Bbo Complaint Against Mark Lee - 11-3-22 Final

AMY M.
BELGER
ATTORNEY AT LAW
2125 Washington Street, Holliston, MA 01746
508-893-6031
appellatedefender@gmail.com
November 3, 2022
Office of the Bar Counsel
99 High Street
2nd Floor
Boston, Massachusetts 02110
Dear Bar Counsel,
Enclosed please find a COMPLAINT submitted in accordance with the
instructions on your website, and as directed by your Rule of Professional
Conduct 8.3: Reporting Professional Misconduct, as it applies to me.
Thank you for your attention to this matter.
Very truly yours,
Amy M. Belger
cc: Assistant District Attorney Spencer Lord (via electronic mail)

FORM BB0-1
Page Two
ADD ADDITIONAL SHEETS IF NEEDED.
STATEMENT
OF FACTS
Please do not write above this line and write only on the front of this and any other
pages you attach.
Please fill in the following, if applicable:

Court case name: Commonwealth of Massachusetts vs. Robert Foxworth;
see also Robert Foxworth v. Commonwealth of Massachusetts
Name of Court: Suffolk Superior Court docket 9184CR97923; see also 2184CV00136
Statement of Facts:
Attorney Mark Tan Lee violated Rules of Professional Conduct 8.4 and 3.8.
Please see the attached Statement of Facts in support of this Complaint.
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Complaint against Assistant District Attorney MARK LEE
Statement of Facts
1) Attorney MARK LEE violated Rule of Professional Conduct 8.4.
Pursuant to Rule 8.4, it is professional misconduct for a lawyer to engage in

conduct under subsection (c) involving misrepresentation, and under subsection
(d) that is prejudicial to the administration of justice.
MARK LEE violated both subsections.
As to subsection (c), in 2013, MARK LEE misrepresented to Boston Homicide Detective

John Cronin whether he was directly provided with exculpatory evidence indicating Robert
D. Foxworth was innocent of the 1991 murder of Kenneth McLean. Robert Foxworth was
convicted by jury in 1992 and sentenced to serve life in prison. MARK LEE told Detective
Cronin that he had received no information indicating Robert Foxworth was innocent.
MARK LEE’s representation to Detective Cronin was false, as set forth in the documents
accompanying this Complaint. Please see Addendum, Exhibits 2B, 2D, and 3A.
As to subsection (d), MARK LEE engaged in conduct that was prejudicial to the
administration of justice by refusing to address or respond to inquiries into Robert
Foxworth’s actual innocence brought directly to him, face-to-face, by Attorney John
M. Thompson in 2012, under circumstances where there is a clear record that MARK
LEE learned as early as 2007 that such evidence in fact existed. MARK LEE
participated in a federal debriefing with an informant who told MARK LEE directly that
Robert Foxworth was innocent of the murder that Robert Foxworth was wrongfully
incarcerated for committing for almost 30 years. As an offer of proof as to how this federal
informant knew that Robert Foxworth was innocent, the informant told MARK LEE that
the informant knew Robert Foxworth was not involved in the murder of Kenneth McLean
because the informant was involved in the murder of Kenneth McLean. MARK LEE’s
misconduct delayed, for nearly nine years, the administration of justice that led to
Robert Foxworth’s release from prison in 2020 and his subsequent exoneration in
2021. Please see Addendum, Exhibits 2B and 2D.
As discussed under Comment 2 to Rule 8.4, the misconduct committed by MARK LEE fits
within the category of offenses that are of “moral turpitude” in that MARK LEE’s
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misconduct fits the definition set forth in the Comment of an offense involving “a serious
interference with the administration of justice.” Please see Addendum, Exhibits 2B,
2D, 3A, 3C, 3E, 3F, 3G and 4B.
MARK LEE has caused unfathomable harm to Robert Foxworth as a result of MARK LEE’s
serious interference with the administration of justice. Robert Foxworth has submitted an
affidavit for your consideration as you adjudicate this Complaint in an attempt to convey to
you the magnitude of pain and suffering that has been inflicted upon him as a result of
MARK LEE’s violations of the Rules of Professional Responsibility delineated in this
Complaint. Please see Addendum, Exhibit 5.
To further understand the background facts that led to Robert Foxworth’s wrongful
conviction, please listen to Episode 263 of the Wrongful Conviction podcast entitled “Jason
Flom with Robert Foxworth” https://podcasts.apple.com/dk/podcast/263-
jason-flom-with-robert-foxworth/id1151670380?i=1000563939045.
To further understand the suffering endured by Robert Foxworth as an innocent man sent to
prison for close to thirty years, please listen to
“Robert Foxworth Exoneration #2738” https://www.youtube.com/watch?v=d6ZRW6SJvDc
2) Attorney MARK LEE violated Rule of Professional Conduct 3.8.
Pursuant to Rule 3.8 (d), a prosecutor in a criminal case shall make timely disclosure to
the defense of all evidence or information known to the prosecutor that tends to negate the
guilt of the accused. Pursuant to Rule 3.8 (i) (1) and (2), when a prosecutor learns of new,
credible and material evidence pointing to a reasonable likelihood that a convicted defendant
did not commit an offense, within a reasonable time, the prosecutor is obligated to
disclose that evidence to the appropriate court and to the defendant.
MARK LEE was obligated to make timely disclosure of the information that came to his
attention in 2007 that tended to negate Robert Foxworth’s guilt in connection with the
murder of Kenneth McLean to the court and to the defendant. Following the federal
debriefing where MARK LEE was directly told by the federal informant of Robert Foxworth’s
innocence, MARK LEE did recognize and acknowledge the exculpatory nature of the
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information entrusted to him. He ordered Robert Foxworth’s file from the archives of
Suffolk County District Attorney’s Office and he notified others within his office that an
investigation was necessary. MARK LEE did not, however, notify the appropriate
court or the defendant. Please see Addendum, Exhibits 2B, 2D, 3A, 3B and 3C.
MARK LEE’s first clear violation of Rule 3.8 (d) was when, in 2012, Attorney John M.
Thompson sat down with MARK LEE face-to-face and asked MARK LEE to disclose all
exculpatory information that existed from the 2007 federal debriefing that MARK LEE
participated in. Despite MARK LEE’s assurances to John Thompson that he would do so,
MARK LEE never did do so. In fact, MARK LEE did the exact opposite of what this Rule
requires. As the documents submitted along with this Complaint reflect, MARK LEE
delayed, obstructed and interfered with my efforts and Attorney Thompson’s
efforts from 2012 – 2020 to obtain the exculpatory evidence that was within his
knowledge and possession for at least eight years. Please see Addendum, Exhibits
2B, 2D, and 3A.
MARK LEE’s second clear violation of Rule 3.8 (d) was when, five months after his
2012 sit-down meeting with Attorney John Thompson, in 2013, Boston Police
Homicide Detective John Cronin asked MARK LEE, on behalf of John Thompson, whether,
during the 2007 federal debriefing session that MARK LEE participated in, MARK LEE
received any information that suggested that Robert Foxworth was not involved in the
murder of McLean. MARK LEE falsely told Detective Cronin that he did not receive
any such information. Please see Addendum, Exhibits 2B, 2D, and 3A.
MARK LEE’s third clear violation of Rule 3.8 was a violation of subsection (i) (1)
and (2) when, from 2007 - 2018, MARK LEE failed to disclose this exculpatory
evidence of Robert Foxworth’s innocence to the appropriate court. The exculpatory
evidence of Robert Foxworth’s innocence that MARK LEE possessed at least as early as 2007
was never disclosed voluntarily by MARK LEE or the Suffolk County District Attorney’s
Office. It was obtained by counsel for Foxworth only by a court order that forced its
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production.1 MARK LEE’s misconduct is a direct cause of at least the last nearly nine
years of Robert Foxworth’s almost thirty years of wrongful incarceration, and
arguably more than just those last nine years. Please see Addendum, Exhibits 3C,
3E, 3F, 3G, and 4A.
As discussed under Comment 1 to Rule 3.8, MARK LEE has a responsibility and a specific
obligation as a minister of justice to prevent and rectify the wrongful conviction and the
wrongful incarceration of innocent persons such as Robert Foxworth. Robert Foxworth has
been declared innocent and has been unequivocally exonerated. His innocence has
been acknowledged by the Suffolk County District Attorney’s Office in writing, as reflected
in the documentary evidence submitted with this Complaint. Please see Addendum,
Exhibits 1A-G.
At no point did MARK LEE ever abide by his obligations under this Rule. Comment 1
indicates that MARK LEE’s complete and utter disregard for the rights of Robert Foxworth
could constitute a violation of Rule 8.4 of the Rules of Professional Conduct. Such
violation is alleged under Count 1 of this Complaint.
Counsel’s Compliance with Rule of Professional Conduct 8.3.
Pursuant to Rule 8.3 (a), a lawyer who knows that another lawyer has committed a violation
of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty,
trustworthiness or fitness as a lawyer in other respects, shall inform the Bar Counsel’s office of the
Board of Bar Overseers. Comment 3[A] to this Rule indicates that “in most situations, a lawyer
may defer making a report under this Rule until the matter has been concluded, but the report
should be made as soon as practicable thereafter.”
1I note that the Suffolk County District Attorney’s Office did not produce Detective John
Cronin’s 2013 report until November 18, 2020. The report, which constitutes withheld
evidence of MARK LEE’s wrongdoing, was not available to me in 2018 at the time of this
hearing. If I had the report, I would have been in a position to challenge MARK LEE’s false
representation on page 19 to Judge Christine Roach, who found him credible at
the time, that “if there is a possibility that Mr. Foxworth is innocent, I certainly
don’t want to be the person to stand in the way of getting to the bottom of it.”
Please see Addendum, Exhibit 3C.
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I deferred making this report under this Rule until all matters that I, and my co-counsel,
needed to litigate for Robert Foxworth were litigated and settled. The timetable for resolution of
those matters was as follows:
• On January 13, 2021, Robert Foxworth’s conviction was vacated by superior

court judge Robert L. Ullman. The Commonwealth immediately thereafter
filed a nolle prosequi to end the criminal case. Please see Addendum,
Exhibits 1A and 1B.
• On January 20, 2021, I, along with John Thompson, filed a claim pursuant to
G.L. c. 258D against the Commonwealth of Massachusetts for the maximum
monetary amount of compensation and other forms of compensation for the
erroneous felony conviction of Robert Foxworth. Please see Addendum,
Exhibit 1G.
• On October 28, 2021, superior court judge Janet L. Sanders endorsed the
assented-to motions for relief presented by the Parties that entitled Robert
Foxworth to the maximum monetary amount of compensation available by
statute and other forms of compensation for the erroneous felony conviction of
Robert Foxworth by the Commonwealth. Please see Addendum, Exhibit 1G.
• On November 18, 2021, a Stipulation of Dismissal was filed with the superior
court by the Attorney General of Massachusetts to end the civil damages case
against the Commonwealth. Please see Addendum, Exhibit 1G.
• On January 5, 2022, I, along with co-counsel, commenced discussions with

Counsel for the City of Boston relative to claims Robert Foxworth had against
the City of Boston. We took the position that Robert Foxworth’s claims
pursuant to M.G.L. c. 258 and 42 U.S.C. §§ 1983 and 1988 for remedial
compensation were ripe for consideration of settlement without further
litigation.
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• On September 27, 2022, Robert Foxworth executed a Settlement Agreement
with the City of Boston.
• On October 24, 2022, the City of Boston issued a settlement check to counsel
for Foxworth pursuant to the Settlement Agreement.
• On October 24, 2022, I began work on this Complaint.
• It is my position that my report to has been made as soon as was practicable

following the conclusion of litigation of all matters for Robert Foxworth.
• Throughout the pendency of litigation, I have made my co-counsel for Robert

Foxworth with identical reporting obligations aware of my intent to report this
information as required by this Rule.
• In an addendum document submitted with this Complaint, I have set forth the
timeline of Notice that I have provided to the Suffolk County District
Attorney’s Office regarding the misconduct engaged in by MARK LEE.
Please see Addendum, Exhibit 4B.
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BBO COMPLAINT BROUGHT AGAINST ATTORNEY MARK TAN LEE
MASTER INDEX TO ADDENDUM OF DOCUMENTS
Exhibit 1: DOCUMENTS RELATED TO THE EXONERATION OF ROBERT

FOXWORTH
• Exhibit 1A
Memorandum of Decision and Order on Assented-To Motion for New Trial
• Exhibit 1B
Commonwealth’s Nolle Prosequi
• Exhibit 1C
Assented-to Motion for Expungement of Criminal Record by Plaintiff
Robert Foxworth
• Exhibit 1D
Letter from Suffolk County District Attorney Rachael Rollins verifying
Robert Foxworth’s actual innocence, apologizing and accepting
responsibility on behalf of the Suffolk County District Attorney’s Office
for the wrongful conviction and wrongful incarceration of Robert
Foxworth, and acknowledging that this conviction of an innocent man
involved grave misconduct
• Exhibit 1E
National Registry of Exonerations: Official Record of the Exoneration of
Robert Foxworth
• Exhibit 1F
Superior Court Docket Sheet – Criminal Case 9184CR97923
• Exhibit 1G
Superior Court Docket Sheet – Civil Damages Case 2184CV00136
Exhibit 2: TIMELINE DOCUMENTS RELATED TO THE POSSESSION OF

EVIDENCE BY MARK LEE REGARDING THE ACTUAL
INNOCENCE OF ROBERT FOXWORTH
• Exhibit 2A
12/15/06 fax from AUSA Neil Gallagher to ADA MARK LEE – first
communication to MARK LEE about the informant – 12/15/06
handwritten notes taken by MARK LEE of a conversation he had with
Neil Gallagher. MARK LEE was told by Gallagher that the informant
had information about the murder of Kenneth McLean (spelling is
wrong – written as “’93 McLaughlin murder (Ronnie Christian)”
Christian was one of Robert Foxworth’s trial co-defendants.
• Exhibit 2B
3/7/07 BPD Homicide Detective Dennis Harris report of proffer session
reflecting MARK LEE was in the room when the informant explained
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how he knew Robert Foxworth was innocent of the murder of Kenneth
McLean. Informant said he had already shared this information with
federal prosecutors “years earlier.” Informant was told police and
prosecutors that they would be in touch with informant’s attorney when
appropriate.
• Exhibit 2C – corroborative of Exhibit 2B

6/29/93 letter from AUSA Thomas Frongillo to ADA R. John
Cinquegrana containing the information referred to by the informant as
provided “years earlier” to law enforcement. The informant, referred to
herein as CI-1, stated that he was at the meeting where the murder of
Kenneth McLain was planned, and Robert Foxworth was not at the
meeting. The informant provided an admission made to him by the
shooter in the McLean murder.
• Exhibit 2D- Affidavit of John M. Thompson dated 4/12/17

John Thompson wrote to MARK LEE on 7/2/12 requesting a meeting to
discuss the informant’s disclosures to MARK LEE of Robert Foxworth’s
actual innocence. A face-to-face meeting took place on 9/20/12 during
which MARK LEE confirmed that he met with the informant in person
during the 3/7/07 federal proffer session and MARK LEE confirmed
that either Detective Dennis Harris or another detective took notes.
MARK LEE agreed, on 9/20/12, to check with the detectives for their
notes and any write-up regarding the parts of the debriefing that
pertained to the McLean murder. On 9/21/12, John Thompson provided
MARK LEE with a follow up letter documenting and explaining his
belief in Robert Foxworth’s innocence and asking MARK LEE for help
in gaining access to the exculpatory information possessed by the federal
prosecutors as referred to in Exhibit 2C. On 11/19/12, John Thompson
called MARK LEE in follow up, did not reach him, and MARK LEE did
not return the call. On 2/19/13, John Thompson wrote to MARK LEE
asking MARK LEE to let him know what he learned about that 1993
debriefing detailed in Exhibit 2C. MARK LEE did not respond. On
6/13/13 John Thompson wrote to MARK LEE again asking for
information on this case. MARK LEE did not respond.
Exhibit 3: ADDITIONAL DOCUMENTS THAT SUPPORT THE

ALLEGATIONS OF MISCONDUCT COMPLAINED OF HEREIN
• Exhibit 3A- Report of Detective John Cronin

BPD Detective John Cronin reports that he received a letter from the
informant, Husie Joyner, who is C-I referred to in Exhibit 2C and is the
same informant that MARK LEE met with on 3/7/07. The informant
told Detective Cronin that he had information about the murder of
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Kenneth McLean and that his attorney was Peter Elikann. Detective
Cronin contacted Peter Elikann who referred Detective Cronin to John
Thompson. John Thompson, in turn, referred Detective Cronin to
MARK LEE and told Detective Cronin that he believed there was
evidence that could clear Robert Foxworth. Detective Cronin reports
that when he spoke to MARK LEE on 2/21/13, a mere five months after
MARK LEE’s sit-down meeting with John Thompson, detailed in John
Thompson’s affidavit at Exhibit 2D, during which John Thompson
explained what evidence of Robert Foxworth’s innocence he thought
existed from the proffer session MARK LEE attended on 3/7/07. MARK
LEE told Detective Cronin that the informant was debriefed,
and that the informant did not have relevant information
regarding the murder of Kenneth McLean.
• Exhibit 3B- Affidavit of John M. Thompson dated 9/26/18

On September 25, 2018, for the very first time, MARK LEE told John
Thompson that during the 3/7/07 federal debriefing that MARK LEE
attended with the informant, the informant volunteered at the end of
that meeting that Robert Foxworth had not been involved in the murder
of Kenneth McLean. Also, for the first time, MARK LEE told John
Thompson that Detective Harris had written a report of that debriefing
that had not yet been produced but was in the possession of the Suffolk
County District Attorney’s Office. MARK LEE promised to produce it
no later than September 27, 2018.
• Exhibit 3C- Transcript of Status Hearing Held 9/27/18

On September 27, 2018 a status hearing was held in the criminal case
against Robert Foxworth. John Thompson was not in attendance. I
represented Robert Foxworth at the status hearing. MARK LEE
initially told Judge Christine Roach that AUSA Neil Gallagher told him
that the only written report that Robert Foxworth was not a participant
in the murder of Kenneth McLean was the 1993 report which can be
found at Exhibit 2A. At the time MARK LEE made this
representation to the court, he was in possession of the Dennis
Harris report which can be found at Exhibit 2B which
exculpates Robert Foxworth. MARK LEE later admitted that he
was told in 2007 that Robert Foxworth did not commit this crime and he
appreciated that in 2007 that he had just received information that an
innocent man (Robert Foxworth) was in jail. He notified people in his
office and then was contacted about this in 2012 by John Thompson.
MARK LEE told John Thompson on the phone, as is described in
Exhibit 3B, that MARK LEE had received information from the
informant that Robert Foxworth was innocent. MARK LEE said he
would turn over the Dennis Harris report, which can be found at
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Exhibit 2B, by the end of the day. He did do that. Notwithstanding
all of the above, on 2/21/13, MARK LEE told Detective Cronin
that the informant was debriefed, and that the informant did not
have relevant information regarding the murder of Kenneth
McLean. This misrepresentation alone delayed the exoneration
of Robert Foxworth for almost nine years.
• Exhibit 3D – Affidavit from the Confidential Informant dated

10/23/18
On October 23, 2018, I met with the confidential informant, Husie
Joyner, who provided me with an affidavit stating that he had
reviewed Exhibits 2A, 2B and 2C and he was willing to testify at an
evidentiary hearing and give evidence of his first-hand knowledge
of Robert Foxworth’s innocence in the murder of Kenneth McLean
if he were granted immunity in connection with his own
involvement in the murder of Kenneth McLean. From 1993 – 2020,
the informant was willing and available to provide evidence of
Foxworth’s innocence. From 2007 onward, MARK LEE had
knowledge of this evidence of Robert Foxworth’s innocence, and from
2012 – 2020 he was repeatedly and aggressively pressed by counsel
for Foxworth to collect, acknowledge, and timely produce the
evidence he possessed of Robert Foxworth’s innocence. MARK LEE
never voluntarily did so, despite admitting he possessed this evidence.
He refused to produce to John Thompson what he promised to produce
in 2012. He then affirmatively obstructed the administration of justice
in 2013 when directly questioned by Detective Cronin about the
existence of evidence of Robert Foxworth’s innocence. He falsely
claimed to Detective Cronin that no such evidence existed, despite
his acknowledgment to John Thompson a mere five months earlier
that he would seek the evidence that did exist in the form of
detective notes that he never obtained. It was only in 2018, pursuant to
a court order that issued for post-conviction discovery pursuant to Mass.
Rule Crim. Pro. 30(c), that this evidence was obtained.
• Exhibit 3E- Order of Judge Christine Roach Asking Why the

Commonwealth Has Still Failed to Meet Its Discovery
Obligations dated 1/15/19
In this order, the judge orders the Commonwealth to do three things:
The Commonwealth is to file a DETAILED explanation as to (1) why the
events detailed and ordered in the hearing on 11/19/18 have not
occurred; (2) the Commonwealth's plan for accomplishing the ordered
work, with precise dates; and (3) the earliest date on which the
Commonwealth will be prepared to address the court on next steps.
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• Exhibit 3F – MARK LEE’s Explanation to the Court dated 1/22/19
This explanation complies with only #1 of 3 orders issued by Judge
Christine Roach
• Exhibit 3G – Email Correspondence to MARK LEE dated 1/25/19

This email correspondence from John Thompson to MARK LEE is a
follow-up to Exhibits #E and #F asking whether MARK LEE plans to
comply with the portion Judge Christine Roach’s court order directing
the Commonwealth to address: (2) the Commonwealth's plan for
accomplishing the ordered work, with precise dates; and (3) the earliest
date on which the Commonwealth will be prepared to address the court
on next steps.
o I note that John Thompson’s reference to a chuckle was sarcasm
but was not taken as such by MARK LEE
Exhibit 4: DOCUMENTS RELATED TO NOTICE GIVEN TO THE SUFFOLK

COUNTY DISTRICT ATTORNEY’S OFFICE OF MARK LEE’S
MISCONDUCT
• Exhibit 4A – Motion for Post-Conviction Discovery dated 4/18/17

This is the first time (but not the only time) I accused MARK LEE of
professional misconduct in a publicly filed court document or
proceeding, putting the court and the Suffolk County District Attorney’s
Office on notice of MARK LEE’s withholding of exculpatory evidence.
• Exhibit 4B - Timeline of Notice and Disclosure of Withholding

of Exculpatory Evidence
• Exhibit 4C – Affidavit of Amy M. Belger dated 10/6/17

This affidavit references the assistance provided to me by ADA Spencer
Lord when he was Deputy General Counsel of the Parole Board (as
indicated on the Exhibit 4B timeline) in obtaining exculpatory evidence
relative to the innocence claims and eventual exoneration of Robert
Foxworth.
Exhibit 5: THE IMPACT OF MARK LEE’S MISCONDUCT ON THE LIFE

AND LIBERTY OF ROBERT FOXWORTH
Statement of Robert Foxworth
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EXHIBIT 1
Exhibit 1: DOCUMENTS RELATED TO THE EXONERATION OF ROBERT

