primarily from the School of Social Work but also from the Connell School of Nursing and the Lynch School of Education and Human Development, who work on setting up reentry plans for program clients. “We start by asking: Do you have housing security, food stability, are you medically sound and safe?” Donohue said. “Then we go to the second-order needs: Are mental health counseling or substance abuse counseling required? And then third-order: Do you aspire to further education or vocational training?” These plans can also be persuasive when judges are considering whether to release likely exonerees early while their cases are being officially resolved, Beckman said.
Beckman also sits on an SJC committee that reviews jury instructions in Massachusetts to ensure that they reflect the scientific consensus—a crucial step in helping to reduce biases that could affect a jury’s ability to return an accurate verdict. In 2015, for instance, the BCIP—working with BC’s psychology department—scientifically demonstrated the limits of human memory, which contributed to the court’s decision to create a model jury instruction in cases involving eyewitness identification testimony. The program is also part of a working group that is recommending best practices for helping district attorney offices to avoid wrongful convictions, and to recognize, acknowledge, and remedy them when they do happen. The report is scheduled to go before the Massachusetts Bar Association for approval this spring.
AFTER FRANCES CHOY WAS CONVICTED in 2011, the court appointed her case to John Barter for appeal. For help, he turned to a friend and colleague, Sharon Beckman. “I’m representing a client who’s innocent,” he told her. Beckman and Whitmore reviewed the case and promptly agreed to join as co-counsel in 2017. (The BCIP is very selective about the cases it accepts. Whitmore estimated that it declines more than 90 percent of the time.)
In trying to prove a client’s innocence, it’s not necessary to identify someone else as the actual perpetrator. But it helps. In the case of Frances Choy, the defense team was able to track down a new witness who’d been overlooked by the trial attorney. And this person made an earth-shaking claim—that Kenneth Choy had admitted to the witness that he was the one who’d set the fire that killed Jimmy and Anne Choy. According to the witness, Kenneth said that he and his mother (who lived in Hong Kong) were “mad at the Choys because they kept asking for more money.”
The investigation by Barter and the BCIP turned up more. One of the key arguments Plymouth County prosecutors had made to implicate Frances was that gasoline had been found on her sweatpants. But Frances’s team found an expert who said that the state’s lab tests had actually not shown evidence of gasoline. And the insistence by police officers that their interrogation rooms were not set up to record interviews? The attorneys and law students found a former Brockton police detective who swore otherwise. There was still more. Frances’s team was at last able to get the prosecutors’ entire case file, including material that hadn’t been given to Frances’s original attorney.
Among the bombshell finds in the file was an email that Assistant District Attorney Karen O’Sullivan had sent to a detective the night before he was to testify in Frances’s third trial. In the email, O’Sullivan included a script of what the detective should say on the stand, including testimony he had previously sworn under oath was not correct. Also in the file were handwritten notes from the detective’s interview with Frances—notes that the detective had previously testified were destroyed. Then there were the police reports from before the fire in which Jimmy Choy had gone to the authorities with his suspicions that Kenneth had been dealing drugs, information that might have more firmly established a motive for the boy to have set the fire.
But the most staggering disclosure came not from physical evidence or testimony from new witnesses, but from emails that Barter had fought for five years to get Plymouth County prosecutors to release.The emails, spanning the years 2006 to 2009, were between O’Sullivan and John Bradley, the two Plymouth County assistant district attorneys involved in prosecuting Frances Choy. In a motion filed in January 2020, Barter and the BCIP characterized the communications this way: “These emails included ‘jokes’ about Asian people, photographs depicting Asian people in a demeaning way, and commentary specifically about Frances, alleging that she was engaged in an incestuous relationship with her nephew and mocking her.” In one of the emails, drawing upon the fact that Frances’s extended family, united in their support for her, typically sat in the rear of the courtroom during hearings, the prosecutors sneered that, at an upcoming proceeding, she would be “wearing a cheongsam and will be the one doing origami in the back of the courtroom.” In another, Frances’s face was Photoshopped onto the body of a Girl Scout standing in front of a burning house. “Next time,” read the caption, “buy the [expletive] cookies.” The racial bias explicit in the trial prosecutors’ emails, the defense team argued, amounted to “structural constitutional error” that, by itself, demanded a reversal of the convictions.
Judge Linda Giles, who’d presided over the third trial, in which Frances was convicted, was appalled. Had she known about the emails, she wrote, she would have declared a mistrial and ordered that the prosecutors be removed from the case. Giles found that the newly discovered evidence of Frances’s innocence, mistakes by Frances’s trial counsel, and the evidence of prosecutorial and police misconduct all cast doubt on the integrity of the convictions. Last April, she ordered Frances released until her motion for a new trial could be ruled on. Then, in September, she ruled that “justice may not have been done” and vacated Frances’s convictions. The Plymouth County District Attorney’s Office, which called the emails “reprehensible,” agreed that the convictions should be vacated and declined to pursue a fourth trial. Frances was exonerated on September 29, 2020, joining Omar Martinez, Ronnie Qualls, and later Thomas Rosa Jr. as wrongfully convicted BCIP clients who have been released in the past two years. Barter said the BCIP’s work was crucial to the case’s outcome. “I cannot fully express my gratitude for all the ways BCIP helped Frances,” he said, “including investigation, formulation and drafting of legal arguments, pursuing discovery, and supporting Frances during her reentry to life outside of the prison walls.”
Karen O’Sullivan quit the Plymouth County office in 2012 and is now the first assistant district attorney in Bristol County. John Bradley was fired in 2012 for reasons unrelated to the Frances Choy case. He filed suit alleging wrongful termination and settled in 2017 for a reported $248,000. The emails O’Sullivan and Bradley exchanged may help to explain why Frances was exonerated, but to Beckman they demonstrate why she was wrongly convicted in the first place. “The dehumanizing racial stereotypes in their emails became their theory of the case,” Beckman said. “Frances had never committed a crime and had no history of any mental health or behavioral issues. But the prosecution portrayed her as an emotionless, manipulative schemer capable of murdering her parents by arson. They dehumanized her and sold their anti-Asian stereotype to the jury.”
Today, Frances has a job and lives with relatives. Her parents and seventeen years of her life were both wrongfully, inexcusably, taken from her, yet her focus remains on what is still to come. “My greatest challenge is coming out here and my parents not being out here,” she said at a recent BCIP event. “That was the hardest thing for me. Everything out here reminds me of them. But with my family’s support and with my friends’, I try to stay strong and I try to live my life in honoring them, and to be positive and to be the best that I can be because I know that’s what they want from me.”