Frederick Clay had been in prison for murder since 1979 when, by happenstance, his case came to the attention of CPCS Innocence Program Director Lisa Kavanaugh. A minister who was a friend of Lisa’s family had met Fred through prison work in the late 90’s, had maintained a relationship with him and asked Lisa if her program might take his case. She sent him an application; the year was 2012.
The murder case against Fred had relied on 2 eye witness identifications. Fred had been represented by skilled and respected appointed counsel at trial and on direct appeal, who vigorously pursued the then-novel issue of the hypnosis of 1 of the 2 witnesses. The appeal went all the way to the 1st Circuit, but to no avail– Fred’s conviction was affirmed based on the “corroborating” testimony of the 2d witness, who had not been hypnotized.
Little was known about that 2d eye witness at the time of the trial. Trial counsel had successfully moved to compel the prosecution to produce him for interviewing, but he had refused to talk. Neither side had obtained records about him, so Lisa began to dig.
Lisa’s first public records request to the Boston police produced a 2 page report. Her 2d request (after the DA’s office declined to provide records) produced 57 pages of reports a year later. However these reports were redacted so that the identity of the people interviewed in the original investigation was hidden.
Changing her approach, Lisa filed a motion for DNA testing under G.L.278A, with accompanying discovery motions. Through that discovery process, not available under Rule 30, Lisa obtained school records showing that the only unhypnotized ID witness had been intellectually disabled, and thus highly susceptible to the suggestive ID procedures which had been used by the police. That discovery also produced unredacted police interview reports revealing an uninvestigated 3d party suspect. With the help of investigator Rob Selevitch and associate Jeff Harris, Lisa investigated that suspect, locating witnesses (some out of state) who supported the 3d party defense. After over a year investigating the 3d party suspect’s criminal history, including threatening to sue the Boston police to get relevant incident reports, Lisa had the records to show that this suspect’s many crimes were just like the crime blamed on Fred. Armed with this newly discovered evidence, Lisa was able to persuade today’s prosecutors that justice had not been done.
This was a case that looked on the surface like it was over. Good lawyers had gone above and beyond the usual appeals. Counsel had been assigned for parole and parole was in sight. But the client’s constant claim of innocence called for deeper fact investigation than had ever yet been done, and a lawyer who recognized that turning over every stone—assisted by a skilled investigator– was what the case required. Only then could the nightmare that befell Fred Clay be truly over.