FOXWORTH
• Exhibit 1A
Memorandum of Decision and Order on Assented-To Motion for New Trial
• Exhibit 1B
Commonwealth’s Nolle Prosequi
• Exhibit 1C
Assented-to Motion for Expungement of Criminal Record by Plaintiff
Robert Foxworth
• Exhibit 1D
Letter from Suffolk County District Attorney Rachael Rollins verifying
Robert Foxworth’s actual innocence, apologizing and accepting
responsibility on behalf of the Suffolk County District Attorney’s Office
for the wrongful conviction and wrongful incarceration of Robert
Foxworth, and acknowledging that this conviction of an innocent man
involved grave misconduct
• Exhibit 1E
National Registry of Exonerations: Official Record of the Exoneration of
Robert Foxworth
• Exhibit 1F
Superior Court Docket Sheet – Criminal Case 9184CR97923
• Exhibit 1G
Superior Court Docket Sheet – Civil Damages Case 2184CV00136
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EXHIBIT 1A
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16
17
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19
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EXHIBIT 1B
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COMMONWEALTH OF MASSACHUSETTS
Trial Court Department
SUFFOLK, ss Docket No. 9184CR097923

Criminal Division
v.
ROBERT FOXWORTH,
Defendant
COMMONWEALTH'S NOLLE PROSEQUI
Today, the Commonwealth filed a response in the above-captioned matter assenting to the
defendant’s motion for new trial. Given the Court’s order granting the motion, the
Commonwealth enters a nolle prosequi as to the charge. See Mass. R. Crim. P. 16 (a), 378 Mass.
885 (1979). Upon review of the evidence, including that advanced by the defendant in his
motion and that gathered by the Commonwealth after receiving the motion, and after extensive
investigation and scrutiny by this office’s Integrity Review Bureau, the Commonwealth has
concluded that the interests of justice would not be served by the prosecution of this case,
because there is no credible evidence that would support the defendant’s conviction.
Respectfully submitted
For The Commonwealth,
RACHAEL ROLLINS
DISTRICT ATTORNEY
/s/ Dara Z. Kesselheim

____________________________
Dara Z. Kesselheim
Deputy Chief, Integrity Review Bureau
Assistant District Attorney
BBO# 660256
One Bulfinch Place
Boston, MA 02114
dara.kesselheim@state.ma.us
January 13, 2021 (617) 619-4074
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EXHIBIT 1C
23
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ASSENTED-TOMOTIONFOREXPUNGEMENTOFCRIMINALRECORDS. " H O
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BY PLAINTIFF ROBERT FOXWORTH
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Pursuant to G.L.c. 258D, §7, Plaintiif Robert Foxworth, with the assent of th^'
Commonwealth, hereby moves for an order to effectuate the terms of asettlement that has been
reached by the parties in connection with this action arising under Chapter 258D. Plaintiff
.quests that the Court enter an order expunging Plaintiffs underlying criminal offender records
Wfollows:
1. The criminal offender records of the plaintiff Robert D. Foxworth, shall be expunged
in accordance with the terms of G.L.c. 258D, §7for the case identified as Commonwealth v.
Robert Foxworth. Suffolk Superior Court No. 9184CR097923 (original docket no. 097923), and
Roxbury District Court No. 9102CR5977. Such records as maintained by the Department of
Criminal Justice Information Services and the Probation Department, including dociunents and
other materials and any biological samples or other materials obtained from Robert Foxworth
shall be expunged.
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EXHIBIT 1D
25
26
EXHIBIT 1E
27
9/16/21, 10:30 AM Robert Foxworth - National Registry of Exonerations
Support The National Registry of Exonerations — Donate Now
A PR O J E CT O F TH E U NIVE R S ITY O F CA L IF O R NIA IR VINE NE W KIR K CE NTE R F O R S CIE NCE & S O CIE TY,
U NIVE R S ITY O F MICH IG A N L A W S CH O O L & MICH IG A N S TA TE U NIVE R S ITY CO L L E G E O F L A W
2,858 EXONERATIONS SINCE 1989

MORE THAN 25,600 YEARS LOST
BROWSE CASES ISSUES RESOURCES ABOUT US MAKE A GIFT

State: Massachusetts
ROBERT FOXWORTH
County: Suffolk
Other Suffolk County, Massachusetts Exonerations
Most Serious Murder
In the early evening of May 23, 1991, eight-year- Crime:
old Antoinette McLean let several men into the
apartment where she and her family lived in the Additional
Roxbury section of Boston, Massachusetts. Convictions:
The men grabbed her father, Kenneth McLean, Reported 1991

removed his clothing except a sweatshirt, and then Crime Date:
tried to bind him with duct tape. At about 7:45
p.m., McLean broke free and ran downstairs, with Convicted: 1992
two men in pursuit. They chased him into the
street, and one of them fatally shot McLean. Exonerated: 2021
The Boston police quickly put out an all-points bulletin for the men, stating Sentence: Life
they were looking for three Black men: “One black operating, dark skinned,
no further description. Number two: black male, 6 foot 1, 6 foot to 6'1"; 140 Race/Ethnicity: Black
pounds; about 25 years. He’s got medium curly hair with long curl down the
center of his hair down the nape of his neck. He’s wearing a red sweatshirt, a Sex: Male
red shirt, blue jeans. He’s the one that fired the shots ... They’re in a red
Toyota or red Ford Escort, four doors, being operated by a dark skinned Age at the 23
black male.” date of
reported
The descriptions came from two teenage boys, Derek Hobson and Anthony crime:
McAfee, who had been walking down the street on the way to nearby
basketball courts when the shooting happened. They told the police that Contributing Mistaken Witness
they hadn’t seen the faces of any of the men. Both boys were friends of Factors: ID, Perjury or
McLean’s; Hobson, who was then 15 years old, considered him like “an False Accusation,
uncle.” Official
Misconduct
Separately, Detective Thomas Gomperts had received a tip from a
confidential informant that four men – Robert Foxworth, Ronnie Christian, Did DNA No
Steven Sealy and Hussie Joyner – might have been involved in the shooting. evidence
contribute to
Based on this information, Gomperts put together a photo array to show the
Hobson on June 17, 1991, during an interview at the home of one of exoneration?:
McLean’s relatives. Hobson said that the 23-year-old Foxworth, the only
person in the array who had a long strand of hair, was the shooter. He made
a second identification of Foxworth on June 28, 1991, from a different photo
array.
Foxworth was the only person from the first array in the second array, and
again, he was the only person with a long strand of hair. Police arrested
Foxworth on July 11, 1991, and charged him with first-degree murder.
Separately, a man named Troy Logan was arrested on September 11, 1991,
and Christian was also later arrested.
After Logan’s arrest, the state filed a continuance to delay Foxworth’s trial
because it wanted to try the three men together.
The police said that Logan identified Foxworth from a photo array and then
gave a statement to the police. In the statement, he said he had gone with
28
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Foxworth and another man to McLean’s apartment to buy cocaine, and that
Foxworth and McLean had argued because Foxworth thought McLean had
previously sold him some bad cocaine. Logan said he left the apartment
when the fight started, but he saw Foxworth leave and then go back inside
with a gun. Logan said he heard the shots but didn’t see the shooting.
Foxworth hired a well-regarded Boston attorney, Willie Davis, to represent

him. William White was appointed to represent Logan. In the fall of 1991,
White joined Davis’s law firm, creating a potential conflict of interest. On
November 14, 1991, a judge said the solution was for Foxworth to get a new
attorney, and he ordered Davis to withdraw as Foxworth’s attorney.
Foxworth hired Earl Howard as his new attorney as the case proceeded to
trial.
Hobson was the state’s key witness, and he was reluctant to testify. Prior to
the start of the trial in Suffolk Superior Court, Foxworth moved to suppress
Hobson’s identification.
In a proceeding related to this hearing that took place without Howard or

Foxworth present, Assistant District Attorney James Larkin told the judge
that Hobson was essential; the judge offered to hold Hobson in jail as a
material witness. Hobson, now 16 years old, said he wanted to be home with
his young daughter, and the judge relented, telling him to find another place
to stay because he had reason to fear for his safety.
“In this improper proceeding,” Foxworth’s appellate attorneys would later

note, “ADA Larkin, Det. [Daniel] Flynn and the judge made themselves
Hobson’s protectors from Foxworth’s purported threats.” The motion to
suppress was denied.
Separately, two days before the trial was to begin, prosecutors moved to
sever the cases, asking to try Logan separate from Foxworth and Christian.
Christian’s attorney objected, noting that because Logan’s statement didn’t
mention his client, it was crucial to his defense. The judge denied the
motion and ruled the men would stand trial together on May 25, 1992.
Prosecutors planned to introduce Logan’s statement in their case against

him, but his statement also said Foxworth was the shooter. Because Logan
wasn’t testifying, there was no way for Foxworth’s attorney to cross-examine
Logan about what he told the police. The judge’s remedy was to redact the
statement, replacing Foxworth’s name in every instance with “Mr. X.”
(Foxworth’s attorneys said Foxworth didn’t know Logan or McLean.)
While Hobson had picked Foxworth out of two photo arrays, he had never
actually described him to police, failing to mention, for example, that
Foxworth had noticeable protruding teeth. He also testified that he had
based his selection in the photo arrays on the fact that that the man he saw
shoot McLean had a “tail,” and Foxworth’s photo was the only one with a
similar feature. Under questioning, Hobson’s identification ebbed and
flowed. He said he had not seen the shooter’s face, only his back. Then he
said he also got a side view, which allowed him to identify Foxworth. Finally,
he backtracked, telling the defense on cross-examination that he was only
“80 percent sure” in his identification.
McAfee testified that he had seen Logan hand a black object to the man who
shot McLean.
Logan did not testify, but jurors heard his redacted statement that said “Mr.
X” was the shooter. Foxworth’s appellate attorneys would later write: “With
knowledge of the redaction, it was child’s play for the jury to identify the
petitioner as ‘Mr. X.’ There were only three defendants – Logan, Christian,
and the petitioner – and no other suspects. Logan, as the author of the
statement, could not have been ‘Mr. X.’ Flynn’s testimony unambiguously
eliminated Christian from consideration. That left the petitioner.”
Foxworth had several friends and family members testify that he was
elsewhere at the time of the shooting. But on March 31, 1992, the jury
convicted him of second-degree murder, and he received a sentence of life
in prison. Logan was acquitted. Christian received a directed verdict of not
guilty after the state closed its case.
29
Foxworth began a series of appeals through the Massachusetts and the

federal courts that culminated in a 2003 petition for a writ of habeas corpus
in U.S. District Court for Massachusetts.
Central to the argument in his petition was a change in federal law, based on
the 1998 Supreme Court ruling in Gray v. Maryland, that said that in a joined
trial using redactions and replacements in the statements given by co-
defendants could still violate the other defendant’s constitutional right to
confront his accuser. The simple word replacement allowed in Logan’s
statement was too clumsy and obvious, Foxworth’s attorneys argued.
Judge Rya Zobel granted Foxworth’s petition on August 17, 2006. She wrote
that Logan’s statement, even with the redactions, were “given by a co-
defendant with powerful motive to incriminate petitioner, and unchallenged
by cross-examination, violated petitioner’s Sixth Amendment rights.”
The state appealed the ruling, arguing that these protections didn’t apply in
Foxworth’s case, because his conviction was final in 1996, before the
Supreme Court’s Gray ruling. And despite Zobel’s order requiring the state
to either retry Foxworth within 60 days or release him from custody,
Massachusetts officials appeared to drag their feet. Foxworth was finally
released from prison on March 13, 2008. His attorneys noted that prison
officials had refused to release him to attend the funeral of his son, who was
killed on September 30, 2006.
As Foxworth’s attorneys worked through these appeals, they also uncovered

new evidence of innocence. In 1993, an assistant federal prosecutor in
Boston sent the Suffolk County District Attorney information from two
confidential informants about the McLean murder. The informants said the
shooting was part of a larger struggle among cocaine dealers. The
informants said that an associate of McLean’s had shot Christian a few
months earlier in retaliation for Christian robbing McLean. They said that a
man known as “T-Lover” had shot and killed McLean. Foxworth’s name was
never mentioned in that report.
McAfee had recanted his testimony of Logan in 2000, and Hobson recanted
his identification of Foxworth in 2008, while the habeas petition was under
appeal by the state. Hobson said in his statement that the DA’s office and
police pressured him to falsely say he had seen the face of the shooter. “I
could recognize Robert Foxworth only because I remembered that the
police had shown me two sets of photographs in the summer after the
murder, and his photograph was included in each set. In each set, he was the
only person who had a ‘tail’ at the back of his neck.”
Hobson said that after a break in the trial, he changed his testimony to say
that he had seen the side of the shooter’s face. During the break, he said,
Larkin had told him that “if I did not testify to that, he would have me
locked up with the three defendants.”
On June 29, 2009, the U.S. Court of Appeals for the First Circuit said the
Massachusetts courts were the proper forum for determining when
Foxworth’s conviction had become final. On July 10, 2010, the Supreme
Judicial Court of Massachusetts said the conviction had become final in
1996, denying Foxworth the relief he would have found under the Gray
ruling. Foxworth returned to prison.
Foxworth and his legal team – Linda Thompson, John Thompson and Amy
Belger – continued to pursue his claims of innocence, and they filed a series
of motions and public-records requests allowing further examination of the
case files of the Boston Police Department.
The documents included a 2006 interview with one of the 1993 confidential
informants, who was now cooperating with state and federal prosecutors on
other charges. Joyner, one of the men named in the initial tip to Gomperts,
was actually one of the 1993 informants. He said that he was present at the
murder, and Foxworth wasn’t there. McLean was either shot by Logan or T-
Lover, Joyner said. Prosecutors took no action based on this statement.
Separately, the police department eventually turned over two documents

30
from the early days of the investigation. On June 18, 1991, an officer received
a message from Troy Logan’s father-in-law stating that he believed Logan
was involved with McLean’s death. The officer relayed the information to
Flynn in a brief memo. The document was not given to Foxworth’s
attorneys.
In addition, Officer Robert Guity had received a so-called “Good Citizen

Report” on May 25, 1991 from a caller who said Logan was bragging about
shooting McLean. The anonymous caller contacted Guity again on May 28,
this time with the officer’s pager, and told Guity about Logan’s prior arrests.
This information was also not provided to Foxworth’s attorneys, and Larkin
knew about the report, according to his trial notes.
On January 31, 2020, Foxworth’s attorneys filed an expansive motion for a

new trial. First, it said requiring Davis to recuse himself as Foxworth’s
attorney violated Foxworth’s right to choose counsel. The motion also cited
the shakiness of Hobson’s identification and his recantation. In addition, the
motion said that the state’s failure to disclose evidence about Logan had
harmed Foxworth’s ability to defend himself in court.
This occurred in two main ways. First, the Good Citizen Report would have
allowed Foxworth to present a third-party culprit defense. Second, the
emergence of the report would have likely required the trials of Logan and
Foxworth to be severed, and Foxworth’s jury would not have heard Logan’s
statement unless Logan also testified.
Although the Suffolk County District Attorney’s Office had fought Foxworth
through the courts for nearly 30 years, the new evidence and the role of
prosecutors in keeping this information from Foxworth and his attorneys
was sufficient to bring about a sea change.
The DA’s Integrity Review Bureau began reviewing the case in this new light
in the fall of 2020, culminating in an interview with Hobson on December
11, 2020, where he again asserted that he had been unfairly pressured to
identify Foxworth as the shooter. He told investigators that he only
recognized Foxworth’s face from the photos, not the shooting itself.
On December 18, 2020, prosecutors filed a response in Suffolk Superior

Court that supported a new trial and Foxworth’s immediate release from
prison. It said in part:
“In summary, the single identification witness’s
credible recantation of his identification testimony, the substantial
likelihood that the unnecessarily suggestive identification procedure could
have resulted in a misidentification of the defendant, and the prejudicial
impact of the manner in which the co-defendant’s statement was presented
to the jury, cast real doubt on the justice of the conviction.”
Judge Christine Roach didn’t act promptly on the filing; she said the court
had no time that week to hear the case. District Attorney Rachel Rollins then
filed an emergency petition on December 22, 2020, with the state’s Supreme
Judicial Court. On December 23, 2020, after hearing from the state and
Foxworth’s attorneys, Associate Justice Scott Kafker ordered Foxworth’s
release from prison that day.
“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.” Foxworth was twice rejected for parole because he would not
accept responsibility for a crime he did not commit.
On January 13, 2021, the motion for a new trial was granted, and the DA’s
office dismissed the charge that same day.
– Ken Otterbourg
Report an error or add more information about this case.
31
Posting Date: 3/1/2021
Last Updated: 3/1/2021
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32
EXHIBIT 1F
33
11/1/22, 10:48 AM Case Details - Massachusetts Trial Court 1
9184CR97923 Commonwealth vs. Foxworth, Robert D
Case Type:
Indictment
Case Status:
Open
File Date
08/14/1991
DCM Track:
I - Inventory
Initiating Action:
MURDER c265 §1
Status Date:
10/06/2020
Case Judge:
Next Event:
All Information Party Charge Event Docket Disposition
Party Information
Commonwealth
- Prosecutor
Alias Party Attorney
Attorney
Campbell, Esq., Cailin
Bar Code
676342
Address
Suffolk County District Attorney's Office
1 Bulfinch Place
Third Floor
Boston, MA 02114
Phone Number
(617)619-4070
Attorney
Kesselheim, Esq., Dara Z
Bar Code
660256
Address
Suffolk County District Attorneys Office
1 Bulfinch Place
Suite 300
Boston, MA 02114
Phone Number
(617)619-4000
Attorney
Lee, Esq., Mark Tan
Bar Code
639525
Address
Suffolk County District Attorney
One Bulfinch Place
Boston, MA 02114
Phone Number
(617)619-4000
More Party Information
Foxworth, Robert D
- Defendant
Attorney
Belger, Esq., Amy
Bar Code
629694
Address
Law Office of Amy M. Belger
2125 WASHINGTON ST
Holliston, MA 01746
34
www.masscourts.org/eservices/;jsessionid=B7C9C223D4DBAB44727223486C9B4192?x=33922-4XQ*gEalltszXke1GpWfniHY2nA*sd*XbRL98I95gpZ3qcrn0uv… 1/13
Phone Number
(508)893-6031
Attorney
Thompson, Esq., John M
Bar Code
496780
Address
Thompson and Thompson PC
75 Market St
3rd Floor
Springfield, MA 01103
Phone Number
(413)739-2100
MA Parole Board
- Keeper of Record
Party Charge Information

Foxworth, Robert D
- Defendant
Charge # 1:
265/1-0 - Felony MURDER c265 §1
Original Charge
265/1-0 MURDER c265 §1 (Felony)
Indicted Charge
Amended Charge
Charge Disposition
Disposition Date
Disposition
01/13/2021
Nolle Prosequi
Events
Date Session Location Type Event Judge Result
09/26/2017 09:30 Criminal BOS-7th FL, CR 704 Conference to Review Status Sullivan, Hon. William F Not Held
AM 1 (SC)
11/02/2017 11:00 AM Criminal BOS-9th FL, CR 906 Conference to Review Status Roach, Christine M Held as Scheduled
6 (SC)
07/13/2018 09:30 Criminal BOS-9th FL, CR 906 Motion Hearing Held as Scheduled
AM 6 (SC)
08/10/2018 09:30 Criminal BOS-9th FL, CR 906 Bail Hearing Roach, Christine M Rescheduled
AM 6 (SC)
08/17/2018 09:00 Criminal BOS-9th FL, CR 906 Bail Hearing Roach, Christine M Held as Scheduled
AM 6 (SC)
09/27/2018 09:30 Criminal BOS-9th FL, CR 906 Conference to Review Status Roach, Christine M Held as Scheduled
AM 6 (SC)
11/09/2018 09:30 AM Criminal BOS-9th FL, CR 906 Motion Hearing Roach, Christine M Held as Scheduled
6 (SC)
01/18/2019 09:30 Criminal Conference to Review Status Canceled
AM 6
07/13/2020 11:00 AM Criminal Conference to Review Status Roach, Christine M Held as Scheduled
6
07/13/2020 11:00 AM Criminal Motion Hearing Roach, Christine M Canceled
6
01/13/2021 09:30 Criminal Hearing on Motion for New Ullmann, Hon. Robert L Held as Scheduled
AM 6 Trial
01/13/2021 09:30 Criminal Conference to Review Status Ullmann, Hon. Robert L Held as Scheduled
AM 6
35
Docket Information
Docket Docket Text File Image
Date Ref Avail.
Nbr.
08/14/1991 Original case info: ORIGIN=I.
10/31/1991 Stat at cnvrsn to cmputr 10/31/91.
(see docket book for previous docket entries).

03/30/1992 Case status changed: disp
03/12/2008 Defendant came into court. Parties report with order received from
Federal Justice Rya Zobel re: conditions of release of defendant
pending Federal Court matter. Conditions stated to the defendant on
the record (see record) Bail warning not given.

03/12/2008 Order by the Court Zobel, Federal Justice filed for the prupose of
59
this hearing.
03/12/2008 Defendant reports this date to Chief Probation Officer Sandy
Stillwell. Lauriat J - J. Ditkoff, ADA - G. Lungren, ADA - D. Huang,
AAG - ERD - J. Thompson, attorney

03/13/2008 Defendant not in Court , Counsel not appearing this date. The Court,
Lauriat J - After telephone conversation with Unites States District
Court Judge Rya Zobel orders that the Court's order dated 3/12/08 be
vacated the matter is returned to the jurisdiction of the United
States District Court for further hearing before Zobel J. Lauriat J -
ERD
03/14/2008 Amended order for release of petitioner by the Court Federal Justice
60
Rya Zobel filed for the purposes of clarification of the records (see
entry of 3/12/08, 3/13/08)

04/18/2017 John M Thompson, Esq.'s Notice of Appearance filed 61
04/18/2017 Amy Belger, Esq.'s Notice of Appearance of Counsel filed 62
04/18/2017 Defendant 's Motion for New Trial filed
63
(ORIGINAL MOTION and Docket Sent to Roach, RAJ)
04/18/2017 Defendant 's Motion for Post-Conviction Discovery Pursuant to Mass. R. Crim. Pro. 30(c)(4) filed
64
(ORIGINAL MOTION and Docket Sent to Roach, RAJ)
04/21/2017 Endorsement on Motion for Post Conviction Discovery, (#64.0): Other action taken
Commonwealth to Respond within 90 Days on or Before 7/21/17.
(Copies and Notices Sent to J Thompson, ATTY, A Belger, ATTY, and J Zanini, ADA)
04/21/2017 Endorsement on Motion for New Trial, (#63.0): Other action taken
Commonwealth to Respond within 90 Days on or Before 7/21/17.
(Copies and Notices Sent to J Thompson, ATTY, A Belger, ATTY, and J Zanini, ADA)
09/18/2017 ORDER: Not in court
Continued by agreement to 9-26-17 re status(J)
Sullivan, J. - A. Belger, Atty. - FTR

09/26/2017 Event Result:
The following event: Conference to Review Status scheduled for 09/26/2017 09:30 AM has been resulted
as follows:
Result: Not Held
Reason: Not reached by Court
Off List
10/02/2017 Defendant 's Motion for a Status Conference filed 65
10/06/2017 Endorsement on Motion for a status conference, (#65.0): ALLOWED
"for status conference in ctrm 906. parties to kindly contact session clerk Mr.Sheehan to agree on a
morning conference" - Roach RAJ
(ADA T.Anderson and Atty J.Thompson each notified via electronic mail)
Judge: Roach, Christine M

10/12/2017 Defendant 's Motion for Post-Conviction Discovery Pursuant to Mass. R. Crim. Pro. 30(c)(4), with 66
Memorandum of Law, Affidavit and Proposed Orders. (Notice sent to Roach-RAJ with copy of Motion and
Docket Sheets).
10/20/2017 General correspondence regarding Correspondence received from Atty Thompson dated 10/20/17 re: 66.1
scheduling filed.
36

Date Ref Avail.
Nbr.
10/27/2017 General correspondence regarding By agreement of ADA T.Anderson and Atty J.Thompson, matter
scheduled for 11/2/17 at 11:00AM re: status conference re: Outstatnding Isues. (ctrm 906, Deft excused)
Parties notified via electronc mail
10/27/2017 General correspondence regarding Correspondence received from Atty Thompson dated 10/24/17 re: 67
scheduling filed.
11/01/2017 Commonwealth 's Response to the Defendants Motion for Post-Conviction Discovery filed.
68
(Roach RAJ notified)
11/01/2017 Commonwealth 's Motion to enlarge time to file an opposition to Defendants Motion for New Trial.
69
11/02/2017 Defendant Not in Court
The following event: Conference to Review Status scheduled for 11/02/2017 11:00 AM has been resulted
as follows:
Result: Held as Scheduled
Judge Roach sets Following out of Court Dates: 11/16/17 - Counsel for Defense to Review file @ District
Attorneys Office
Defendants Supplemental Memorandum re: Federal Custody issue to be filed out of court - 11/17/17,
Commonwealth to File its Opposition out of Court - 12/15/17
Upon Receipt of Filings, Court to take Matter Under Advisement
Roach,RAJ - T.Anderson,ADA - J.Thompson/A.Belger, Atty - F.LeRoux,C.R.

11/09/2017 Defendant Amy Belger, Esq.'s Certificate of Service )
71
Roach,RAJ Notified
Filed
11/10/2017 General correspondence regarding Swap x-Ref @ request of Probation. 70
11/15/2017 Affidavit of Spencer Lord(Deputy General Counsel of the MA Parole Board) in Response to the Defendants 72
Motion for Post-Conviction Discovery
Filed
11/17/2017 Defendant 's Supplemental, Memorandum Regarding Discovery of Exculpatory Evidence and Information 73
in Possession of federal Authorities
Filed w/ Affidavit in Support

12/22/2017 Commonwealth 's Motion to enlarge time to file an opposition to the Defendant's Motion for New trial
74
(Roach RAJ notified with the Original motion)
12/22/2017 Endorsement on Commonwealth's Motion to Enlarge Time to File an Opposition to the Defendant's Image
Motion for New Trial, (#74.0): ALLOWED
for the reasons stated
(Copy and Notice Sent to J Thompson, ATTY, A Belger, ATTY, and T Anderson, ADA)

01/02/2018 Defendant 's Motion to (1) Take his Motion for Access to his Parole Board file Under Advisement; (2) 75
Deem the Factual Allegations in his Motion for New Trial to be admitted for Failure to Dent them: and (3)
Grant his Post-Conviction Discovery Motion for lack of Opposition
(Notice sent to Roach-RAJ with copy of Motion and Docket Sheets).

01/22/2018 Commonwealth 's Motion to enlarge time to file an opposition to the defendant's motion for new trial. 76 Image
Filed.
(Copy of motion with docket sheet sent to Roach, RAJ)

01/26/2018 Endorsement on Motion to enlarge time, (#76.0): ALLOWED
"Motion to January 29, 2018 is allowed, this first day I have seen the motion"
(Copy of endorsement to T. Anderson, ADA and A. Belger, Attorney)

01/29/2018 Defendant 's Response to Commonwealths January 22, 2018 motion to enlarge time to file opposition to 77 Image
the Defenses' motion for new trial and status report and request for ruling on parole board discovery
motion
(Copy w/docket to Roach, RAJ)

01/30/2018 Commonwealth 's Motion to enlarge time to file an opposition to defendant's motion for a new trial
78 Image
02/05/2018 Defendant 's Response to Commonwealth's January 30, 2018 motion to enlarge time to file opposition to 79 Image
the defendants motion for new trial and status report and request for ruling on Parole Board Discovery
Motion filed
37

Date Ref Avail.
Nbr.
02/07/2018 Endorsement on Motion to enlarge time to file opposition to the defendants motion for new trial, (#78.0): Image
ALLOWED
Enlargement to 02/10/2018 (Notice sent to ADA T. Anderson, Atty. A. Belger and Atty. J. Thompson with
copy of Endorsement).

02/22/2018 Commonwealth 's Motion to enlarge the time to file an opposition to the defendant's motion for a new trial 80 Image
filed

03/05/2018 Defendant 's Response to Commonwealth's February 22, 2018 motion to enlarge time to file opposition 81 Image
to the Defendants motion for new trial and status report and request for ruling on Parole Board Discovery
Motion
(Copy with docket to Roach, RAJ)

03/14/2018 Commonwealth 's Motion to Enlarge time to File an Opposition to the Defendants Motion for New Trial
82
Filed
(Roach,RAJ Notified)
03/16/2018 Endorsement on Defendant's Response to Commonwealth's 2/22/2018 Motion to Enlarge Time..., Image
(#81.0):
Motion for Request for Ruling is DENIED W/O/P. The Court will Await for the Commonwealth's Response
before taking any action
(Copy and Notice Sent to J Thompson, ATTY, A Belger, ATTY, and T Anderson, ADA)

03/16/2018 Endorsement on Motion to Enlarge Time to File an Opposition to the Defendant's Motion for New Trial, Image
(#82.0): ALLOWED
until March 30, 2018. No More Continuances.
(Copy and Notices Sent to J Thompson, ATTY, A Belger, ATTY, and T Anderson, ADA)

03/26/2018 Defendant 's Motion for Reconsideration: Request for Ruling on Parole Board Discovery Motion filed
83 Image
(Copy and Docket Sent to Roach, RAJ)
04/13/2018 Endorsement on Motion Motion for Reconsideration, (#83.0): DENIED
Image
(Copy of endorsement to A. Belger, Attorney and J. Zanini, ADA)

04/13/2018 Defendant 's Motion for Court to assert control over this litigation by taking remedial actions to enable it 84 Image
to fairly adjudicate Foxworth's claims without enabling the Commonwealth to further obstruct the litigation
with status report filed

04/25/2018 Endorsement on Deft's Status Report, (#84.0):
Image
Commonwealth to Respond to this Motion by no Later than 5/7/18. No Continuances. The deadline of
March 30, 2018 stands
(Copy and Notice Sent to Zanini, J and A Belger, ATTY)

05/07/2018 Commonwealth 's Response to Paper 84 and Motion to Enlarge Time to File an Opposition to the 85 Image
Defendants Motion for New Trial
Filed
(Copy with Docket to Roach,RAJ)

05/11/2018 Defendant 's Motion for Stay of Execution of Sentence and Admission to Bail Pending Motion for New 86 Image
Trial
Filed
(copy with Docket to Roach,RAJ)

05/21/2018 Endorsement on Response to Paper 84 and Motion to Enlarge Time to File an Opposition to the Image
Defendants Motion for New Trial, (#85.0): ALLOWED
and that time having now passed, the Court would expect the opposition to have been filed Friday, May 18,
2018. (Notice sent with copy of Endorsement to T. Anderson, ADA, A. Belger, Atty. and J. Thompson,
Atty.).

05/23/2018 Opposition to paper #63.0 Defendants third motion for new trial filed by Commonwealth
87
(Copy of original motion with docket to Roach, RAJ)
38

Date Ref Avail.
Nbr.
06/15/2018 Defendant 's Motion for 1) Hearing on his Motion for Stay of Execution of Sentence and Admission to Bail 88 Image
Pending Motion for New Trial 2) Hearing on the Commonwealth's Violation of this Court's Order to Provide
and Respond to Requests for Post-Conviction Discovery and 3) a Court Order Granting him Access to his
Parole Board file pursuant to his Motion for Access to his file that has been pending, unopposed, for more
than Eight Months filed
(Copy and Docket Sent to Roach, RAJ)

06/21/2018 General correspondence regarding By agreement of ADA T.Anderson and Atty A.Belger and J.Thompson,
Matter continued to 7/13/18 at 9:30AM for status hrg re: Defendant's outstanding post-conviction motions
(ctrm 906, Habe issued via fax to MCI Shirley Medium)
06/21/2018 Habeas Corpus for defendant issued to MCI - Shirley returnable for 07/13/2018 09:30 AM Motion Hearing.
07/13/2018 Event Result:: Motion Hearing scheduled on:
07/13/2018 09:30 AM
Defendant brought into Court, Status hrg re: Outstanding post-conviction motions held before Roach RAJ
After hearing, Continued by agreement to 8/10/18 at 9:30Am for hrg re: Bail Review (ctrm 906, Habe
issued to MCI Shirley) Note: Commonwealth's Response/Opposition re: Deft's request for Bail due out-of
Court: 8/7/18
ORDER: The Court Roach RAJ Orders the Production of Trial file documents to Defense: 8/31/18. Status
report re: Courts Order to produce Trial file documents due out-of-Court: 8/3/18. Out-of-Court filing date set
re: Commonwealths Response to Defendant's Request for Production of Federal Discovery: 7/27/18
- Roach RAJ - ADA's M.Lee and T.Anderson - FTR ctrm 906 - Atty's J.Thompson, L.Thompson and
A.Belger

07/13/2018 ORDER: Court Orders following status hearing of July 13, 2018 filed
89 Image
(Copy of entire Order to J. Thompson, Attorney, A. Belger, Atty and T. Anderson, ADA)

07/13/2018 Habeas Corpus for defendant issued to MCI - Shirley returnable for 08/10/2018 09:30 AM Bail Hearing.

07/13/2018 ORDER: Order for materials requested pursuant to Dwyer Summons
90 Image
Summons to Issue
(With two protective orders filed)

07/13/2018 Endorsement on Motion for Post-Conviction Discovery Pursuant to Mass. R. Crim. Pro. 30(c)(4), (#64.0):
Image
"Following additional gearing, motion ALLOWED with respect to all un-privileged aspects of the DA's "Trial
File", on the schedule stated in open court, and the written order of this date with respect to the so called
"Judicial Authority" materials the court awaits the Commonwealth's long delayed response, as also
scheduled today. The Mass parole Board file requested by separate motion to be handles by Rule 17
procedures. "BOPD" documents to be reviewed again at the source"
(COPY of endorsement to T. Anderson, ADA and A. Belger, Attorney and J. Thompson, Atty)

07/13/2018 Endorsement on Motion for Post-Conviction Discovery Pursuant to Mass. R. Crim. Pro. 30(c)(4),, (#66.0):
Image
"Continuing this motion as one for material governed by Rule 17, and hearing no opposition from the
Commonwealth or the Parole Board (See affidavit P#72), this motion al allowed to the extent that the Court
is issuing a summons pursuant to Dwyer Protocol"
(Copy to T. Anderson, ADA. J. Thompson, Atty and A. Belger, Atty)

07/13/2018 Endorsement on Motion to (1) Take his Motion for Access to his Parole Board file Under Advisement; (2) Image
Deem the Factual Allegations in his Motion for New Trial to be admitted for Failure to Dent them: and (3)
Grant his Post-Conviction Discovery Motion for lack of Opposition, (#75.0): DENIED
"Following status hearing this day, the motion contained in this pleading have entire been ruled on or are
denied without prejudice "
(Copt to T. Anderson, ADA and Attorneys J. Thompson, A. Belger)
39

Date Ref Avail.
Nbr.
07/13/2018 Endorsement on Motion for 1) Hearing on his Motion for Stay of Execution of Sentence and Admission to Image
Bail Pending Motion for New Trial 2) Hearing on the Commonwealth's Violation of this Court's Order to
Provide and Respond to Requests for Post-Conviction Discovery and 3) a Court Order Granting him
Access to his Parole Board file pursuant to his Motion for Access to his file that has been pending,
unopposed, for more than Eight Months filed, (#88.0):
"Following status hearing today, motion for bail hearing ALLOWED for 8/10/18, motion for further Rule 14
and Rule 17 orders also allowed"
(Copy to T. Anderson, ADA and Attorneys J. Thompson, and A. Belger)

07/13/2018 Other 's Submission of Court filings filed (Book of Court Filings Indexed)
91
(Original w/docket to Roach, RAJ)
07/30/2018 Commonwealth 's Response to the Defendant's Motion for Post conviction Discovery re: "Federal 92 Image
Authority" Materials filed.
(Roach RAJ notified with original filing)

08/03/2018 Commonwealth 's Submission regarding status report re: The Defendant's Motion for post conviction 93 Image
Discovery and the "Suffolk D.A. Trial file" Materials filed
08/08/2018 Event Result:: Bail Hearing scheduled on:
08/10/2018 09:30 AM
Has been: Rescheduled For the following reason: Joint request of parties
Matter rescheduled by agreement to 8/17/18 at 9AM for hrg re: Bail (CTRM 906, Habe issued to MCI
Shirley)
- Roach RAJ - ADA T.Anderson and Atty A.Belger (each via electronic mail)

08/08/2018 Habeas Corpus for defendant issued to MCI - Shirley returnable for 08/17/2018 09:00 AM Bail Hearing.
***PLEASE CANCEL HABE FOR 8/10/18 EVENT****

08/09/2018 Defendant 's Motion to modify Court Order dated July, 13, 2018 for Parole Board Record Production
94 Image
08/09/2018 Commonwealth 's Motion in opposition to the Defendant's Motion to Stay sentence and be admitted to 95 Image
Bail filed

08/10/2018 Endorsement on Defendant 's Motion to modify Court Order dated July, 13, 2018 for Parole Board Image
Record Production, (#94.0): ALLOWED
as endorsed - Roach RAJ
(ADA T.Anderson and Atty's J.Thompson and A.Belger each notified with copy via electronic mail)
Note: Copy also sent to Atty G.Moroney from the MA Parole Board

08/14/2018 General correspondence regarding Records Received from the MA Parole Board in Un-Redacted Form.
Note: Delivered to Ctrm 906 in-hand by Atty G.Moroney. Note: Un-redacted Records 1 of 2 and 2 of 2
received and ORDERED IMPOUNDED - Roach RAJ
08/17/2018 Habeas Corpus for defendant issued to MCI - Shirley returnable for 09/27/2018 09:30 AM Conference to
Review Status.
08/17/2018 Event Result:: Bail Hearing scheduled on:
08/17/2018 09:00 AM
Has been: Held as Scheduled
Defendant brought into Court, Status hrg re: Post Conviction Discovery and Bail hearing held before Roach
RAJ
Continued by agreement to 9/27/18 at 9:30AM for status hearing re: Any post-conviction Discovery
Disputes/ status re: Any supplemental filings to New Trial Motion and Scheduling of Any Future Dates
(Ctrm 906, Habe issued to MCI Shirley via fax)
Note: Any Supplemental filings re: Bail to be filed out-of-Court by 8/31/18. Upon Filing, Matter to be TUA
- Roach RAJ - T.Anderson, ADA - FTR N.McCann, Monitor - J.Thompson and A.Belger-Atty's

08/31/2018 Defendant 's Supplement and Revision to Defendant Foxworth's Motion for Stay of execution of 96 Image
Sentence and admission to Bail pending Motion for New Trial. Note: Exhibit's A-G in support there of
Attached and Filed UNDER SEAL pursuant to the Court's Protective Order. (Roach RAJ notified with
original filings)
09/07/2018 Commonwealth 's Notice (First) of Post-Conviction Discovery "SCDAO FILE" Production (Bates Stamp 97 Image
00001-01770) filed
40

Date Ref Avail.
Nbr.
09/13/2018 Finding and Order on Bail:
98 Image
Issued and Filed.
(ADA's M.Lee and T.Anderson and Atty's J.Thompson and A.Belger each notified with copy via electronic
mail)

09/13/2018 Endorsement on Defendant 's Motion for Stay of Execution of Sentence and Admission to Bail Pending Image
Motion for New Trial, (#86.0): DENIED
as endorsed - Roach RAJ
ADA's M.Lee and T.Anderson and Atty's J.Thompson and A.Belger each notified with copy via electronic
mail)

09/19/2018 Commonwealth 's Notice (Second) of Post-Conviction Discovery "SCDAO FILE" Production (Bates 99 Image
Stamp 01771-02139) filed
09/26/2018 Defendant 's Supplemental and renewed motion for stay of execution of Sentence and admission to Bail 100 Image
pending motion for New Trial filed
(Roach RAJ notified with copy)

09/27/2018 Event Result:: Conference to Review Status scheduled on:
09/27/2018 09:30 AM
Christine M Roach, Presiding
Defendant brought into Court.
Status Hearing re: Post-Conviction Motion for New Trial held before Roach, RAJ.
After hearing, matter continued by Agreement to 11/9/18 at 9:30 a.m., Room 906 for Post-Conviction
Motion Hearing Re: Remaining Federal Disputes Materials/Status Re: Any Requests to Committee.
Roach, RAJ, - M.Lee/T.Anderson, ADAs, - A.Belger, Atty, - FTR/906

10/03/2018 Commonwealth 's Notice Third Notice of Post-Conviction "SCDAO file" Production (Bates Stamp 02140- 101
02148)
11/06/2018 Defendant 's Motion to Habe Defendant in for November 9, 2018 Status Hearing 102
11/07/2018 Endorsement on , (#102.0): DENIED
Image

11/09/2018 09:30 AM
Defendant not in Court. Defendant's presence excused.
Motion Hearing held. After hearing, continued by agreement to 1/18/19 at 9:30 a.m., Room 906 for Status
Conference (Defendant's appearance excused).
Roach, RAJ, - M.Lee, ADA, - A.Belger/J.Thompson, Attys, - FTR/906

01/15/2019 Defendant 's Motion for Order Directing Commonwealth to File Statement of Availability of Pretrial 103 Image
Discovery Compliance Records
01/15/2019 Defendant 's Submission Defendant Foxworth's Status Report and Motion for Order Rescheduling January 104 Image
18, 2019 Status Conference with a Report by the Commonwealth
01/15/2019 Endorsement on Defendant Foxworth's Motion for Order Directing Commonwealth to File Statement of Image
Availability of Pretrial Discovery Compliance Records, (#103.0): DENIED
without prejudice 1.) because I do not understand it; and 2.) because the parties must first agree or ask the
court to rule on a comprehensive plan going forward to resolve the status of the case. Given the history of
this post-conviction litigation, I decline to issue piecemeal orders.
01/15/2019 Attorney appearance
On this date Mark Tan Lee, Esq. added for Prosecutor Commonwealth
41

Date Ref Avail.
Nbr.
01/15/2019 The following form was generated:
A Clerk's Notice was generated and sent to:
Attorney: Amy Belger, Esq.
Attorney: John M Thompson, Esq.
Attorney: Mark Tan Lee, Esq.
Attorney: Teresa K Anderson, Esq.
Notices sent via e-mail

01/15/2019 Endorsement on Defendant Foxworth's Status Report and Motion for Order Rescheduling January 18, Image
2019 Status Conference with a Report by the Commonwealth, (#104.0): Other action taken
Motion ALLOWED in part and DENIED in part, as follows:
The January 18 event is cancelled. The Commonwealth is to file a DETAILED explanation as to (1) why
the events detailed and ordered in the hearing on 11/19/18 have not occurred; (2) the Commonwealth's
plan for accomplishing the ordered work, with precise dates; and (3) the earliest date on which the
Commonwealth will be prepared to address the court on next steps. No hearing or conference will be
scheduled until the Commonwealth provides this information in writing to the Court, which writing shall be
filed in Courtroom 906 no later than January 22, 2018.
Attorney: John M Thompson, Esq.
Attorney: Mark Tan Lee, Esq.
Attorney: Teresa K Anderson, Esq.
Notices sent via e-mail

01/18/2019 09:30 AM
Has been: Canceled For the following reason: Court Order
Appeared:
Staff:
Michelle Fentress, Assistant Clerk Magistrate

02/06/2020 Defendant 's Motion for New Trial (Notice sent to Roach-RAJ with Original Motion and Docket Sheets) 105
02/14/2020 Endorsement on Motion for New Trial, (#105.0): Other action taken
Image
Commonwealth kindly to Respond to this Motion within 90 Days by no Later then May 15, 2020 (Notice
sent with copy of Endorsement to Atty A. Belger, Atty. J. Thompson, ADA M. Lee and ADA C. Campbell).
02/26/2020 Defendant 's Motion Rule 30(C)(4) Motion for Further Discovery filed
106 Image
03/03/2020 Endorsement on Motion for further discovery, (#106.0): Other action taken
Image
"Commonwealth to respond to this motion by the same deadline as that for the new motion for new
trial(Paper #105) that is, by no later than May 15, 2020"
Copy to C. Campbell, ADA and A. Belger, Attorney

Attorney: Cailin Campbell, Esq.

04/08/2020 Defendant 's Motion for Stay of Execution of Sentence Due to Pending Motion for New Trial in Light of 107 Image
COVID-19 Pandemic Filed
(E-mail copy sent to Roach, RAJ)

04/22/2020 Opposed Motion for Rebuttable Presumption of Release (COVID19)
108 Image
Commonwealth's Opposition to the Defendant's Motion to Stay Execution of His Sentence Filed
(E-mail copy sent to Roach, RAJ.)

04/23/2020 Endorsement on Motion for Stay of Execution of Sentence Due to Pending Motion for New Trial in Light of
COVID-19 Pandemic, (#107.0): DENIED
See Ruling (P#109)
(E-mail copy sent to Atty A. Belger, Atty Thompson, ADA D. Kasselheim, and ADA C. Campbell)
04/23/2020 Order RE: COVID 19
109 Image
Motion to Stay Sentence DENIED
See attached Order
Ruling on Defendant's Motion for Stay of Execution of Sentence Due to Pending Motion for New Trial
(Paper 107)
(E-mail copy sent to Atty A. Belger, Atty J. Thompson, ADA D. Kesselheim, and ADA C. Campbell)
04/24/2020 Defendant 's Motion to Order the Department of Correction to Produce Expedited Copy of Defendant's 110 Image
Medical Records Filed

42

Date Ref Avail.
Nbr.
04/27/2020 Defendant 's Motion to Reconsider and to Correct the Stay Record and to Expedite Submission of the 111 Image
Case for Decision Filed

04/28/2020 Endorsement on Motion to Order the Department of Correction to Produce Expedited Copy of Defendant's
Medical Records, (#110.0): ALLOWED
Pursuant to the SJC decision today, CPCS v. CJTC (No. 2), para. 3 at slip. op. page 4, Mr. Foxworth is
entitled to receive copies of his medical records "immediately" pursuant to email request, and this Motion is
therefore allowed (even though no longer necessary), as a matter of law.
SO ORDERED.
Christine M. Roach - April 28, 2020
04/28/2020 Endorsement on Motion to Reconsider and to Correct the Stay Record and to Expedite Submission of the
Case for Decision, (#111.0): DENIED
The Motion is simply wrong in presuming the Mazza decision "was not available to this Court in deciding
the Original COVID-19 Stay Motion." Motion to Reconsider at page 8.
To the contrary, Mazza issued on April 21, 2020, and did not change the law on newly discovered
evidence; the court issued its stay decision on April 23, 2020.
I have considered all of the other points made in the lengthy Motion to Reconsider, but find they do not add
to the analysis already considered and ruled upon.
As to a possible date for any hearing on the long-litigated motion for new trial, the Commonwealth shall
continue to have the time to respond set out in S.O. 5-20, and any appropriate proceedings will occur
thereafter.
SO ORDERED. Christine M. Roach April 28, 2020
05/12/2020 Commonwealth 's Response : Status Update Regarding the Time for Filing its Response to Defendant's 112 Image
Motion for New Trial Filed

05/13/2020 Defendant 's Response to Commonwealth's Status Report and Scheduling Request Filed
113 Image
05/14/2020 ORDER: Scheduling Order Filed
114 Image
(E-mail copy sent to Atty A. Belger, Atty J. Thompson, and ADA D. Kesselheim)
06/29/2020 Commonwealth 's Submission regarding the Time for Filing its Response to Defendant's Motion for New 115 Image
Trial (Status Update), filed
07/13/2020 11:00 AM
Has been: Canceled For the following reason: Event Changed
Staff:

07/13/2020 11:00 AM
Has been: Canceled For the following reason: Event Changed
Staff:

07/13/2020 11:00 AM
Staff:
Defendant not present; presence excused.
Event held via Zoom.
After hearing, order to issue.
Roach, RAJ, - D.Kesselheim, ADA - J.Thompson/A.Belger, ADAs, - FTR: 11:12 a.m.

On this date Dara Z Kesselheim, Esq. added for Prosecutor Commonwealth

07/14/2020 ORDER: Scheduling Order 116 Image
08/05/2020 Notice of docket entry received from Appeals Court

116.1 Image
On July 28, 2020, case has been entered on the single justice docket of the Appeals Court.
43
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Date Ref Avail.
Nbr.
116.2 Image
"RE#1: The defendant seeks a stay pending the resolution of his fourth new trial motion, which is currently
pending before the Superior Court. Under certain circumstances, the Superior Court judge may stay a
sentence imposed by the court during the pendency of a motion for new trial. Commonwealth v. Charles,
466 Mass. 63, 79 (2013). Likewise, pursuant to its authority under G.L. c. 211, § 3, the Supreme Judicial
Court may stay a sentence pending a motion for new trial. Committee for Pub. Counsel Servs. (No. 1) v.
Chief Justice of the Trial Court, 484 Mass. 431, 450 (2020). However, I am not aware of, nor does the
petitioner cite to, any authority permitting a single justice of this court to stay a sentence in the absence of
a pending appeal. See Mass. R. A. P. 6 (b). Therefore, on or before 07/31/2020, the defendant and the
Commonwealth shall file memoranda addressing my authority, if any, to grant the relief requested by the
defendant. The Commonwealth need not address the merits of the defendant's requested stay in its
response and can limit itself to the question of my authority. So ordered. (Shin, J.)."
117 Image
Memorandum and Order DENYING Defendant's Motion to Stay Further Execution of his Sentence Pending
Disposition of his Motion for New Trial., (Shin, J)
118 Image
RE: 2020-J-0343
RE#11: The defendant's motion to impound his medical records (paper #11) is allowed. I find that there is
good cause to impound the medical records to protect the defendant's privacy interest in those records.
The medical records may be inspected and copied by the parties and their counsel of record. The order of
impoundment shall remain in effect until further order of this court or a single justice thereof. So ordered.
(Shin, J.).
08/25/2020 Appeal entered in Appeals Court on 08/25/2020 docket number 2020-P-0953 119 Image

120 Image
Notice of Assembly of Record RE: 2020-J-0343
09/24/2020 Commonwealth 's Notice of Post-Conviction Discovery 121 Image
09/30/2020 Commonwealth 's Request for a Ninety-Day Stay in Proceedings Filed

122 Image
(Notice, copy and docket sent to Roach, RAJ.)
10/05/2020 Endorsement on Commonwealth 's Request for a Ninety-Day Stay in Proceedings, (#122.0): Other action Image
taken
"Defense to respond in writing to the Commonwealth's request by no later than October 16, 2020"
Copy to C. Campbell, ADA, D. Kesselheim, ADA, A. Belger, Attorney and J. Thompson, Attorney
Defendant, Attorney: Amy Belger, Esq. Defendant, Attorney: John M Thompson, Esq
Prosecutor, Attorney: Dara Z Kesselheim, Esq. Prosecutor, Attorney: C. Campbell, Esq.

10/05/2020 Defendant 's Response to Commonwealth's motion for a stay filed
123 Image
(Copy with docket to Roach, RAJ)
10/06/2020 Endorsement on Defendant 's Response to Commonwealth's motion for a stay, (#123.0): ALLOWED, Image
Other action taken
"Based on the defense's assent and the representation by both sides, the Commonwealth's request for a
ninety day stay to December 28, 2020 P#122) is allowed. parties file a joint written status report to the
court by no later than December 14, 2020."
Notice to:
Defendant, Attorney: Amy Belger, Esq. Defendant, Attorney: John M Thompson, Esq
Prosecutor, Attorney: Dara Z Kesselheim, Esq. Prosecutor, Attorney: C. Campbell, Esq.

Defendant, Attorney: Amy Belger, Esq. Law Office of Amy M. Belger 841 Washington St, Holliston, MA
01746
Defendant, Attorney: John M Thompson, Esq. Thompson & Thompson PC 1331 Main St Suite 320,
Prosecutor, Attorney: Dara Z Kesselheim, Esq. Suffolk County District Attorneys Office 1 Bulfinch Place
Suite 300, Boston, MA 02114
Prosecutor, Attorney: Cailin Campbell, Esq. Suffolk County District Attorney's Office 1 Bulfinch Place Third
Floor, Boston, MA 02114
10/13/2020 Rescript received from Appeals Court; judgment AFFIRMED Order of single justice denying motion to stay 124 Image
further execution of sentence affirmed.
(Faxed to probation)
11/19/2020 Commonwealth 's Notice of Post-Conviction Disclosure (Notice sent to Roach-RAJ with copy of Motion and 125 Image
Docket Sheets).
11/23/2020 Commonwealth 's Notice of Post-Conviction disclosure filed (Copy with notice and docket sheets sent to 126 Image
Roach, RAJ)
44

Date Ref Avail.
Nbr.
12/15/2020 Defendant 's Submission regarding joint status report of the parties, filed.
127 Image
(Notice sent to Roach, RAJ. with (P#127) and docket sheets)
12/18/2020 Commonwealth 's Response to the Defendant's Motion for New Trial (Notice sent to Roach-RAJ with copy 128 Image
of Response and Docket Sheets)
12/21/2020 Endorsement on , (#127.0):
Image
The Parties' requested date for Status conference is not possible for the court on such short notice. Parties
to contact Clerk Pichardo during the week of 12/28/2020 to determine: 1) what kind of conference they
seek 2) what next steps they contemplate and accordingly what relief they currently seek from the court.
Further proceedings to be held at the discretion of Ullman, J. in Courtroom 906, Roach, J.

Defendant, Attorney: Amy Belger, Esq. Law Office of Amy M. Belger 841 Washington St, Holliston, MA
01746
Defendant, Attorney: John M Thompson, Esq. Thompson & Thompson PC 1331 Main St Suite 320,
Prosecutor, Attorney: Dara Z Kesselheim, Esq. Suffolk County District Attorneys Office 1 Bulfinch Place
Suite 300, Boston, MA 02114
12/22/2020 Defendant 's Joint Motion for Immediate Hearing on Disposition of Assented-to Motion for New Trial, filed 129 Image
Attorney: Belger, Esq., Amy

12/22/2020 Endorsement on Motion for Immediate Hearing on Disposition of Assented-To Motion for New Trial Image
(Emergency Motion), (#129.0): DENIED
The motion for an emergency hearing is respectfully DENIED. Please see order of 12/21/20. Roach,
R.A.J. 12/22/20. Counsel notified of this decision via electronic mail on 12/22/2020.
12/23/2020 ORDER: Order from Supreme Judicial Court. Kafker, J.
130 Image
NOTICE TO PARTIES VIA EMAIL
131 Image
Release from Custody Order
Sent On: 12/23/2020 14:30:55

12/28/2020 Other 's Joint Motion of the Parties for Expedited Hearing on Defendant's New Trial Motion 132 Image
01/05/2021 Commonwealth 's Notice of Post-Conviction Disclosure 133 Image
01/06/2021 Defendant 's Motion to Impound Appendix Material Containing the Defendant's Home Address 134 Image
01/13/2021 Non-custody Defendant present via Zoom.
Hearing on the Defendant's Assented-to Motion for New Trial held via Zoom. After hearing, the Court
ALLOWS the Defendant's Motion for New Trial.
Ullmann, RAJ - S. Pichardo, ACM - D. Kasselheim, ADA (via Zoom) - A. Belger and J. Thompson, Atty
(via Zoom) - FTR at 9:30AM
01/13/2021 Commonwealth files Nolle Prosequi as to count(s): 1 MURDER c265 §1 135 Image
01/13/2021 MEMORANDUM & ORDER:

136 Image
ON ASSENTED-TO MOTION FOR NEW TRIAL
Judge: Ullmann, Hon. Robert L

01/13/2021 Offense Disposition::
Charge #1 MURDER c265 §1
On: 01/13/2021 Judge: Hon. Robert L Ullmann
By: Hearing Nolle Prosequi

01/13/2021 's Joint Notice of the Parties of Post-Conviction Document Production to the Court. 137 Image
Case Disposition
45
Disposition Date Case Judge

Disposed 03/30/1992
46
EXHIBIT 1G
47
2184CV00136 Foxworth, Robert vs. Commonwealth of Massachusetts
Case Type:
Actions Involving the State/Municipality
Case Status:
Open
File Date
01/21/2021
DCM Track:
A - Average
Initiating Action:
Tortious Action involving the Commonwealth, Municipality, MBTA, etc.
Status Date:
11/18/2021
Case Judge:
Next Event:
All Information Party Event Tickler Docket Disposition
Party Information
Foxworth, Robert
- Plaintiff
Attorney
Thompson, Esq., John M
Bar Code
496780
Address
75 Market St
3rd Floor
Phone Number
(413)739-2100
Attorney
Thompson, Esq., Linda J
Bar Code
496840
Address
75 Market St
3rd Floor
Phone Number
(413)739-2100
Commonwealth of Massachusetts
- Defendant
Attorney
Burton, Esq., Alison
Bar Code
696897
Address
WilmerHale
60 State St
Boston, MA 02109
Phone Number
(785)564-7178
Attorney
Hornstine, Esq., Adam
Bar Code
666296
Address
Office of the Massachusetts Attorney General
One Ashburton Place
Boston, MA 02108
48
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Phone Number
(617)727-2048
Events
Date Session Location Type Event Judge Result
10/25/2021 02:45 PM Civil F BOS-10th FL, CR 1006 (SC) Motion Hearing Held as Scheduled
Ticklers
Tickler Start Date Due Date Days Due Completed Date
Service 01/21/2021 04/21/2021 90
Answer 01/21/2021 05/21/2021 120
Rule 12/19/20 Served By 01/21/2021 05/21/2021 120 11/18/2021
Rule 12/19/20 Filed By 01/21/2021 06/21/2021 151 11/18/2021
Rule 12/19/20 Heard By 01/21/2021 07/20/2021 180 11/18/2021
Rule 15 Served By 01/21/2021 03/17/2022 420 11/18/2021
Rule 15 Filed By 01/21/2021 04/18/2022 452 11/18/2021
Rule 15 Heard By 01/21/2021 04/18/2022 452 11/18/2021
Discovery 01/21/2021 01/11/2023 720 11/18/2021
Rule 56 Served By 01/21/2021 02/10/2023 750 11/18/2021
Rule 56 Filed By 01/21/2021 03/13/2023 781 11/18/2021
Final Pre-Trial Conference 01/21/2021 07/10/2023 900 11/18/2021
Judgment 01/21/2021 01/22/2024 1096 11/18/2021
Docket Information
Date Ref Avail.
Nbr.
01/21/2021 Case assigned to:
DCM Track A - Average was added on 01/26/2021

01/21/2021 Complaint electronically filed. 1 Image
01/21/2021 Civil action cover sheet filed. 2 Image
04/16/2021 Defendant Commonwealth of Massachusetts's Notice of Image

Appearance
Applies To: Hornstine, Esq., Adam (Attorney) on behalf of Commonwealth of Massachusetts (Defendant)
04/16/2021 Answer to original complaint
3 Image
Applies To: Commonwealth of Massachusetts (Defendant)

On this date Adam Hornstine, Esq. added for Defendant Commonwealth of Massachusetts
09/28/2021 Plaintiff Robert Foxworth's Motion for
4 Image
entry of orders to effectuate terms of settlement (unopposed)
09/28/2021 Plaintiff Robert Foxworth's Assented to Motion for
5 Image
MassHealth benefits
6 Image
tuition waiver
7 Image
expungement of criminal records
49

Date Ref Avail.
Nbr.
Notice to Appear
Sent On: 10/06/2021 14:00:41

Notice Sent To: John M Thompson, Esq. Thompson and Thompson PC 75 Market St 3rd Floor,
Notice Sent To: Linda J Thompson, Esq. Thompson and Thompson PC 75 Market St, Springfield, MA
01103
Notice Sent To: Adam Hornstine, Esq. Office of the Massachusetts Attorney General One Ashburton
Place, Boston, MA 02108
10/14/2021 Attorney appearance electronically filed. Image
On this date Alison Burton, Esq. added for Defendant Commonwealth of Massachusetts
10/25/2021 02:45 PM
Hon. Janet L Sanders, Presiding
Staff:
Anh T Bungcayao, Assistant Clerk Magistrate

10/28/2021 Endorsement on Motion for entry of orders to effectuate terms of settlement (#4.0): ALLOWED Image
(dated 10/25/21) notice sent 10/28/21
10/28/2021 Endorsement on Motion for MassHealth benefits by plaintiff (#5.0): ALLOWED
Image
10/28/2021 ORDER: directing that the Commonwealth provide health benefits to Foxworth
8 Image
10/28/2021 Endorsement on Motion for tuition waiver by plaintiff (#6.0): ALLOWED
Image
10/28/2021 ORDER: directing that all tuition and expenses shall be waived at state colleges, community colleges, and 9 Image
universities for plaintiff

10/28/2021 Endorsement on Motion for expungement of criminal records by plaintiff (#7.0): ALLOWED
Image
10/28/2021 ORDER: directing that the record of plaintiff be expunged
10 Image
11/18/2021 Party(s) file Stipulation of Dismissal 11 Image
pursuant to the provisions of Mass.R.Civ.P. Rule 41(a)(l)(ii), hereby stipulate that said action be dismissed
as to all counts and claims with prejudice and without interest or costs, waiving all rights of appeal.
Applies To: Foxworth, Robert (Plaintiff); Commonwealth of Massachusetts (Defendant)
Case Disposition
Disposition Date Case Judge
Disposed by Agreement / Settled 11/18/2021
50
EXHIBIT 2
Exhibit 2: TIMELINE DOCUMENTS RELATED TO THE POSSESSION OF

EVIDENCE BY MARK LEE REGARDING THE ACTUAL
INNOCENCE OF ROBERT FOXWORTH
• Exhibit 2A
12/15/06 fax from AUSA Neil Gallagher to ADA MARK LEE – first communication
to MARK LEE about the informant – 12/15/06 handwritten notes taken by MARK
LEE of a conversation he had with Neil Gallagher. MARK LEE was told by
Gallagher told that the informant had information about the murder of Kenneth
McLean (spelling is wrong – written as “’93 McLaughlin murder (Ronnie Christian)”
Christian was one of Robert Foxworth’s trial co-defendants.
• Exhibit 2B
3/7/07 BPD Homicide Detective Dennis Harris report of proffer session reflecting
MARK LEE was in the room when the informant explained how he knew Robert
Foxworth was innocent of the murder of Kenneth McLean. Informant said he had
already shared this information with federal prosecutors “years earlier.” Informant
was told police and prosecutors that they would be in touch with informant’s
attorney when appropriate.
• Exhibit 2C – corroborative of Exhibit 2B

6/29/93 letter from AUSA Thomas Frongillo to ADA R. John Cinquegrana containing
the information referred to by the informant as provided “years earlier” to law
enforcement. The informant, referred to herein as CI-1, stated that he was at the
meeting where the murder of Kenneth McLean was planned, and Robert Foxworth
was not at the meeting. The informant provided an admission made to him by the
shooter in the McLean murder.
• Exhibit 2D- Affidavit of John M. Thompson dated April 12, 2017

John Thompson wrote to MARK LEE on 7/2/12 requesting a meeting to discuss the
informant’s disclosures to MARK LEE of Robert Foxworth’s actual innocence. A face-
to-face meeting took place on 9/20/12 during which MARK LEE confirmed that he met
with the informant in person during the 3/7/07 federal proffer session and MARK LEE
confirmed that either Detective Dennis Harris or another detective took notes. MARK
LEE agreed, on 9/20/12, to check with the detectives for their notes and any write-up
regarding the parts of the debriefing that pertained to the McLean murder. On
9/21/12, John Thompson provided MARK LEE with a follow up letter documenting and
explaining his belief in Robert Foxworth’s innocence and asking MARK LEE for help
in gaining access to the exculpatory information possessed by the federal prosecutors
as referred to in Exhibit 2C. On 11/19/12, John Thompson called MARK LEE in follow
up, did not reach him, and Mark Lee did not return the call. On 2/19/13, John
Thompson wrote to MARK LEE asking MARK LEE to let him know what he
learned about that 1993 debriefing detailed in Exhibit 2C. MARK LEE did not
respond. On 6/13/13 John Thompson wrote to MARK LEE again asking for
information on this case. MARK LEE did not respond.
51
EXHIBIT 2A
52
•
1"2/16/�008 13:SS FAX Docket No. SUCR1�9794f... >i
001o't).-.:,.,.-;:'-
Depm1ment of1ustiee hfit'ihael J. Sulliu.m
United Sfllk;s Attorney's Office �StatesAUomey
Iolm Joseph Moakley Uilittid Stata<i Courthouse District��
1 Courlho� Way
Suitt9ZOO
Bosion, � 02210
M$in � {617) 7.48-3100
Facsimile Transmis�ion Cover Page
TO: ADAMAIU<U!B
SENSl'l'IVE U.S. ATl'ORNEY FACSIM'IIJt CO�N
'·
FROM:
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NBll, GALI,.AGHBR
Sendm'.,sPhsw>No.: (617) 748--3397
SentJ.v'$&feMngfaxzY'.o.: (�17) 748-3965

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�5 Fax No,: 6-19-4175
Date: 12/lS/06
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00100
53
I
, 12/15/2006
4,
13:58 FAX Docket No. SUCR1�0397923
00101
Proffer Session Report

Operation N�......
co,......
casa•······
I
OTH0Ul'$---
SUbject(s)...... Hussie "Poop1e• liimim!
Biogn\l)ioal Information......
Location...... United States Attomey'11 Office Boston

Date.... .. 10IOSl2GOB
Ttrne...... 01:21 PM
Officers Present...... Sergeant betectlve EIJc Bulman (BPDISIU) /Task Fan:e Agent Joao Momfero (DEA)/ Speoial
Agent Daniel Campbell (ATF) / 48slstant United States Attcmey Neil Gallagher (USAO) I
Attorney
Notes taken by...... Sergeant Detective B�lman /Task Force Agent Juo Monteiro/ Special Agent Daniel
Clmpbeil I
Proffer Session summary._
I
�
. On Tuesday, October03, 2006, at about 1:21 PM. SergeantDetectiveBtic 1
1
1•
�
Bulman of the Bostotl Police Special Investigations Unit, 'fask Force
Agent Joao Moµteiro of the Drug Enforcement Adrninistratior,, Special
Agent Daniel Campbell of the Bureau of Alcohol. Tobacco and Firearms,
along with Assis�t Uni� Atto mey Neil G�er oonducted a
J
. Uni� Attomey's Office
proffer session with Hussie lio)'Jleliin the
in Boston. During this proffer sessio� Bussie lT.QJmml was represented by
Attorney Pet.er Elinkin, who was present and remained throughout the
proffer session, which
• began at about 1:21 PM and ended at approximate]
4:00PM. ·
I
J
This proffer was held as a result of l!ussie �s desire to cooperate With United States
Attorney's Office in providing intelligence on a variety of criminal � liange for j
�
.
consideration on his pencling fedenl case for drug trafficking. Hussie ll
__i_Cd,,____ was arrested in July of i
2005 following a joiJJi-SPcqal Investigations Unit /Drug Enf
m investigation into �s drug trafficking organization. Hussie
�
nistration federal Title
currently faces a !
l
1
maximum sentence of life in prison if convicted on these charges.
The following is a summary of this proffer session and is not intended to be a verbatim version
of statements made. !
INTRODUCTION AND 0\1ERYJEW OF PROFFER SESSION:
At about l :21 PM, Hussie Joyner reviewed the federal proffer agreement with Attorney
Blfoldn and then proceeded to sign the agreement, after which the proffer session .commenced.
00101
54
,12/15/2006 13:58 FAX Docket No. SUCR��097923
00102
Assis�ted St-ates Attorney Gallagher initi� questioning, asking �to state his full
name. lio�d identified himself as Hussie Audi �
Assist.ant United States Attorney Gallagher then outlined the government's position relative l
to this p�offer session and his potential coo?."ration, explaining that the government has a strong case
• against him and that any cooperation he provided w�ve to be very significant for any 1
1
consideration. At this point, specific questioning of�began by Assistant United States
j
!
Attorney (A.U.S.A.) Gallagher relative to his drug organization.
00102
55
12/15/�006 13:58 FAX Docket No. SUCR��1097923
1 00103
56
l
Docket No. SUCRl��f-'097923
· 12/15/2006 13: 59 FAX
·. • L___J
CJ. 00104
!
57
'12/15/2008 13:59 FAX Docket .No. SUCR�ll.097923
I0010s
ROMTCTDE INFORMATION {cgn.tinued):
Kenneth McLean-
9
� stated he, Ronnie Christian, Steven Sealey, �ahari Kazana, p.exri.qc Gillenwater, !
T-Lover (Gillenwaters friend) and Sµab.em, were involved in this incident� stated that Shahemj
. was tried in court fort� beat it. II.a.� stated that Steven Sealey and Ronnie Christian set this i
dr�g robbery � stared that Shah�-Love� (Spanish) was the trig?er man, but
:
believes the tngger man was T�Lover. � stated that Andre Latson was m the car with
l
when the jncident took place and T-Lovers cousin was the driver of this car (N/F/f).
58
.12/15/2006
• 13:59 FAX Docket No. SUCR�7097923
I 00106
'!
59
,12/15/2006
• 13:59 FAX Docket No. SUCR�91l8097923
! 00107
60
12/15/�006 13:59 FAX i;>ocket 1 No. suc�-097923
L_J [ 00108
;
Al this point, oi about 4:00 PM, the proffer session of Hussie Jio�emkd due·to his
required return to the United States Marshal's custody for transportation back to his holding
facility.
DATA SECTiON
'
i
Il
I
l
i
I 00108
61
Docket No. SUCR1991-097923
02011
62 02011
EXHIBIT 2B
63
64
65
66
67
68
EXHIBIT 2C
69
70
71
EXHIBIT 2D
72
SUFFOLK, ss. SUPERIOR COURT

CRIMINAL NO. 097923
V.
ROBERT FOXWORTH
AFFIDAVIT OF JOHN M. THOMPSON

IN SUPPORT OF
MOTION FOR NEW TRIAL
I, John M. Thompson, state under the pains and penalties of perjury:
1. I am a member in good standing of the Massachusetts bar and am one of
Robert Foxworth's attorneys in this motion for new trial proceeding. Since 2002 my
partner Linda J. Thompson and I have been representing Mr. Foxworth in litigation
challenging his March 1992 conviction for the May 23, 1991 murder of Kenneth
McLean.
2. Between 2002 and 2010 my partner and I litigated Mr. Foxworth's
application for further appellate review in the Supreme Judicial Court and his petition
for a writ of habeas corpus in the United States District Court, the United States Court
of Appeals for the First Circuit, the Supreme Judicial Court and the Supreme Court
of the United States.
73
3. Thereafter, Mr. Foxworth's case was accepted for support by the Committee
for Public Counsel Services' Innocence Project. As part of our detailed investigation
of the case against Mr. Foxworth, we tried to reconstruct the trial file of Attorney Earl
Howard, who served as Mr. Foxworth's counsel in his trial, first motion for a new trial,
and direct appeal to the Appeals Court, including the discovery provided by the
Commonwealth before trial. This task was complicated by the fact that Attorney
Howard destroyed his files at some point after 1996. In 2002 and in 2012, the Boston
Police Department, responding to public records requests by Mr. Foxworth, produced
to us hundreds of pages of heavily redacted paperwork from its files on the Kenneth
McLean case.
4. On June 29, 1993 Assistant United States Attorney Thomas Frongillo wrote
to Assistant District Attorney R. John Cinquegrana about Kenneth McLean's murder,
telling Cinquegrana that he had detailed information from two informants, CI-1 and
CI-2, stating that Foxworth was not involved in McLean's murder, which was planned
and executed by others. Attorney Howard's attempt use this letter, standing alone, to
win a motion for new trial, failed. On March 5, 2012 I wrote to Mr. Frongillo, who was
then a private attorney, and asked him about his letter and a May 31, 1991 note from
Special Agent James Sabillia. In a telephone conversation a few days later, Attorney
Frongillo told me that he and S.A. Sabillia were working on the Darryl Whiting
investigation and prosecution at the time of McLean's murder, and that the
information on which his letter to ADA Cinquegrana stood was likely in the files he
generated in the Whiting investigation. I asked Attorney Frongillo whether there was
74
an AUSA currently in the Boston office who had been there during the Whiting
investigation; he referred me to AUSA Theodore Heinrich. Mr. Sabillia confirmed to
me in a telephone conversation around the same time that he had been working under
AUSA Frongillo's supervision then, and referred me to Mr. Frongillo for the answers
to my questions about the information he called Det. Flynn about.
5. On March 12, 2012 I wrote to AUSA Heinrich, asking him to help me gain
access to Attorney Frongillo's Whiting files. In a telephone call a few days later, AUSA
Heinrich, who was on sabbatical teaching at Harvard Law School, told me that he had
arranged for a paralegal in the Boston office of the United States Attorney to retrieve
and review archived files that might document the substance of AUSA Frongillo's 1993
letter. Shortly after that, I communicated with Ms. Carol Dupont, the paralegal who
confirmed to me that AUSA Heinrich had assigned her that task. I maintained email
contact with Ms. Dupont for several months but she eventually quit responding to my
status inquiries. On December 3, 2012 I wrote to AUSA Heinrichs asking about the
status of this effort but received no response.
6. Further investigation led us to believe that CI-1 in AUSA Frongillo's letter
was likely a man who had been convicted in the United States District Court in Boston
in 2010 and faced a lengthy sentence. CI-1 was debriefed pending sentencing by
federal authorities, joined by Suffolk Assistant District Attorney Mark T. Lee and two
Boston Police Department detectives. In the course of that debriefing, CI-1 provided
authorities with extensive information about the McLean murder and told them that
Mr. Foxworth was not involved in it. On July 2, 2012 I wrote to ADA Lee requesting
75
a meeting to discuss CI-l's disclosures regarding the McLean murder.
7. On September 20, 2012 I met with ADA Lee at the Suffolk District Attorney's
office. He told me that the Suffolk District Attorney's Office had established a
committee to investigate claims of wrongful conviction and we briefly discussed my
assertion that Mr. Foxworth was innocent of the McLean murder. ADA Lee confirmed
my information that he and Boston Police Department detectives Harris and Dailey
were present when CI-lhad been debriefed about the murder of Kyle Andrews, among
other matters, and one of the detectives took notes during that debriefing. ADA Lee
agreed to check with the detectives for their notes and any writeup done regarding the
parts of the CI-1 debriefing that pertained to the McLean murder. In a follow-up
letter on September 21, 2012 I provided ADA Lee with documentation supporting my
belief that Mr. Foxworth is innocent of the McLean murder and asked him to join me
in my efforts to recover the federal information reflected in the Frongillo letter. On
November 19, 2012 I called ADA Lee to follow up on the matter but did not reach him
and he did not return my call. On February 19, 2013 I wrote to ADA Lee asking him
to let me know what he had learned about the CI-1 debriefing. He did not respond. On
June 12, 2013 I wrote again to ADA Lee asking him to provide me an unredacted copy
of the transcript of the turret tape recording of the initial telephone calls and radio
transmissions made the night of McLean's murder. He did not respond.
8. In February 2015 I met with Assistant District Attorney Donna Jalbert
Patalano, who was then Chief of Professional Integrity and Ethics and worked in the
Appeals Division of the Suffolk District Attorney's Office to discuss the Mr. Foxworth's
76
innocence case and ask for help in reconstructing the pretrial discovery part of
Attorney Howard's case file. ADA Patalano briefed me on the Suffolk District
Attorney's Conviction Integrity Project and I presented Foxworth's case as one that the
CIP should investigate. I told her that Foxworth's trial/appellate attorney had
destroyed his file and asked for a set of the pretrial discovery materials that had been
turned over to him. She said she would have staff review the District Attorney's file
and submit the discovery for her review, then provide it to me. We discussed the
redacted records I had from the Boston Police Department and my interest in getting
unredacted copies from the District Attorney's Office. I spoke again with ADA Patalano
by telephone on March 16, 2015, confirmed that the CIP was considering Mr.
Foxworth's case, and repeated my request for the pretrial discovery orally, confirming
it by email after the call. ADA Patalano confirmed our agreement by return email and
provided ma a copy of the CIP procedure. I wrote to ADA Patalano on April 8, 2015,
again requested the original discovery provided to Attorney Howard and reiterated my
intent to provide her a list of redacted BPD reports that we needed unredacted copies
of, but received no response.
9. On April 14, 2015 I made an unscheduled visit to ADA Patalano's office and
she graciously met with me for about 20 minutes. She told me that a law student had
identified the pretrial discovery materials I had requested; they were to be reviewed
by an appellate attorney and then forwarded to me. We discussed the BPD documents
and I told her I would provide a list after reviewing the pretrial discovery materials.
ADA Patalano told me that the CIP would be reviewing Mr. Foxworth's case on April
77
30, 2015 and said I might be invited to make a presentation for CIP consideration. We
discussed different types of coordinated efforts that might produce the evidence needed
to fully develop the facts of Foxworth's case, including an evidentiary hearing. On
June 29, 2015 I emailed ADA Patalano asking whether she had made further progress
on the pretrial discovery in Mr. Foxworth's case. Except for an automatic response
saying she was on vacation, I did not hear back from her.
10. On June 30, 2016 I wrote to Assistant Bar Counsel Bruce Eisenhut
regarding his work on Mr. Foxworth's complaint against Attorney Howard, asking him
whether he had retained copies of the Suffolk Superior Court Clerk's materials he had
gotten and provided to Foxworth in 2000. Shortly after that, Attorney Eisenhut called
and told me that the Office of Bar Counsel had not kept that material.
April 12, 2017
78
EXHIBIT 3
Exhibit 3: ADDITIONAL DOCUMENTS THAT SUPPORT THE ALLEGATIONS

OF MISCONDUCT COMPLAINED OF HEREIN
• Exhibit 3A- Report of Detective John Cronin

BPD Detective John Cronin reports that he received a letter from the informant who
is C-I referred to in Exhibit 2C and is the same informant that MARK LEE met with
on 3/7/07. The informant told Detective Cronin that he had information about the
murder of Kenneth McLean and that his attorney was Peter Elikann. Detective
Cronin contacted Peter Elikann who referred Detective Cronin to John Thompson.
John Thompson, in turn, referred Detective Cronin to MARK LEE and told Detective
Cronin that he believed that there was evidence that could clear Robert
Foxworth. Detective Cronin reports that when he spoke to MARK LEE, on 2/21/13,
five months after MARK LEE’s sit-down meeting with John Thompson, detailed in
John Thompson’s affidavit at Exhibit 2D, during which John Thompson explained
what evidence of Robert Foxworth’s innocence he thought existed from the proffer
session MARK LEE attended on 3/7/07. MARK LEE told Detective Cronin that
the informant was debriefed, and that the informant did not have relevant
information regarding the murder of Kenneth McLean.
• Exhibit 3B- Affidavit of John M. Thompson dated 9/26/18

On September 25, 2018, for the very first time, MARK LEE told John Thompson
that during the 3/7/07 federal debriefing that MARK LEE attended with the
informant, the informant volunteered at the end of that meeting that Robert
Foxworth had not been involved in the murder of Kenneth McLean. Also, for the
first time, MARK LEE told John Thompson that Detective Harris had written a
report of that debriefing that had not yet been produced but was in the possession of
the Suffolk County District Attorney’s Office. MARK LEE promised to produce it no
later than September 27, 2018.
• Exhibit 3C- Transcript of Status Hearing Held 9/27/18

On September 27, 2018 a status hearing was held in the criminal case against Robert
Foxworth. John Thompson was not in attendance. I represented Robert Foxworth at
the status hearing. MARK LEE initially told Judge Christine Roach that AUSA Neil
Gallagher told him that the only written report that Robert Foxworth was not a
participant in the murder of Kenneth McLean was the 1993 report which can be found
at Exhibit 2A. At the time MARK LEE made this representation to the court,
he was in possession of the Dennis Harris report which can be found at
Exhibit 2B which exculpates Robert Foxworth. MARK LEE later admitted that
he was told in 2007 that Robert Foxworth did not commit this crime and he
appreciated that in 2007 that he had just received information that an innocent man
(Robert Foxworth) was in jail. He notified people in his office and then was contacted
about this in 2012 by John Thompson. MARK LEE told John Thompson on the
phone, as is described in Exhibit 3B, that MARK LEE had received information from
the informant that Robert Foxworth was innocent. MARK LEE said he would turn
over the Dennis Harris report, which can be found at Exhibit 2B, by the end of the
day. He did do that. Notwithstanding all of the above, on 2/21/13, MARK LEE
79
told Detective Cronin that the informant was debriefed, and that the
informant did not have relevant information regarding the murder of
Kenneth McLean. This misrepresentation alone delayed the exoneration of
Robert Foxworth for almost nine years.
• Exhibit 3D – Affidavit from the Confidential Informant dated 10/23/18

On October 23, 2018, I met with the confidential informant, who provided me with an
affidavit stating that he had reviewed Exhibits 2A, 2B and 2C and he was willing
to testify at an evidentiary hearing and give evidence of his first-hand knowledge
of Robert Foxworth’s innocence in the murder of Kenneth McLean if he were
granted immunity in connection with his own involvement in the murder of Kenneth
McLean. From 1993 – 2020, the informant was willing and available to provide
evidence of Foxworth’s innocence. From 2007 onward, MARK LEE had
knowledge of this evidence of Robert Foxworth’s innocence, and from 2012 – 2020
he was repeatedly and aggressively pressed by counsel for Foxworth to collect,
acknowledge, and timely produce the evidence he possessed of Robert Foxworth’s
innocence. MARK LEE never voluntarily did so, despite admitting he possessed
this evidence. He refused to produce to John Thompson what he promised to
produce in 2012. He then affirmatively obstructed the administration of
justice in 2013 when directly questioned by Detective Cronin about the existence
of evidence of Robert Foxworth’s innocence. He falsely claimed to Detective Cronin
that no such evidence existed, despite his acknowledgment to John Thompson a
mere five months earlier that he would seek the evidence that did exist in the form
of detective notes that he never obtained. It was only in 2018, pursuant to a court
order that issued for post-conviction discovery pursuant to Mass. Rule Crim. Pro.
30(c), that this evidence was obtained.
• Exhibit 3E- Order of Judge Christine Roach Asking Why the

Commonwealth Has Still Failed to Meet Its Discovery Obligations
dated 1/15/19
In this order, the judge orders the Commonwealth to do three things: The
Commonwealth is to file a DETAILED explanation as to (1) why the events detailed
and ordered in the hearing on 11/19/18 have not occurred; (2) the Commonwealth's
plan for accomplishing the ordered work, with precise dates; and (3) the earliest date
on which the Commonwealth will be prepared to address the court on next steps.
• Exhibit 3F – MARK LEE’s Explanation to the Court dated 1/22/19

This explanation complies with only #1 of 3 orders issued by Judge Christine Roach
• Exhibit 3G – Email Correspondence to MARK LEE dated 1/25/19

This email correspondence from John Thompson to MARK LEE is a follow-up to
Exhibits 3E and 3F asking whether MARK LEE plans to comply with the portion
Judge Christine Roach’s court order directing the Commonwealth to address: (2) the
Commonwealth's plan for accomplishing the ordered work, with precise dates; and
(3) the earliest date on which the Commonwealth will be prepared to address the
court on next steps.
o I note that John Thompson’s reference to a chuckle was sarcasm
but was not taken as such by MARK LEE
80
EXHIBIT 3A
81
82
EXHIBIT 3B
83
84
85
EXHIBIT 3C
86
Volume: III
Pages: 1-43
Exhibits: 0
SUFFOLK, SS SUPERIOR COURT

DEPARTMENT
* * * * * * * * * * * * * * * *
*
COMMONWEALTH OF MASSACHUSETTS *
* DOCKET NO. 9184CR97923
V *
*
ROBERT D. FOXWORTH *
*
* * * * * * * * * * * * * * * *
BEFORE THE HONORABLE CHRISTINE ROACH
APPEARANCES:
For the Commonwealth:

Suffolk County District Attorney's Office
One Bulfinch Place
Suite 300
Boston, Massachusetts 02114
By: Mark Lee, Assistant District Attorney
Teresa Anderson, Assistant District Attorney
For the Defendant:

Law Office of Amy M. Belger
841 Washington Street
Holliston, Massachusetts 01746
By: Amy Belger, Esquire
Boston, Massachusetts
September 27, 2018
Marsha Johnson
Approved Court Transcriber
87
III-2
1 (Court called to order.)
2 (Defendant present.)
3 (10:31 a.m.)
4 COURT OFFICER: Court, all rise. Courtroom 906 is
5 now in session. The Honorable Judge Roach presiding.
6 Please, be seated.
7 THE CLERK: For the record, we are calling number
8 one on today's list, the matter of the Commonwealth vs.
9 Robert Foxworth, on docket number 91 97923. Mr.
10 Foxworth is present in court.
11 This matter appears on the list for status
12 regarding any post-conviction discovery disputes,
13 status regarding any supplemental filings to the new
14 trial motion, and scheduling of any future dates. Will
15 the parties please identify yourselves for the record.
16 MS. ANDERSON: Good morning, Your Honor. Teresa
17 Anderson for the Commonwealth.
18 MR. LEE: Good morning, Your Honor. Mark Lee for
19 the Office of the District Attorney.
20 THE COURT: Good morning.
21 MS. BELGER: Good morning, Your Honor. Amy Belger
22 for Mr. Foxworth. My co-counsel John Thompson was
23 called away on a personal family matter so I'm here
24 myself.
25 THE COURT: Thank you for being here. Good
88
III-3
1 morning.
2 MS. BELGER: Sure, Your Honor.
3 THE COURT: Good morning, sir.
4 MR. FOXWORTH: Good morning.
5 THE COURT: So I saw that since we last met there
6 were I think two filings from the Commonwealth with
7 respect to discovery.
8 MS. ANDERSON: Yes. Yes, Your Honor.
9 THE COURT: Are we anticipating more?
10 MS. ANDERSON: There are a handful of documents
11 but nothing, nothing large. Approximately six pages,
12 two reports that need to be redacted that I received at
13 the end of last week from the Boston Police Department.
14 THE COURT: All right. So after those two
15 reports, approximately six pages, that would complete
16 what we were talking about as the item number 1? That
17 is to say, anything that is Rule 14 material that your
18 office or BPD has to your knowledge.
19 MS. ANDERSON: Yes, and it goes beyond what is
20 Rule 14 material and encompasses everything within the
21 Commonwealth's trial file. So, for example, notes of
22 the prosecutor regarding his opening and closing
23 statement were scanned and were provided. So it goes
24 well beyond what is Rule 14 discovery.
25 THE COURT: Well, your trial file, as I understand
89
III-4
1 the latest filing the Defense, also contains some of
2 the so-called Federal materials?
3 MS. ANDERSON: There are some documents, yes.
4 THE COURT: All right. Now with respect to the
5 parole materials, which were category two, my
6 recollection is that we received whenever the Parole
7 Board would give us and both sides have had an
8 opportunity to review, is that correct?
9 MS. ANDERSON: That's my understanding. I have
10 not reviewed them.
11 THE COURT: But they're available?
12 MS. ANDERSON: But they are available, as I
13 understand, yes.
14 THE COURT: All right. And then that leaves
15 potentially other items in category one that the DA's
16 Office here does not have but the Defense thinks it is
17 entitled to that would be in the custody of the Federal
18 Government?
19 MS. ANDERSON: I believe so.
20 THE COURT: All right. That's my memory of the
21 three categories that we've been working on.
22 MS. ANDERSON: I think I had the Boston Police
23 Department file as a category and not the parole
24 documents but that is the universe that we have. And I
25 don't think there's any questions presently about the
90
III-5
1 Boston Police file. I think that was resolved a -- two
2 years ago, a year and a half ago where --
3 THE COURT: Well is the Commonwealth intending to
4 file a Certificate of Compliance with respect to all of
5 these things?
6 MS. ANDERSON: I think it would be helpful, again,
7 to lay out as we're talking about all these categories
8 and everything that is done. I agree.
9 THE COURT: All right.
10 MS. ANDERSON: There are, again, the handful of
11 outstanding documents in the DA's Office file. I think
12 Parole is complete. As far as the Federal materials, I
13 think we have some discussions still in the works. And
14 then as to the BPD file, there were documents attached
15 to the defendant's motion for discovery that they
16 received from BPD in redacted form and requested in
17 unredacted form. And so several years ago I personally
18 took The BPD file, went through, and produced what was
19 in there in unredacted form. There were a number of
20 documents that the defendants had that were redacted
21 that I could not find in either the BPD file or the
22 DA's Office file. And at this point, the BPD file has
23 gone back to them.
24 THE COURT: Understood.
25 MS. ANDERSON: They are -- I haven't seen that in
91
III-6
1 a couple of years.
2 THE COURT: All right. So this back and forth is
3 one reason why I think it would be very helpful if,
4 when you're in a position to do so, the Commonwealth
5 file a detailed certification so that there is a clear
6 record for whoever is involved in this case going
7 forward, what you have done, what you have found, so
8 that -- and when you produced it so there can't be any
9 dispute about that.
10 MS. ANDERSON: Yes.
11 THE COURT: That would be helpful. Thank you.
12 MS. ANDERSON: Thank you.
13 THE COURT: Defense, I'm happy to hear from you.
14 MS. BELGER: Thank you, Your Honor. I'd like to
15 renew my application for bail based on the discovery
16 that was late produced by the Commonwealth that was
17 relevant to our argument on bail that supports Mr.
18 Foxworth, his factual innocence, if you would allow me
19 to do so.
20 THE COURT: Well you filed your motion, which I
21 respect.
22 MS. BELGER: I did.
23 THE COURT: I am not inclined to reconsider bail.
24 I read your motion but if you would like to make an
25 argument that's not in your papers or expand for the
92
III-7
1 record on why you think that's appropriate, I'm happy
2 to hear you.
3 MS. BELGER: I would like to do that, Your Honor.
4 THE COURT: Go ahead.
5 MS. BELGER: I understand from Attorney Thompson
6 that there is a police report from Detective Dennis
7 Harris from the Homicide squad of the Boston Police
8 Department that memorializes what happened when he and
9 another Detective and ADA Lee were in the room on a
10 Federal debriefing and Husi Joiner (phonetic), who was
11 one of the confidential informants from the Cinquegrana
12 letter that dates back to 1993, said unequivocally, as
13 he has been saying for years, that Mr. Foxworth was not
14 involved in the murder of Kenneth McLean and the reason
15 he knows that is because he was involved. And he has
16 been cooperative with this and he has been trying to
17 get the Government to focus on this and fulfill its
18 obligations to provide that information to Defense
19 Counsel for years. And for 12 years Mr. Lee has been
20 in possession of that information. The 2006 Cover
21 Letter from ADA Gallagher -- AUSA Gallagher provides
22 him with the information from Husi Joiner where he's
23 not even called CI-1 anymore, he's called Husi Joiner,
24 and he talks about how he knows that Mr. Foxworth
25 wasn't involved because he names these people. That
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1 was 12 years ago and that was just revealed on Tuesday
2 and that would have been relevant to the bail argument
3 because it is strong corroborative evidence of Mr.
4 Foxworth's actual innocence claim.
5 THE COURT: Well that's the part I don't
6 understand. I understand an argument that -- and of
7 course I'm not prejudging any of this, but I understand
8 an argument that I thought you were making earlier in
9 your pleadings. Going back a year or so it said, we
10 think this exists and we think it should have been
11 disclosed. That's one argument. It's a completely
12 separate arguing for me to say, based on what you have
13 told me, that Mr. Foxworth is actually innocent.
14 MS. BELGER: So what we have is, in terms of
15 evidence of his actual innocence, an affidavit from
16 Derek Hobson (phonetic) that was signed in 2008 and has
17 been part of the case that is something new. And I
18 understand Your Honor's, you know, reasoning on denying
19 bail saying many of the claims on the new trial motion
20 now they're a re-hash of things that have been already
21 litigated. What has not been litigated is anything
22 having to do with Derek Hobson's recantation of his ID
23 of Mr. Foxworth, which was central to the
24 Commonwealth's presentation of evidence at trial.
25 Another part of the evidence that is new is the Good
94
III-9
1 Citizen Report where it lists from an informant who
2 does look like a Federal agent because he knows what
3 Troy Logan, the co-defendant's street name is, he knows
4 what his arrest record is, and he has a Law Enforcement
5 beeper that he's communicating with the Government on
6 and he's saying Troy Logan is running around Codman
7 Square bragging that he is the shooter. The
8 Commonwealth's theory at trial was that Mr. Foxworth
9 was the shooter.
10 We have this -- they have this information and we
11 know that the trial prosecutor reviewed it and
12 considered it because we now have the notes that were
13 just turned over in 2018 in the trial prosecutor's
14 handwriting. And from there we have a police report
15 that also wasn't turned over, that Troy Logan's
16 father-in-law called and said I am pretty sure that
17 Troy Logan is involved in this murder of Kenneth
18 McLean. That was also not turned over.
19 So Mr. Foxworth then gets prosecuted on the
20 eyewitness identification of Dennis -- of Derek Hobson,
21 which is now recanted, and the incriminatory statement
22 of his co-defendant Troy Logan to the police where Troy
23 Logan says that Robert Foxworth was the shooter. That
24 happened on September 11, 1991. Troy Logan made that
25 statement to the police.
95
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1 What we didn't know at the time of trial, that we
2 now know now, is that many people told law enforcement
3 that Troy himself was the shooter. He has a powerful
4 incentive three months later to try to pin it on
5 Foxworth.
6 That motive for Troy Logan to try to pin it on
7 Foxworth in September 1991, when what appears to be a
8 Federal agent and his own father-in-law reported that
9 he was the shooter, would have been information that
10 Mr. Foxworth could have used at trial to impeach the
11 credibility of Troy Logan.
12 THE COURT: No, I understand that argument. But I
13 don't see that I, sitting here, many years post-trial
14 listening to what a new trial might look like, that's
15 not equivalent as a matter of law or as a matter of
16 fact in my mind to actual innocence today which would
17 support bail.
18 MS. BELGER: Your Honor, with respect to what we
19 still don't have from the Commonwealth. They have
20 admitted they have this report from Dennis Harris that
21 they still haven't turned over that says that the
22 Government knew that Husi Joiner was part of --
23 THE COURT: Are you talking about a police report
24 that I just heard about that's being redacted?
25 MS. BELGER: Yes. Okay. It -- this was eight
96
III-11
1 years ago at least.
2 THE COURT: So what argument are you making about
3 that to me today?
4 MS. BELGER: That --
5 THE COURT: With respect to remedy.
6 MS. BELGER: That the evidence that's coming forth
7 now, Mr. Foxworth was entitled to at least 12 years
8 ago. And he's been incarcerated for 12 years and
9 denied evidence that's been wrongfully withheld by the
10 Government that supports his new trial claim. And I
11 understand what you're saying, that you don't see it as
12 supportive of actual innocence at this point; it
13 certainly is evidence showing that the trial he
14 received was not fair because the Government didn't
15 turn over what they were supposed to turn over so that
16 he could defend himself --
17 THE COURT: But I'm not hearing the new trial
18 argument today, ma'am.
19 MS. BELGER: -- with the information that was
20 available. I understand.
21 THE COURT: We're not there yet because the
22 Defense told me that you wanted to be sure you had
23 everything that you wanted to use in order to
24 supplement your new trial motion before it would be
25 heard on the merits.
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III-12
1 MS. BELGER: I submit to you that it's relevant to
2 the bail.
3 THE COURT: No, I hear you say --
4 MS. BELGER: Because it's --
5 THE COURT: We're going back and forth between
6 both things.
7 MS. BELGER: We are. It's not only evidence of a
8 wrongful conviction, it's also evidence of a wrongful
9 incarceration. And in terms of preserving all of Mr.
10 Foxworth's rights and remedies at this point as to
11 what's gone on, that needs to be stated for the record
12 that his continued incarceration in light of the
13 withholding, is something that we argue is relevant to
14 bail.
15 THE COURT: Understood. I respect that argument
16 and that's why -- you told me you wanted to put it on
17 the record and now it's on the record.
18 MS. BELGER: A couple of additional things in
19 terms of bail for Mr. Foxworth that weren't put on the
20 record when we last argued bail is, in addition to the
21 programming that he has done since 2012 --
22 THE COURT: Excuse me, I'm not rehearing bail. So
23 I heard you about new materials that you said have been
24 discovered between the last argument and today, but I'm
25 not going to hear new arguments about things that exist
98
III-13
1 in Mr. Foxworth's situation because I'm not going to
2 reconsider bail today.
3 MS. BELGER: I understand. Okay. What we would
4 ask is from here it's -- it seems clear that we do need
5 access to the Federal discovery and the connection
6 between the Federal investigations into the murder of
7 Kenneth McLean.
8 THE COURT: Well, I will tell you that nothing's
9 clear to me about the Federal discovery at the moment
10 because -- you have to keep in mind that I respect that
11 you're steeped in this and you have a lot of -- you've
12 put a lot of thought into how the different materials
13 could be connected and what the chain of evidence is,
14 so to speak, but I'm not there yet. And I thought that
15 what we were going to do next if -- once we had
16 resolved the so-called trial file and the parole
17 materials, was to really focus on this Federal
18 material.
19 And as part of that, I thought that the
20 Commonwealth was engaging in some discussions with the
21 Federal people, for lack of a better term, and so let's
22 hear from someone on the Commonwealth's side about the
23 status of that. Thank you.
24 MR. LEE: All right. Your Honor, I'm happy to
25 address that now but I would like to be heard on a
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III-14
1 couple of the things that Ms. Belger mentioned,
2 particularly since there was an allegation of unethical
3 conduct on my part so I just want to clarify that
4 record. But, to your immediate question, I have spoken
5 with AUSA Neil Gallagher who indicated to me that the
6 report that I believe is being called the Gallagher/Lee
7 memorandum is the only report regarding Mr. Joiner's
8 statements that Mr. Foxworth was not a participant in
9 the crime. We are -- I have a -- I have not yet been
10 able to reach Mr. Heinrich (phonetic) from the U.S.
11 Attorney's Office who had a greater role in the Federal
12 investigation.
13 So I've explained to them, to the extent that you
14 are able to or willing, it would be helpful to us if
15 they could get us any documents, particularly that
16 might exculpate Mr. Foxworth, but that I understood
17 that because it was a larger scale Federal
18 investigation that they would have to draw the line at
19 some point particularly on the grounds of relevancy.
20 And as the Court is aware, they don't have to do
21 anything.
22 I'm trying to do this in a cooperative way with
23 Mr. Foxworth's attorney so that, if there is anything
24 of an exculpatory nature, we can get our hands on it.
25 I certainly don't think the U.S. Attorney's Office --
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III-15
1 and I don't want to speak for them, but I certainly
2 don't think that they would want to keep us from
3 anything that might shed light on Mr. Foxworth's
4 innocence, if that's applicable.
5 THE COURT: So I'm trying to understand what you
6 think the status of that discussion is so that we can
7 fairly and efficiently schedule how we're going to
8 proceed in the case.
9 MR. LEE: I consider my discussions with Mr.
10 Gallagher to be over, at least in terms of -- because
11 he said that we have everything that's responsive to
12 the request. In speaking to Mr. Thompson yesterday, he
13 indicated --
14 THE COURT: I'm sorry. Who is Mr. Thompson?
15 MR. LEE: Mr. Thompson is Mr. Foxworth's other
16 appellant attorney.
17 THE COURT: Oh, that Mr. Thompson.
18 MR. LEE: Yes, I'm sorry.
19 THE COURT: Okay.
20 MR. LEE: Mr. Thompson told me, he specified a
21 little bit more what he was looking for. He was
22 looking for any reports or memoranda that may have been
23 the source of the information in what he calls The
24 Frongillo Letter from Assistant U.S. Attorney, I think
25 it's Tom Frongillo.
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III-16
1 THE COURT: That's his name.
2 MR. LEE: Addressed to then First Assistant
3 District Attorney Jack Cinquegrana in my office at that
4 time.
5 THE COURT: Uh-huh.
6 MR. LEE: Mr. Thompson suggested to me that the
7 substance of that letter had to have come from some
8 other source, meaning reports or memoranda, and that is
9 why I called Mr. Heinrich.
10 THE COURT: Okay, so that's the Heinrich
11 connection, so to speak.
12 MR. LEE: Correct.
13 THE COURT: Okay. Sources for the
14 Frongillo/Cinquegrana correspondence.
16 THE COURT: I follow that. Thank you.
17 MR. LEE: And that I think is the thing that
18 remains to be done on my end is to make contact with
19 Mr. Heinrich on that score.
20 THE COURT: So I do want you to be able to correct
21 or speak to the record anything you want to speak to,
22 but let's stop for a moment on this.
23 MR. LEE: Yes.
24 THE COURT: And tell the Court how the work that
25 you're doing, which I appreciate and I'm sure the
102
III-17
1 Defense appreciates, but how that work is going to be
2 memorialized for purposes of -- for evidentiary
3 purposes. In other words, is there going to be some
4 kind of affidavit from someone that says, we have
5 searched this source and this is all we have, how's it
6 going to work?
7 MR. LEE: I'm not sure I know just yet. I'm
8 perfectly willing to file a pleading but it will, of
9 course, rely upon statements made to me by Mr.
10 Heinrich. So I think it's going to take some
11 discussion between myself and Mr. Heinrich as to what
12 he feels comfortable going into a state pleading.
13 THE COURT: Right.
14 MR. LEE: So if I could work that out with him,
15 I --
16 THE COURT: And Mr. Thompson.
17 MR. LEE: Yes, and Mr. Thompson as well, yes, and
18 Ms. Belger.
19 THE COURT: Okay. So back to my question of fair
20 estimate of time for accomplishing that piece.
21 MR. LEE: I think -- I don't know if I could have
22 the pleading filed in two weeks but I could certainly
23 have -- I think I could have my work with Mr. Heinrich
24 be done in two weeks. And then Mr. Thompson and I
25 talked about meeting on October 10 face to face so
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III-18
1 that --
2 THE COURT: Out-of-court meeting?
3 MR. LEE: Out-of-court meeting so that he could,
4 in effect, present his case to me because he had asked
5 me whether we would consider assenting to a bail
6 reduction and/or assenting to the new trial motion.
7 And what I -- I had said to Mr. Thompson on prior
8 occasions that I thought a good avenue for him to
9 pursue would be to present this case to my office's
10 Conviction Integrity Unit, which oversees any claims of
11 actual innocence and then does a top-down examination
12 of the case.
13 It appears that what we're doing is some facsimile
14 of that, except that I'm the only person who he's going
15 to present to or Ms. Anderson. I -- he has not yet
16 taken me up on my offer so that's --
17 THE COURT: So that's -- I mean, to the extent
18 that the parties can agree on a procedure that works,
19 of course I commend it. It just strikes me as a little
20 bit awkward, if the Defense is going to continue to
21 question your integrity in the background piece of this
22 information, for you actually to be the person to whom
23 they're making a proffer, for lack of a better word.
24 MR. LEE: That another reason why this -- the
25 Conviction Integrity Unit would probably be better. If
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III-19
1 necessary, I would even recuse myself.
2 THE COURT: Right.
3 MR. LEE: And -- but Mr. Thompson did take me up
4 on my offer to meet on October 10.
5 THE COURT: Okay.
6 MR. LEE: So I don't know if he has any -- if he
7 had any issues about my integrity, it appears that he's
8 still willing to meet with me.
9 THE COURT: So I don't want to stand in the way of
10 that, I just -- I'm trying to be practical about how
11 many different procedures we're going to have and how
12 long they're going to take.
13 MR. LEE: Yes. And I offered it because I'd
14 offered it in the past and I -- if there is a
15 possibility that Mr. Foxworth is innocent, I certainly
16 don't want to be the person to stand in the way of
17 getting to the bottom of it.
18 So I'm trying to expedite it in every way that I
19 know how and I think the most expedient way is to put
20 it in front of our Conviction Integrity Group, but
21 that's my opinion so.
22 THE COURT: Okay. So let me hear from the Defense
23 again with respect to --thank you, Mr. Lee. I'll give
24 you a chance in the end but I just want to hear --
25 MR. LEE: Yes.
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III-20
1 THE COURT: You know, it's my job at the moment
2 not to rule on the merits, I hope Mr. Foxworth
3 understands this, but to try to set up fair procedures
4 to get to the point that someone can rule on the
5 merits. And so I want to hear from the Defense about
6 what Mr. Lee just said with respect to what we've been
7 calling the Federal documents or the Federal materials,
8 the Federal piece of this. Ma'am.
9 MS. BELGER: Your Honor, I think it would be more
10 productive if Mr. Thompson and I were included in the
11 discussions with the Federal Government --
12 THE COURT: Well, ma'am -- excuse me for a moment,
13 but what might be productive and what is actually
14 required as a matter of law or Federal procedure are
15 two different things.
16 MS. BELGER: I understand. I'm just hearing
17 about, you know, desires to do everything we can do and
18 that occurs to me as something we could do.
19 THE COURT: Well it's something --
20 MS. BELGER: And I know it's not required.
21 THE COURT: Mr. Lee said he's doing everything he
22 can do.
23 MS. BELGER: I heard that.
24 THE COURT: But Mr. Lee is limited in what he can
25 ask the Federal agents to do.
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III-21
1 MS. BELGER: I think some of it is you need to
2 know what to ask and I believe that we do have a
3 context for a lot of the Federal piece of this that is
4 lacking and otherwise.
5 THE COURT: Well, it's a little bit awkward since
6 Mr. Thompson can't be with us today.
7 MS. BELGER: It is.
8 THE COURT: But it seems to me that -- I take your
9 point, but it seems to me that's part of the discussion
10 they should be having on October 10. Or you all should
11 be having on October 10, whoever's involved in that
12 meeting.
13 MS. BELGER: The other concern is that in the most
14 recent production, you know, that relates to the
15 Federal discovery and the representation that the
16 Gallagher report is all there is, is there's two fax
17 cover letters between, you know, a Federal prosecutor
18 and a Suffolk County DA saying that documents are
19 attached to the fax cover letters that have to do with
20 the McLean murder investigation and we don't have those
21 documents.
22 THE COURT: The documents that you --
23 MS. BELGER: Yes.
24 THE COURT: That you think by reference were
25 attached?
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III-22
1 MS. BELGER: Exactly.
2 THE COURT: All right.
3 MS. BELGER: So that's a concern with, you know, a
4 conclusion that we seem to have everything based on
5 what we're seeing here.
6 THE COURT: Well I don't think that anything's
7 changed in terms of the complexity of this. By which I
8 mean, that Mr. Lee is an officer of this court, he will
9 tell this court what he has done, what he thinks he can
10 do as a matter of law.
11 What the Feds do or don't do and whether or not
12 you would find it complete is a different issue that
13 we've been trying to work around for the moment so that
14 you can get as much as possible, rather than having a
15 full-fledged blockage by the Feds, which they're
16 capable of. Right?
17 So I, again, do not have the level of detail that
18 you do and the context that you have and I respect
19 that. But it seems to me that with respect to these
20 remaining details, since some have been resolved, it
21 would at least temporarily -- October 10 is only two
22 weeks away -- would help if there were another meeting
23 of Counsel to see how much of this you can iron out.
24 MS. BELGER: Yeah, I do think it's important to --
25 in terms of, you know, providing context to where we
108
III-23
1 are now that this would be the third meeting that we've
2 had with the Conviction Integrity Unit, such as it's
3 been named.
4 THE COURT: Oh, no, no, no. No, you haven't.
5 MS. BELGER: Yes, we have, Your Honor. In 2012
6 John Thompson met with ADA Lee, explained the case --
7 THE COURT: Okay. Can we just slow down for one
8 minute. ADA Lee is not part of the Conviction
9 Integrity Unit.
10 MS. BELGER: At the time he met with Attorney
11 Thompson, it's in our pleadings, and he said to
12 Attorney Thompson we are starting a Conviction
13 Integrity Unit. We're starting it in 2012.
14 THE COURT: Right, but --
15 MS. BELGER: And he -- and he said that --
16 THE COURT: Excuse me one moment, please. Okay.
17 I know a little bit about the Conviction Integrity
18 Unit, not a lot. I know what I see in the courtroom.
19 And so I think Mr. Foxworth needs to know that I've
20 seen some very honorable and detailed and thorough work
21 by the Unit.
22 There are people who have successfully been
23 exonerated by the Unit and you probably know something
24 about this, you've probably heard something about this.
25 It happens, so it's not as if the Unit doesn't have any
109
III-24
1 track record yet, even though it's relatively new. On
2 the other hand, the fact that the Unit exists and the
3 fact that there's a motion in this case is not the same
4 thing as having that Unit specially assigned to review
5 this entire case and, as far as I know, that hasn't
6 happened yet.
7 MS. BELGER: It happened in 2015, as is in our
8 pleadings between ADA Donna Patalano and John Thompson;
9 it's in our pleading. And he did a presentation of the
10 case. He followed up on March 16, April 8, April 14,
11 and June 29, and never got a response.
12 THE COURT: Well, see, I think you may be
13 mistaken. I understand Ms. Patalano has a role in some
14 cases, but it's not as if there would never be a
15 response from the Unit; that's not the way it works.
16 So, Mr. Lee, can you help me out with us?
17 MR. LEE: Yes. Your Honor, Mr. Thompson did meet
18 with me and did meet with Ms. Patalano to explain to us
19 some aspects of the case. He did not, did not present
20 to the Conviction Integrity Unit. I'm a member of the
21 Conviction Integrity Unit, it's a standing committee,
22 and our -- those are formal presentations where they're
23 invited in and they present to an entire group, our
24 entire group.
25 THE COURT: So why don't you -- if you can, since
110
III-25
1 I assume it's not a secret, why don't you explain how
2 one gets to that stage?
3 MR. LEE: It starts with some kind of
4 communication, sometimes it's a Rule 278A motion, a
5 claim of actual innocence, sometimes it's
6 correspondence, sometimes it's a phone call that says I
7 would like your Conviction Integrity Unit to look into
8 this particular case.
9 Then we make some determinations about whether
10 there has been an exhaustion of the appellate process,
11 what the posture of the case is, and then we invite the
12 attorneys -- attorney or attorneys to come in and
13 present to the Unit information, argument, whatever it
14 is that they have to persuade us that there is an
15 infirmity with the conviction. And then we meet, as
16 many times as we need to, to resolve the issue.
17 Sometimes that is a response to the presenters
18 that we've taken your information into consideration
19 and we've determined that we are not going to take any
20 action on our part or that we are going to take action
21 and here's the action that we're going to take.
22 THE COURT: Well, so help me out because I'm the
23 outsider here, when you say take action, when in that
24 process is someone or someone's, a group of people
25 actively reviewing the entire file.
111
III-26
1 MR. LEE: So we meet quarterly, we meet every
2 three months, and there's an agenda that is presented
3 every three months. Usually one person from the
4 Conviction Integrity Unit is assigned --
5 THE COURT: Assigned --
6 MR. LEE: -- to the case.
7 THE COURT: -- to do that job.
8 MR. LEE: Exactly.
9 THE COURT: Okay.
10 MR. LEE: And then during that three-month or
11 four-month interim, they will -- three-month interim,
12 they will do the work that's necessary. It might
13 involve, for instance, utilizing the resources of the
14 Boston Police Department Cold Case, Homicide Cold Case
15 Unit, and it's not just limited to homicides, it's
16 limited to any kind of case in which there's an
17 allegation.
18 THE COURT: Understood. No, that's what I would
19 have expected that the whole committee is not doing
20 this work, someone is doing it.
22 THE COURT: But -- so now help me out with what is
23 the problem here of communication that the Defense
24 thinks it's been in that process and you tell me it
25 hasn't?
112
III-27
1 MR. LEE: Well it has been in the process -- Mr.
2 Thompson -- I don't disagree with Mr. Belger. Mr.
3 Thompson has spoken to Ms. Patalano. I don't know the
4 substance of what that discussion was.
5 He's also spoken to me at various times going back
6 to 2012 about his thoughts and feelings on the case. I
7 encouraged him at various times, most recently
8 yesterday, to do a formal presentation to the
9 Conviction Integrity Unit. And I can't speak for him,
10 it hasn't been -- I haven't been taken up on that
11 offer.
12 THE COURT: It hasn't happened from your point of
13 view?
14 MR. LEE: That's correct. Now a number of the
15 issues that he has raised over the years have been the
16 subject of either post-conviction litigation or part of
17 the direct appeal. So there are some -- there are some
18 issues that have been raised and addressed by an
19 Appellate Court so.
20 THE COURT: No, I understand that.
21 MR. LEE: But the Conviction Integrity Unit looks
22 at it for, lack of a better word, de novo and we'll
23 look at anything, even if it's been previously
24 litigated.
25 THE COURT: From beginning to end?
113
III-28
1 MR. LEE: That's correct.
2 THE COURT: Including all the materials that are
3 subject to the motion that's pending?
4 MR. LEE: Yes.
5 THE COURT: Well it seems to me, from the Court's
6 point of view in terms of resources and fairness to Mr.
7 Foxworth, that there has to be a decision made in
8 relatively short order about whether there's going to
9 be a presentation to the committee and then I would
10 need to know more about the committee's process in
11 terms of timing. Because we're not going to have a
12 full scale review of this file going on in two places
13 at once. So who has -- who wants to offer to the Court
14 a proposal on how that's going to work? Yes, ma'am.
15 MS. BELGER: Your Honor, if we could have -- if I
16 could propose that we have a deadline for what needs to
17 be done with the Federal authorities to exhaust the
18 Federal discovery issue and what there is so that we
19 can get the discovery we need to support --
20 THE COURT: See, this is --
21 MS. BELGER: -- the case.
22 THE COURT: You're being a little bit
23 presumptuous, okay. I don't know that you are going to
24 get the discovery that you say you need. I think -- I
25 agree with you that we need deadlines for all of the
114
III-29
1 tasks we're trying to talk about here.
2 MS. BELGER: Yes.
3 THE COURT: But it could be, well be that the
4 deadline will come and go and you will still quarrel
5 with what you have from the Feds.
6 MS. BELGER: Right.
7 THE COURT: But I don't think that that means that
8 Mr. Foxworth shouldn't have an opportunity to present
9 what he has to the committee.
10 MS. BELGER: So long as we keep things moving in
11 terms of deadlines with what we're doing here, you
12 know, they can --
13 THE COURT: Well what we talked about doing here
14 seems to me -- and tell me if I have this wrong -- is
15 once the parties report that they've gone as far as
16 they can go in informal cooperation with respect to the
17 Federal materials, if the Defense remains unsatisfied,
18 I'm going to need a very focused, very specific, very
19 detailed explanation of what the remaining dispute is
20 and what the Defense is asking me to do and then I will
21 rule, as a matter of law, whether I can do it or not.
22 MS. BELGER: Okay.
23 THE COURT: But I don't think that that process
24 should necessarily hold up discussions with the DA's
25 Office.
115
III-30
1 MS. BELGER: Would Your Honor be willing to
2 consider doing what Judge Hinkle -- and I understand
3 there is a lack of really -- there's no power over the
4 Feds but Judge Hinkle did write a letter, you know,
5 from the Court in the Lamone Case.
6 THE COURT: I know what she did and the answer is
7 no. I think we've had that conversation before.
8 MS. BELGER: Okay.
9 THE COURT: So I'm interested in hearing from both
10 sides. I've heard this date of October 10, but I need
11 to have some more -- and before we talk about schedule,
12 let me say this, I am not inclined to bring Mr.
13 Foxworth in regularly given how much time it takes him
14 to get here and how little time we usually spend here
15 and how little progress we usually have to report here;
16 I just don't think it's a fair use of his time or the
17 resources of the Commonwealth.
18 So I want to be sure that any in-court schedule is
19 somehow planned in a way that is productive for
20 everyone. So I'm always happy to see you whenever you
21 think I need to see you, but I want to be sure that the
22 work gets done that I can't be part of before I see you
23 again. So it sounds to me like some time after October
24 10, I don't know how much time after October 10, the
25 parties would have to report to the Court, out of court
116
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1 in writing, the status of the so-called Federal
2 materials dispute. And it would probably be the
3 Defense's burden to tell me what you want me to do and
4 it doesn't mean that you need to file all kinds of new
5 pleadings.
6 You could direct me to where you think you've
7 explained it to me before and I'll be happy to go
8 through the file and pull out all those pleadings,
9 focus on it in a way that I haven't up until now detail
10 wise, and rule. But I still don't know what timeframe
11 you'd like for that.
12 MS. BELGER: I understood from John Thompson that
13 we were going to get the Dennis Harris report no later
14 than today. That may be something we need to come see
15 the Court over again, depending upon what's in it and
16 what it says, or we can just file from there.
17 THE COURT: Well I don't know what you mean about
18 why you would need to see the Court again over a
19 particular report.
20 MS. BELGER: Depending upon what of an exculpatory
21 nature is in it.
22 THE COURT: Vis-à-vis what? Renewing your motion
23 for bail or something else having to do with
24 preparation for the ultimate hearing on the merits of
25 your motion?
117
III-32
1 MS. BELGER: It's difficult to answer because we
2 don't have it yet. We may get it and say we don't need
3 to do anything.
4 THE COURT: Well you're not seeing me again
5 shortly, all right, because I can only devote so many
6 resources to this post-conviction matter and I think
7 that the Court is devoting substantial resources
8 already. So what we're going to do is schedule a date
9 on which I am going to hear argument on any remaining
10 disputes about Federal materials.
11 MS. BELGER: Maybe October 18, I think it's a
12 Thursday.
13 THE COURT: Well if you're not meeting until
14 October 10, do you really think this is all going to be
15 worked out by then?
16 MS. BELGER: In terms of a status of --
17 THE COURT: Well it's not --
18 MS. BELGER: -- where we are with the --
19 THE COURT: No, we're not having a status. Okay.
20 So let me repeat it again and see if I can be more
21 clear. I think we've had enough statuses about the
22 Federal materials.
23 What I want to know is, either the Federal
24 material question has been resolved or I need to hear
25 some modification of your original motion about it, and
118
III-33
1 I'll hear argument on the merits of whatever's left to
2 argue about. We're not going to have another status.
3 Okay.
4 So sometime -- I agree with you, sometime between
5 October 10 and November 15 or so is the timeframe, it
6 seems to me, but I just wanted to be sure that when you
7 say the 18th that's only a week after the meeting on
8 the 10th and so I'm just wondering if that's enough
9 time.
10 MS. BELGER: I think probably -- it's certainly
11 enough time for me if, you know, what we're going to
12 find out is that productive discussions have gone on
13 with the Feds so we know where we are. So maybe the
14 Commonwealth can suggest a date by which we should be
15 checking in with the Court.
16 THE COURT: Mr. Lee, do you have a suggestion for
17 the Court?
18 MS. BELGER: Just the 17th is the only bad day,
19 which is too soon.
20 MR. LEE: 17th of?
21 MS. BELGER: October.
22 MR. LEE: October. I'm going to take my cue from
23 the Court, Your Honor, and perhaps suggest the week of
24 November 5.
25 THE COURT: The week of November 5 should be fine
119
III-34
1 for the Court.
2 MR. LEE: And I don't have a -- I do have -- I
3 have a motion to suppress on a case of mine on the 6th
4 so if I could maybe suggest the 8th or the 9th, a
5 Thursday or Friday.
6 THE COURT: Friday morning, the 9th of October --
7 November?
8 MR. LEE: That's -- that works for the
9 Commonwealth.
10 MS. BELGER: Yes, Your Honor. That works.
11 THE COURT: Counsel, is this a hearing at which
12 you're going to require your counsel's -- your client's
13 presence?
14 MR. LEE: I'm sorry, Your Honor. Was the Court
15 talking to --
16 THE COURT: I'm asking Defense Counsel.
17 MS. BELGER: No, Your Honor.
18 THE COURT: All right, so we can do it at 9:30
19 then I think. Is that -- are you available to be here
20 by 9:30, ma'am? You're usually here early.
21 MS. BELGER: Yes. Yes, Your Honor.
22 THE COURT: Okay. So 9:30 on October 9, which is
23 a Friday morning, a hearing on any remaining motion
24 with respect to Federal materials. By that date, I'm
25 also requiring both sides to report to the Court on the
120
III-35
1 status of any request by the Defense to present to the
2 committee. Mr. Lee, back to you.
3 MR. LEE: Your Honor, just -- and I'm mindful of
4 the Court's time but I do feel like I need to --
5 THE COURT: No, you told me that you wanted to put
6 something on the record about the representations and
7 that's -- it's your turn to do that now.
8 MR. LEE: Ms. Belger suggested in her oral
9 argument and I know it's suggested in the pleadings. I
10 did have a conversation with Mr. Thompson about the
11 contents of the pleadings.
12 The suggestion is that I somehow had possession of
13 information that I either sat on or ignored for 12
14 years before Counsel was able to obtain that
15 information. And I think it's -- that is not entirely
16 accurate and it's somewhat misleading and I think there
17 needs to be some backdrop for this.
18 In 2006 I was working on a homicide investigation,
19 it was the murder of an individual by the name of Kyle
20 Andrews. I was informed by the U.S. Attorney's Office
21 through detectives at the Boston Police Department that
22 they had just recently debriefed an individual by the
23 name of Husi Joiner, and Mr. Joiner had information on
24 the Kyle Andrews homicide.
25 In 2006, I had no idea who Mr. Foxworth was, I had
121
III-36
1 no idea who Mr. MacLean was, I had no knowledge of
2 anything having to do with that case. I attended the
3 debriefing of Mr. Joiner in an effort to obtain
4 information on the Kyle Andrews homicide.
5 At that debriefing Mr. Joiner said to me some
6 words to the effect of, you know, that guy, my boy,
7 Robert Foxworth, he didn't do that crime. I had no
8 idea what he was talking about so I obtained as much
9 information from him as I could and -- perhaps no good
10 deed goes unpunished -- I came back to my office,
11 ordered the file for the case, and notified at the time
12 the first assistant or -- I can't specifically remember
13 who -- that I had just come back from a proffer in
14 which some guy was saying that there was an innocent
15 man in jail. That case then became assigned. Now I
16 learned subsequently --
17 THE COURT: Excuse me, what case became assigned
18 and to whom?
19 MR. LEE: Well to look into the Robert Foxworth,
20 the allegation that the -- so Mr. Foxworth at that time
21 had been convicted and there'd been a trial. I didn't
22 know anything beyond that.
23 THE COURT: Okay. So someone else in your office
24 was assigned to look into that --
25 MR. LEE: Yes. Now --
122
III-37
1 THE COURT: -- piece of information?
2 MR. LEE: Yes. And I did not know at the time
3 what the state of any appellate litigation was. I
4 simply notified the individuals that needed to be
5 notified to have that case assigned. I was contacted
6 for the first time in 2012 by Mr. Thompson.
7 I did not know that there was any ongoing
8 post-conviction litigation with Mr. Foxworth, I was
9 simply acting on what little Mr. Joiner had said to me.
10 When I learned that Mr. Thompson was involved in the
11 post-conviction litigation, I told him on the phone
12 that I had had a proffer with Mr. Joiner and Mr. Joiner
13 was alleging that Mr. Foxworth was innocent.
14 That information was turned over as soon as I knew
15 there was somebody involved in the Foxworth litigation;
16 I did not sit on that information. The report that was
17 faxed to me by Mr. Gallagher was not faxed to me to
18 give me information on Robert Foxworth, it was faxed to
19 me to give me information on Kyle Andrews. I -- when I
20 read that report, I was looking at it for the
21 information that it had on Kyle Andrews. When I
22 learned of this information, I conveyed it immediately
23 to Mr. Thompson --
24 THE COURT: Okay. Let's slow down for a minute
25 because you're talking about information in a generic
123
III-38
1 way I'm having trouble following you.
2 MR. LEE: Yes.
3 THE COURT: I understand you had this phone
4 conversation with Mr. Thompson in 2012.
5 MR. LEE: Yes.
6 THE COURT: And you told him about the Joiner --
7 MR. LEE: Correct.
8 THE COURT: -- situation.
9 MR. LEE: Correct.
10 THE COURT: The Gallagher report.
11 MR. LEE: Yes.
12 THE COURT: Which was faxed to you.
13 MR. LEE: In 2006.
14 THE COURT: In 2006, you were looking at for
15 Andrews.
16 MR. LEE: That's why it was sent to me because --
17 THE COURT: Right.
18 MR. LEE: -- anticipation of --
19 THE COURT: But did it also contain reference to
20 Foxworth?
21 MR. LEE: It did but I -- I don't know when I
22 first laid eyes on that. I can tell you I know now --
23 I now know that it's in there. But it is, for all
24 practical purposes, the exact same thing that Mr.
25 Joiner then said to me in person.
124
III-39
1 THE COURT: Okay. So you're saying that that --
2 that's what you remembered about the Foxworth story
3 from Joiner and that's what you told Thompson when you
4 first talked to him?
5 MR. LEE: Correct. And so to suggest that I was
6 sitting on it or that I didn't turn it over, I think is
7 misleading because as soon as I knew that there was an
8 individual to whom I could give that information, I
9 did. I didn't provide the report because, quite
10 frankly at that time, I didn't -- I didn't even recall
11 the report because the Kyle Andrews information turned
12 out to be not particularly useful and so I just -- I
13 didn't really do anything with it but I conveyed the
14 information to Mr. Thompson.
15 The Dennis Harris report that was referenced by
16 Ms. Belger is a report that Detective Harris made from
17 the same debriefing that I attended. And I can tell
18 the Court and represent to Ms. Belger that she will
19 have that by the end of business today.
20 It also -- meaning the report, also contains what
21 Mr. Joiner said about the Kyle Andrews murder, that
22 will be redacted, but there is a portion of there,
23 which again is a reiteration of what Mr. Joiner said
24 about Mr. Foxworth.
25 THE COURT: Okay. So I'm not at all interested in
125
III-40
1 running your office or learning really how it runs for
2 any general purpose but I'm trying to understand what
3 happens after -- to the extent you know, after you
4 convey this, quote-unquote, tip for lack of a better
5 phrase about Foxworth, do you know who then gets
6 assigned to investigate that?
7 MR. LEE: Yes. There were various people who are
8 working on it, one of whom is Ms. Patalano.
9 THE COURT: Uh-huh.
10 MR. LEE: One of whom was Mr. Ditkoff. And I kept
11 a general eye on it because in 2008 I became a Deputy
12 Chief of the Homicide Unit so I had general oversight,
13 and I had also spoken to Mr. Thompson 2012 going
14 forward.
15 THE COURT: No, I was wondering between 2006 and
16 2012.
17 MR. LEE: Those are the two people that I would --
18 THE COURT: Patalano and Ditkoff?
20 THE COURT: Okay. So they were, as far as --
21 MR. LEE: Oh, I'm sorry. I apologize. It was
22 Gretchen Lundgren and Mr. Ditkoff. Ms. Patalano was
23 not -- had later returned to the office after --
24 THE COURT: Okay. So sometime between 2006 and
25 2012 these other two people had something to do with
126
III-41
1 looking at material on Foxworth?
2 MR. LEE: Yes.
3 THE COURT: As far as you know.
4 MR. LEE: Yes. And if I understand correctly,
5 during that timeframe Mr. Foxworth's Federal habe was
6 still pending. And I believe the AG's Office was
7 handling that matter.
8 THE COURT: Was handling the Federal habe?
9 MR. LEE: Correct.
10 THE COURT: Right. Okay. Thank you. Is there
11 anything further we can do today, Counsel? No.
12 MS. BELGER: I don't think so, Your Honor.
13 THE COURT: I see heads shaking but the answer is
14 no? All right. So ordered, Mr. Clerk.
15 THE CLERK: As the matter of Commonwealth vs.
16 Robert Foxworth, this matter is continued by agreement
17 to November 9, 2018 in this session, courtroom 906 at
18 9:30 a.m. for further post-conviction motion hearing
19 relative to remaining Federal dispute materials and
20 status regarding a request to the committee. Mr.
21 Foxworth will be excused on that date.
22 THE COURT: Thank you, everyone.
23 MR. LEE: Thank you.
24 THE COURT: Court's in recess on this case.
25 COURT OFFICER: All rise.
127
III-42
1 (Court recessed at 11:21 a.m.)
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11
12
13
14
15
16
17
18
19
20
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22
23
24
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128
EXHIBIT 3D
129
130
131
EXHIBIT 3E
132
DOCKET NUMBER
Trial Court of Massachusetts
CLERK'S NOTICE The Superior Court
9184CR97923
CASE NAME:
Maura A. Hennigan, Clerk of Court
Commonwealth vs. Robert D Foxworth
TO: COURT NAME & ADDRESS

Amy Belger, Esq.
Suffolk County Superior Court - Criminal
Law Office of Amy M. Belger Suffolk County Courthouse, 14th Floor
841 Washington St Three Pemberton Square
Holliston, MA 01746 Boston, MA 02108
You are hereby notified that on 01/15/2019 the following entry was made on the
above referenced docket:
Endorsement on Defendant Foxworth's Status Report and Motion for Order Rescheduling January 18,
The January 18 event is cancelled. The Commonwealth is to file a DETAILED explanation as to (1)
why the events detailed and ordered in the hearing on 11/19/18 have not occurred; (2) the
Commonwealth's plan for accomplishing the ordered work, with precise dates; and (3) the earliest
date on which the Commonwealth will be prepared to address the court on next steps. No hearing or
conference will be scheduled until the Commonwealth provides this information in writing to the
Court, which writing shall be filed in Courtroom 906 no later than January 22, 2018.
DATE ISSUED ASSOCIATE JUSTICE/ ASSISTANT CLERK SESSION PHONE#
01/15/2019 Christine M Roach 133

Date/Time Printed: 01-15-2019 17:30:47 SCR016\ 06/2014
DOCKET NUMBER
9184CR97923
CASE NAME:

John M Thompson, Esq.
Thompson & Thompson PC Suffolk County Courthouse, 14th Floor
1331 Main St Three Pemberton Square
Suite 320 Boston, MA 02108

DOCKET NUMBER
9184CR97923
CASE NAME:

Mark Tan Lee, Esq.
Suffolk County District Attorney Suffolk County Courthouse, 14th Floor
One Bulfinch Place Three Pemberton Square
Boston, MA 02114 Boston, MA 02108

DOCKET NUMBER
9184CR97923
CASE NAME:

Teresa K Anderson, Esq.
Suffolk County District Attorney's Office Suffolk County Courthouse, 14th Floor
One Bulfinch Place Three Pemberton Square
Suite 300 Boston, MA 02108
Boston, MA 02114

DOCKET NUMBER
9184CR97923
CASE NAME:

File Copy
Suffolk County Courthouse, 14th Floor
, Three Pemberton Square
Boston, MA 02108

EXHIBIT 3F
138
SUFFOLK, SS. SUPERIOR COURT DEPARTMENT

NO. 097923
COMMONWEALTH
v.
ROBERT FOXWORTH
COMMONWEALTH’S DETAILED EXPLANATION REGARDING EVENTS OF

NOVEMBER 19, 2018
Now comes the Commonwealth in the above-captioned matter and respectfully
files the following summary of events regarding the defendant’s request for documents
in the possession and control of the United States Attorney’s Office.
1. On October 25, 2018, Attorney John Thompson, Assistant United States

Attorney Ted Heinrich, Assistant District Attorney Teresa Anderson, and the
undersigned met at the offices of the United States Attorney to give Mr.
Thompson an opportunity to make a request for any materials relevant to the
investigation of the death of Kenneth McLean that might be in the possession
of the United States Attorney’s Office.
2. On October 26, 2018, I received an email communication from AUSA Heinrich

informing me that the relevant case files had been requested and that the
files should be delivered to the US Attorney’s Office by Wednesday, October
31. I communicated this information to Mr. Thompson by email on
November 2, 2018.
3. On November 8, 2018, I received an email from AUSA Heinrich’s paralegal in

which he stated that he had “plenty of boxes to go,” but that he had located
a five-page fax from ADA Fran O’Meara to AUSA Joseph Walker, which he
attached in the email.
4. On November 9, 2018, I provided a copy of the attachment to Mr.

Thompson.
139
5. On November 26, 2018, Mr. Thompson inquired regarding the status of AUSA
Heinrich’s file review. I informed Mr. Thompson that my father had passed
away on November 8, that I had been out of the state to attend the funeral,
and that I had not had any communication with AUSA Heinrich since
November 8.
6. On December 12 and December 19, Mr. Thompson inquired by email whether

I had had any further communication with AUSA Heinrich. I responded on
December 19 that I had not. I explained to Mr. Thompson that I had been
occupied with hearings on two other matters and that my office was also in
the process of undergoing a change in administration.
7. On January 4, 2019, Mr. Thompson inquired by email whether there was

anything to report regarding AUSA Heinrich’s file review.
8. On January 7, I sent an email to AUSA Heinrich inquiring about the status of

his file review.
9. AUSA Heinrich responded that he should be able to get me something “this

week.”
10. I communicated AUSA Heinrich’s estimate to Mr. Thompson by email.
11. On Friday, January 11 (the end of the week referenced in paragraph 9

above), Mr. Thompson inquired by email whether I had heard from AUSA
Heinrich. I had not heard back from AUSA Heinrich, and I communicated
that fact to Mr. Thompson. I also informed Mr. Thompson that I would send
a reminder to AUSA Heinrich, and I did so by email dated the same day
(January 11).
12. In emails exchanged on Saturday, January 12, AUSA Heinrich and I agreed to
talk by telephone on Monday, January 14.
13. On Monday, January 14, I spoke to AUSA Heinrich, who informed me that he
had not come across any materials that could be construed as the primary
source for information attributed to “C1” and “C2” in a letter sent by AUSA
Tom Frongillo to then-ADA Jack Cinquegrana. I communicated this
information to Mr. Thompson in a subsequent telephone call.
14. AUSA Heinrich made reference to some other information that he had come
across: a FOIA request that had been made regarding two individuals known
to the parties; an internal memo that contained a letter from Robert
Foxworth; and information from an individual identifying individuals present
at the time Kenneth McLean was shot (defendant Foxworth not being
named).
140
15. During my conversation with AUSA Heinrich, I reminded him that the parties
were due in court on January 18 for status regarding his file review, and also
that Mr. Thompson suggested that continuing the status date for one week –
to January 25 – might give AUSA Heinrich any additional time he might need.
I asked AUSA Heinrich whether he could finish his review by January 25, and
he indicated that he could.
Respectfully Submitted
For the Commonwealth,
RACHAEL ROLLINS
DISTRICT ATTORNEY
By: /s/ Mark Lee

MARK LEE
One Bulfinch Place
Boston, MA 02114
(617) 619-4240
Dated: January 22, 2019
CERTIFICATE OF SERVICE
141
I hereby certify under the pains and penalties of perjury that a copy of the attached
Commonwealth’s Memorandum of Law in Opposition to Defendant’s Motion to Suppress
Defendant’s June 28, 2017 Statement of Police was sent electronically by email to
counsel for defendant as follows:
Elliot Weinstein, Esq.

Elliot@weinsteinlaw.com
Mark Lee
Dated: November 5, 2018
142
EXHIBIT 3G
143
11/1/22, 11:10 AM Gmail - Commonwealth v. Foxworth
Amy Belger <appellatedefender@gmail.com>
Commonwealth v. Foxworth
5 messages
John Thompson <habeasjohn@ttpclaw.com> Fri, Jan 25, 2019 at 2:28 PM

To: "Lee, Mark (DAA)" <mark.lee@state.ma.us>
Cc: Amy Belger <appellatedefender@gmail.com>
Mark: Two questions –
1. Will you send me a fresh copy of the five-page document Ted Heinrich attached to his November 8, 2018
email to you, together with a print-out of his email?
2. Do you plan to file anything further responding to the other elements of Judge Roach’s January 15
order?
Regards,
John Thompson
Lee, Mark (DAA) <mark.lee@state.ma.us> Fri, Jan 25, 2019 at 3:39 PM

To: John Thompson <habeasjohn@ttpclaw.com>
Cc: Amy Belger <appellatedefender@gmail.com>, "Anderson, Teresa (DAA)" <teresa.anderson@state.ma.us>
Hi John,
I will definitely take care of #1.
As to #2, I don’t think so, but when would you like a definitive answer to that question?
Best,
ML
[Quoted text hidden]
John Thompson <habeasjohn@ttpclaw.com> Fri, Jan 25, 2019 at 3:50 PM

To: "Lee, Mark (DAA)" <mark.lee@state.ma.us>
Mark: I can’t resist a Friday afternoon chuckle. I’ll just take the first item on the menu.
John
144
https://mail.google.com/mail/u/0/?ik=596b079f19&view=pt&search=all&permthid=thread-f%3A1623661756705614089&simpl=msg-f%3A1623661756705614089… 1/2
11/1/22, 11:10 AM Gmail - Commonwealth v. Foxworth
Lee, Mark (DAA) <mark.lee@state.ma.us> Fri, Jan 25, 2019 at 4:00 PM
To: John Thompson <habeasjohn@ttpclaw.com>
Ha! Will do.
>
145
https://mail.google.com/mail/u/0/?ik=596b079f19&view=pt&search=all&permthid=thread-f%3A1623661756705614089&simpl=msg-f%3A1623661756705614089… 2/2
EXHIBIT 4
Exhibit 4: DOCUMENTS RELATED TO NOTICE GIVEN TO THE

SUFFOLK COUNTY DISTRICT ATTORNEY’S OFFICE OF
MARK LEE’S MISCONDUCT
• Exhibit 4A – Motion for Post-Conviction Discovery dated 4/18/17

This is the first time (but not the only time) I accused MARK LEE of
professional misconduct in a publicly filed court document or
proceeding, putting the court and the Suffolk County District Attorney’s
Office on notice of MARK LEE’s withholding of exculpatory evidence.
• Exhibit 4B - Timeline of Notice and Disclosure of Withholding

of Exculpatory Evidence
• Exhibit 4C – Affidavit of Amy M. Belger dated 10/6/17

This affidavit references the assistance provided to me by ADA Spencer
Lord when he was Deputy General Counsel of the Parole Board (as
indicated on the Exhibit 4B timeline) in obtaining exculpatory evidence
relative to the innocence claims and eventual exoneration of Robert
Foxworth.
146
EXHIBIT 4A
147
SUFFOLK, ss SUPERIOR COURT

CRIMINAL
ACTION
NO.: 097923
______________________________
)
COMMONWEALTH )
)
v. )
)
ROBERT FOXWORTH )
______________________________)
MOTION FOR POST-CONVICTION DISCOVERY

PURSUANT TO MASS. R. CRIM. PRO. 30(c)(4)
Now comes the defendant in the above entitled action
and moves, pursuant to Mass. R. Crim. Pro. 30(c)
(4), that the Court order post-conviction discovery to
be provided to the defendant by the Commonwealth.
As reasons therefore, the defendant states that
the Commonwealth has knowingly withheld exculpatory
evidence for many years in this case, the
details of which are set forth in the accompanying
memorandum of law and record appendix. The Requested
Discovery is contained in the Addendum to this motion.
This motion is filed contemporaneously with a
motion for a new trial pursuant to Mass. Rule Crim. Proc
30(b), the contents of which are incorporated herein by
reference.
Accordingly, the defendant respectfully requests
148
149
SUFFOLK, ss SUPERIOR COURT

CRIMINAL
ACTION
NO.: 097923
______________________________
)
COMMONWEALTH )
)
v. )
)
ROBERT FOXWORTH )
______________________________)
MEMORANDUM OF LAW IN SUPPORT OF

MOTION FOR POST-CONVICTION DISCOVERY
PURSUANT TO MASS. R. CRIM. PRO. 30(c)(4)
BACKGROUND
Foxworth stood trial for first-degree murder and was
convicted of second-degree murder in the shooting death of
Kenneth McLean. The essential facts of the case are set
forth in the Defendant’s Motion for a New Trial Pursuant
to Mass. R. Crim. P. 30(b), filed contemporaneously with
this motion for post-conviction discovery, and
incorporated herein by this reference. It is sufficient to
point out here that the Commonwealth’s factual theory of
the case was that Foxworth shot McClean, aided and abetted
1
by his co-defendant, Troy Logan. 3-30-92Tr:75

1
Documents contained in the Record Appendix to this motion
are referenced as “R.[page #]”. Documents sought obtain by
court order via this motion from the Commonwealth are
listed in the Addendum of this motion and are referred to
3
150
At some point post-conviction, Foxworth’s trial
attorney, Earl Howard, destroyed Foxworth’s trial file,
after repeatedly reneging on promises to provide it. In
response to a complaint that Foxworth filed with the Board
of Bar Overseers, Howard was cautioned by letter from Bar
Counsel Attorney Bruce T. Eisenhut for that infraction.
Eisenhut’s letter states that he obtained a copy of the
Suffolk Superior Court file from the clerk of court and
furnished a copy to Foxworth in August 2000. Bar Counsel
did not keep a copy of what was sent to Foxworth. R.1 Over
the years, whatever file documents Foxworth has been able
to retain while being transferred to various facilities
within the DOC system, have been provided to counsel. R.1
For years, Foxworth has unsuccessfully tried to
obtain a copy of the pre-trial discovery turned over to
Howard by the Suffolk DA’s Office. He has additionally
sought from the DA’s Office unredacted copies of police
reports obtained via public records requests that appear
to be exculpatory in nature. Furthermore, he has sought
discovery from the DA’s Office regarding information it
obtained during a debriefing of two federal informants in
as “The Requested Discovery”. Transcripts from Foxworth’s

jury trial are cited as “[date]Tr:[page#]”.
4
151
2010-11 who both stated Foxworth was not involved in
the murder of McLean. This information, obtained during
the debriefing, was in follow-up to information the DA’s
Office received in 1993 from the United States Attorney’s
Office indicating Foxworth is innocent. R.16-29
FACTS RELEVANT TO THIS MOTION
On June 29, 1993 Assistant United States Attorney
Thomas Frongillo wrote a letter to Suffolk County
Assistant District Attorney John Cinquegrana indicating
federal agents had been told, through a federal
investigation Frongillo was conducting with the assistance
of informants, that Foxworth was not involved in the
murder of Kenneth McLean.2 (“The Frongillo letter”)
Frongillo conveyed through his letter to Cinquegrana how
the first confidential informant(CI-1) had described a
meeting he attended on the day of McLean’s murder during
which Ronnie Christian (Foxworth’s co-defendant), and a
man named Steven Sealey, and others, planned to kidnap and
2
The Frongillo Letter appears to be related to a May 31,
1991 message left for Boston Police Detective Flynn, by
Special Agent James Sabillia, one week after the murder,
saying Sabillia had information regarding the McLean
murder, indicating federal investigators were uncovering
information regarding that homicide essentially from the
beginning of the Boston PD investigation, and that they
were sharing that information with BPD as it developed. See
p.7, infra. R.2
5
152
rob McLean at gunpoint. Sealey discussed shooting McLean.
Foxworth was not at this meeting. The alleged motive was
to retaliate against McLean for ordering a hit on
Christian.3
CI-1 described how at this meeting, Sealey gave a gun
to a man named “T-Lover” or “Tony”, and instructed T-Lover
and three others to find McLean, kidnap him, and steal his
drugs. The four men left the meeting with a gun, and
shortly thereafter McLean was shot and killed. R.3
CI-1, who was not a witness to the shooting, saw T-
Lover a couple of days later in Boston. T-Lover admitted to
CI-1 that he killed McLean, stating he had to do so because
McLean was trying to escape and McLean knew him. About a
month later, T-Lover told CI-1 that he may have to kill
Christian because he heard Christian had been charged with
McLean’s murder and T-Lover was afraid Christian might
incriminate him. R.3-4
According to heavily redacted BPD records disclosed to
3
On May 22, 1991 Christian was attacked by two armed men
at 3 Fairfield Street in Dorchester and suffered gunshot
wounds to his legs. R.5-6 Interestingly, in 2006, the
facts of this incident were presented to the Parole Board
as the Official Version of the crime Foxworth was convicted
of based upon a July 17, 1992 memorandum prepared by a
lawyer in the Attorney General's Office. R.7-13
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Foxworth in response to a public record request he made,
on May 25, 1991 a member of the BPD Anti-Gang Violence Unit
(AGVU) was contacted by an informant (whom he referred to
in his report as "good citizen") who told him that a tall,
thin, light-complexioned black male, whom the informant
identified by both street and legal name, had been bragging
about having killed “Kenny Mack” on May 23, 1991. (“The
Good Citizen Report”) The Good Citizen told the AGVU
reporting officer that the braggart had been arrested on
Southern Avenue in Codman Square in January on a firearms
offense and charged in Roxbury District Court. The
reporting officer said in The Good Citizen Report that he
had confirmed these facts and obtained an August 27, 1990
arrest photo of the braggart from the BPD Identification
Unit. The reporting officer stated further that on May 28,
1991 The Good Citizen had made a beeper call to him to
reiterate his information and urge BPD investigation. The
reporting officer submitted The Good Citizen Report that
day for investigation by AGVU and the Homicide Unit. R.14-
15 The prosecution team did not disclose this evidence to
any of the defendants before trial and has not disclosed
either The Good Citizen Report or any evidence that BPD or
the Suffolk DA's Office ever pursued it.
Frongillo also informed Cinquegrana that the second
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confidential informant (CI-2) stated McLean used to sell
cocaine with Sealey and Christian, but a dispute arose
that ended or spoiled the relationship. After the split,
CI-2 heard Sealey and Christian discuss robbing McLean. In
November 1990, CI-2 was with a group that included Sealey
and Christian, and two members of the group robbed
McLean’s girlfriend at gunpoint and stole approximately
$23,000. After this robbery, Christian told CI-2 he had
robbed McLean on a previous occasion, and had also stolen a
kilogram of cocaine from McLean. R.3-4
After Christian was shot on May 22, 1991, he told CI-2
that McLean’s worker had shot him to retaliate for the
robberies. Christian told CI-2 that he was going to shoot
McLean. After McLean was murdered, Sealey told CI-2 that
“T” had killed McLean and that Sealey and Christian were
leaving Boston. CI-2 was not a witness to the murder. R.4
In his 1993 letter, Frongillo invited Cinquegrana to
contact him to obtain more information regarding this
exoneration of Foxworth, as he made clear the information
provided in the letter was simply a summary of all the
information provided by the confidential informants. R.4
In 2012, Attorney John Thompson contacted Attorney
Frongillo about his letter to Cinquegrana; Frongillo told
Thompson he believed that files kept by the United States
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Attorney's office would contain documentation that would
substantiate Frongillo's statements in the letter. He
told Thompson that AUSA Theodore Heinrich had been in the
USAO in 1993 and was still working there. Thompson
contacted Heinrich and requested that the USAO retrieve
its records and disclose them for Foxworth's benefit.
Heinrich agreed to retrieve the records and have them
reviewed. A paralegal in the USAO, Carol Dupont, confirmed
to Thompson that she had been given this assignment, but
she never disclosed any information regarding her search
and eventually quit responding to Thompson's inquiries. AUSA
Heinrich has also not responded to 2016 efforts by Belger
to obtain these same records. R.16-23
More than twenty-six years later, the Suffolk County
District Attorney’s Office has still not bothered to
investigate this compelling evidence of Foxworth’s
innocence. R.27-29
Furthermore, the prosecution was on notice, prior to
trial, that the feds may have information on the McLean
murder that was exculpatory to Foxworth. On May 21, 1991
Boston Police Detective Flynn received a phone call from
DEA Agent James Sabillia, and Sabillia provided Flynn with
his beeper number as contact information. R.2 The message
Sabillia left for Flynn was that Sabillia “has info on
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McLean case” (“The Sabillia Message”). Foxworth has no
evidence suggesting this phone message was turned over to
the defense prior to trial. Nothing in the extensive record
of this case indicates that Flynn, or any other member of
the BPD, ever followed up with Sabillia in order to
investigate what information Sabillia had concerning the
McLean murder. R.2 It is reasonable to infer that Sabillia,
who worked with Frongillo, had information similar to that
disclosed by Frongillo in 1993.
The Suffolk County DA’s Office received further
confirmation of the fact that the feds had exculpatory
information related to the murder of McLean in 2010 and
2011 when C-1 was repeatedly debriefed by the feds in the
unsolved murder of Kyle Andrews in the presence of BPD
Detectives Dailey and Harris and Suffolk County Assistant
District Attorney Mark Lee. Following that debriefing, CI-1
told Foxworth he talked about the McLean murder during the
debriefing and exonerated Foxworth. The DA’s Office has not
responded to requests to provide this information to
Foxworth. R.3-4,24-29
In September 2012, Attorney John Thompson met with ADA
Lee, who confirmed the McLean murder was discussed during
the Kyle Andrews debriefing session with CI-1, and Lee
recalled that one of the BPD detectives present was taking
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notes. Lee promised to follow-up with Thompson regarding
these notes and any follow-up reports. Over three years
later, despite several requests, Lee has not made good on
that promise to provide this known exculpatory evidence.
R.24-29
On March 16, 2015 Thompson spoke with Suffolk County
ADA Donna Patalano who, at the time, held the title of
“Chief, Professional Integrity and Ethics” and was the head
of unit within the SCDAO called the “Conviction Integrity
Project”. Thompson requested a copy of unredacted copies of
the pretrial discovery materials provided to Howard in the
Superior Court, which ADA Patalano agreed to provide to
him. Despite several follow-up contacts, none of these
pretrial discovery materials has been provided.4 R.24-29
On March 21, 2016 Attorney Amy Belger wrote to
Patalano and again requested the pre-trial discovery
documents. Belger provided Patalano with background
information regarding the extraordinary length of time that
the Suffolk County District Attorney’s Office has been in
4
Foxworth has obtained heavily redacted copies of some
documents pertaining to this case pursuant to public
records requests, but while many of those documents appear
to be exculpatory, in their redacted form, they are of
limited utility. A list of documents Foxworth seeks to
obtain in unredacted form are set forth in the Addendum to
this motion. (“The Requested Discovery”)
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possession of exculpatory evidence indicating that Foxworth
had nothing to do with McLean’s murder, yet that office has
failed to act upon that information. R.24-26
During the months of March-April, 2016, Belger
received some of the requested discovery documents from ADA
Teresa Anderson, but requests for further exculpatory
information in possession of the DA’s Office, along with a
complete set of unredacted pretrial discovery and
unredacted exculpatory police reports, have gone unheeded.5
R.27-29
Accordingly, Foxworth asks pursuant to Rule 30(c)(4),
that this Court order the Commonwealth to provide him with
a complete set of the unredacted pre-trial discovery
materials provided to Howard prior to trial, all
exculpatory evidence in its possession, including but not
limited to the documents set forth in the accompanying
Addendum, and further order that the Commonwealth obtain
from the federal government all exculpatory evidence in its
possession, as the Commonwealth has known for years of the
existence of this evidence and has failed to fulfill its
obligation to obtain it. See Rule of Professional
5
See Motion for a New Trial Pursuant to Mass. R. Crim. P.
30(b) filed contemporaneously with this motion.
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Conduct 3.8: Special Responsibilities of a Prosecutor and
Commonwealth v. Bonnett, 472 Mass. 827, 845-846
(2015)(burden of obtaining exculpatory evidence from the
federal government is on the Commonwealth, not the
defendant, in dual sovereignty situations). See also Kyles
v. Whitley, 514 U.S. 419, 437 (1995) (prosecutor has duty
to learn of evidence favorable to defense in possession of
government agency acting on behalf of the prosecution in a
case) and U.S. v. Safavian, 233 F.R.D. 12, 14 (D.D.C. 2005)
(prosecutors have a duty to learn of and gather evidence
favorable to the defense that is in the possession of
government agencies closely aligned with the prosecution).
ARGUMENT
MASSACHUSETTS RULE OF CRIMINAL PROCEDURE 30(c)(4) PERMITS

COURTS TO EXERCISE DISCRETION IN GRANTING POSTCONVICTION
DISCOVERY
A. The Eisenhut Letter, The Sabillia Message, The
Frongillo Letter, The Good Citizen Report and The
Joyner and Gillenwater Debriefings make out a
prima facie case for relief.
A criminal defendant may file a post-conviction motion
for discovery for the preparation and presentation of a
motion for a new trial, and “[d]iscovery is appropriate
where specific allegations before the court show reason to
believe that the petitioner may, if the facts are fully
developed, be able to demonstrate that he or she is
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entitled to relief. Cf Harris v. United States, 394 U.S.
286, 300 (1969).” See Reporter’s Notes to Rule 30(c)(4).
“Where affidavits filed by the moving party…establish a
prima facie case for relief, the judge…may authorize such
discovery as is deemed appropriate, subject to appropriate
protective order.” Mass. R. Crim. Pro. Rule 30 (c)(4).
The Requested Discovery is set forth in detail in the
Addendum, and consists of a complete set of the unredacted
pre-trial discovery materials provided to Howard, all
exculpatory evidence in the Commonwealth’s possession, in
particular The Good Citizen Report, and all exculpatory
evidence in possession of the federal government, which the
Commonwealth knows exists, due to: 1) The Sabillia Message;
2) The Frongillo Letter; and 3) the participation of ADA
Lee and BPD Detectives in debriefings where CI-1 and CI-2
declared Foxworth is innocent.
To obtain such discovery, Foxworth must sufficiently
show The Requested Discovery “is reasonably likely to
uncover evidence that might warrant granting a new trial.”
Commonwealth v. Daniels, 445 Mass. 392, 407 (2005) (further
citation omitted). "Discovery is appropriate where specific
allegations before the court show reason to believe that
the petitioner may, if the facts are fully developed, be
able to demonstrate that he or she is entitled to relief."
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Id. citing Reporters' Notes to Mass. R. Crim. P. 30, Mass.
Ann. Laws, Rules of Criminal Procedure, at 1512 (2004).
Foxworth need not demonstrate discovery obtained by
grant from this Court will definitively result in evidence
to support a new trial motion, for “if a defendant were
expected to present enough evidence through affidavits
justifying the presumption that he was entitled to a new
trial, post-conviction discovery would serve no purpose.
The purpose of post-conviction discovery is to allow a
defendant to gather evidence to support ‘an apparently
meritorious claim…[where] the evidence that can be adduced
to support the claim is unknown to the court.’" Id. at 406
quoting Reporters' Notes to Mass. R. Crim. P. 30, Mass.
Ann. Laws, Rules of Criminal Procedure, at 1512.
To meet the prima facie case standard for

discovery under a motion for a new trial
based on newly discovered evidence, a
defendant must make specific, not
speculative or conclusory, allegations that
the newly discovered evidence would have
"materially aid[ed] the defense against the
pending charges," Commonwealth v. Tucceri,
412 Mass. 401, 405 (1992), and that this
evidence, if explored further through
discovery, could yield evidence that might
have "played an important role in the jury's
deliberations and conclusions, even though
it is not certain that the evidence would
have produced a verdict of not guilty.” Id.
at 414.
Commonwealth v. Daniels, 445 Mass. at 407.
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To satisfy his prima facie showing, Foxworth relies
upon five things: 1) The Eisenhut Letter; 2) The Sabillia
Message; 3) The Frongillo Letter; 4) The Good Citizen
Report; and 5) Case File Correspondence.
1. The Eisenhut Letter
As described in The Eisenhut Letter, trial counsel
failed to retain a copy of Foxworth’s trial file for the
required period of time.6 R.1 It is clear from the Sabillia
Message that the Commonwealth was aware the federal
government had information it wished to share with the
Suffolk County DA’s Office prior to trial about the McLean
murder. R.2 The information set out in The Good Citizen
Report dovetails remarkably with the implications of the
Sabillia note and the Frongillo letter contents. R.14-15 It
states expressly that, twice in three days, a single “good
citizen” unidentified informant [not a CI] gave a member of
the BPD AGVU compelling and highly specific information
that a man who was identified in corroborated detail had
6
The Eisenhut Letter cites Canon Nine, 9-102(B)(3)
requiring a lawyer to retain a client file for six years.
R.1 Although the Committee for Public Counsel Service’s
Performance Standards do not address the subject of file
retention, CPCS as a matter of practice retains client
files for six years as well. See Kaufman, It’s not Over
‘Til It’s Over – Part II: Obligation of Criminal Defense
Counsel to Return Client Files (June 2003).
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bragged to the informant that he had killed "Kenny Mack."
R.14 While this information was evidently exculpatory to
Foxworth, there can be no doubt that professional homicide
investigators should have followed it up. The absence of
any mention of this information in the pretrial or trial
record provides powerful evidence that neither the report
itself nor the information in it was ever disclosed to the
defense. Foxworth was denied his right to establish and
present a third-party culprit defense.
Discovery demonstrating what, if any, follow up the
DA’s Office did with respect to that information may “yield
evidence that might have played an important role in the
jury’s deliberations and conclusions.” See Commonwealth v.
Daniels, 445 Mass. at 407.
2. The Sabillia Message
The message Sabillia left for Flynn was that Sabillia
“has info on McLean case”. R.2 There is no evidence this
phone message was turned over to the defense prior to
trial, nor is there any indication Flynn, or any other
member of the BPD, ever followed up with Sabillia in order
to investigate what information Sabillia had concerning the
McLean murder. The Fairland Street report confirming that
Christian was shot on May 22, 1991, the day before he
allegedly participated in the McLean murder corroborates a
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central element of the accounts given to Frongillo by CI-1
and CI-2 – that McLean's murder was related to the attack
on Christian. R.5-6 No evidence was presented at trial
linking Foxworth to Christian. The AG’s Office obviously
linked that event to McLean’s murder when its lawyer
erroneously presented it to the Parole Board as the crime
of Foxworth’s conviction. R.7-8
The information in The Sabillia Message is “specific”,
as opposed to “speculative or conclusory,” and “if explored
further through discovery, could yield evidence that might
have ‘played an important role in the jury's deliberations
and conclusions, even though it is not certain that the
evidence would have produced a verdict of not guilty.’”
Commonwealth v. Daniels, 445 Mass. at 407.
3. The Frongillo Letter
The Frongillo Letter invited the Suffolk County DA’s
Office to contact the federal government to obtain more
information regarding the exoneration of Foxworth given by
federal informants. R.3-4 It is clear the information
provided in The Frongillo Letter is simply a summary of all
of the information provided by the informants. As with the
information in The Sabillia Message, the information in The
Frongillo Letter is “specific”, as opposed to “speculative
or conclusory,” and “if explored further through discovery,
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could yield evidence that might have ‘played an important
role in the jury's deliberations and conclusions, even
though it is not certain that the evidence would have
produced a verdict of not guilty.’” Id.
It has been shown, in at least one case, that wrongful
convictions by the Suffolk County DA’s Office may only see
the light of day through the production of federal
government discovery. See, e.g., Commonwealth v. Ellis, 475
Mass. 459 (2016) and Commonwealth v. Bonnett, 472 Mass. at
844-850. See also Commonwealth v. Lykus, 451 Mass.
310, 327 (2008) (in dual sovereignty situations, the burden
of procuring federal government cooperation is placed on
the Commonwealth rather than on the defendant),
Commonwealth v. Donahue, 396 Mass. 590, 599 (1986)
(Commonwealth ordered to obtain exculpatory reports from
federal government where defendant was unsuccessful in
obtaining them on his own).
In considering whether the Commonwealth is obligated
to seek requested evidence from federal authorities, this
Court should weigh the following factors: 1) potential
unfairness to the defendant; 2) the defendant’s lack of
access to the evidence; 3) the burden on the prosecution to
obtain the evidence; and 4) the degree of cooperation
between State and Federal authorities, both in general and
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in the particular case. Commonwealth v. Donahue, 396 Mass.
at 599.
Here, the unfairness to Foxworth of withholding
exculpatory evidence that shows he is innocent
of McLean’s murder is fundamental; Foxworth has no access
to the evidence as his repeated requests that it be
provided to him have gone unheeded; and the burden to the
Commonwealth of obtaining it is slight given the direct
relationship enjoyed between the State and Federal
prosecutors who cooperated on the Kyle Andrews murder
investigation that produced the exculpatory evidence sought
during the debriefing stage of the Andrews investigation.
Moreover, this is exculpatory evidence that the Suffolk
County DA’s Office has direct knowledge of, and is on
notice exists, because its own ADA, Mark Lee, sat in the
very room where the discovery was generated. That the
Suffolk County DA’s Office has done nothing to investigate
and provide this most recent exculpatory evidence to
Foxworth is unconscionable.
4. The Good Citizen Report
Even in unredacted form, the exculpatory nature of The
Good Citizen Report is obvious and, like the federal
information, constitutes powerful evidence of Foxworth’s
innocence. It states that a man who had been arrested on
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167
Southern Avenue in January for a firearms offense and
charged in Roxbury District Court had been bragging about
having killed “Kenny Mack” on May 23, 1991. The reporting
officer said in The Good Citizen Report that he had
confirmed these facts and obtained an August 27, 1990
arrest photo of the braggart from the BPD Identification
Unit. The reporting officer reported further that on May
28, 1991 The Good Citizen had made a beeper call to him to
reiterate his information and urge BPD investigation. The
reporting officer submitted The Good Citizen Report for
investigation by AGVU and the Homicide Unit. R.14-15 The
prosecution team did not disclose The Good Citizen Report
pre-trial, has not provided any evidence that BPD or the
Suffolk DA's Office ever pursued it, and has ignored
repeated post-conviction requests to provide it in
unredacted form.
5. Correspondence between Defense Counsel and

Prosecutors
It is clear from the correspondence between defense
counsel and Suffolk County prosecutors that the Suffolk
County DA’s Office is aware exculpatory evidence
exists indicating Foxworth is innocent, yet the DA’s Office
has failed to obtain it, provide it to the defense, or
investigate it. R.24-29 Twenty-three years is too long to
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wait for the DA’s Office to voluntarily comply with its
ethical obligation to right a wrongful conviction. For this
reason, Foxworth enlists this Court to exercise its
authority to order the Commonwealth to do that which it is
obligated to do by ethical mandate, yet refuses to do.
B. The discovery sought by this motion was not known

to exist at the time of trial.
The information contained in The Sabillia Message, The
Frongillo Letter and the details from the federal
debriefings was not revealed to Foxworth until long after
his conviction in this case. This is not a situation where
the evidence sought from The Requested Discovery was known
at the time of the criminal trial and not used. Contrast
Commonwealth v. Martinez, 437 Mass. 84, 97 (2002) (post-
conviction discovery denied where police already conducted
"extensive discovery" of newly discovered evidence and this
discovery was already "voluntarily supplied" by district
attorney).
This is a situation where the Commonwealth has failed
to provide exculpatory evidence, for it is indisputable
that ADA Lee and BPD Detectives are part of the prosecution
team, and the Commonwealth is duty-bound to turn over all
exculpatory evidence known to them in a timely fashion. See
Commonwealth v. Scott, 467 Mass. 336, 349 (2014) citing
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169
Commonwealth v. Martin, 427 Mass. 816, 824 (1998)
(prosecution team consists of "has participated in the
investigation or evaluation of the case and has reported to
the prosecutor's office concerning the case").
The Requested Discovery now sought by this motion has
been in the possession and control of the Commonwealth for
many years.
We are guided by the interpretation of the phrase

"possession or control" in the context of a
prosecutor's duty to provide exculpatory
information. In determining the scope of a
prosecutor's duty, we have concluded that
"information known to an independent witness, but
unknown to the prosecution, is not within the
possession and control of the prosecution unless
that witness has acted, in some capacity, as an
agent of the government in the investigation and
prosecution of the crime." Commonwealth v. Beal,
429 Mass. 530, 532…(1999). See Commonwealth v.
Martin, 427 Mass. …[at]824…, and cases cited ("A
prosecutor's obligations extend to information in
possession of a person who has participated in
the investigation or evaluation of the case and
has reported to the prosecutor's office
concerning the case").
Commonwealth v. Ira I., 439 Mass. 805, 810 (2003).
…"The prosecuting attorney's obligations…extend

to material and information in the possession or
control of members of his staff and of any others
who have participated in the investigation or
evaluation of the case and who either regularly
report or with reference to the particular case
have reported to his office." Commonwealth v. St.
Germain, 381 Mass. 256, 261-262 n.8 (1980),
quoting ABA Standards for Criminal Justice,
Standards Relating to Discovery and Procedure
Before Trial 2.1(d) (Approved Draft 1970).
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Commonwealth v. Woodward, 427 Mass. at 679. Accord
Commonwealth v. Scott, 467 Mass. at 349-50(prosecutors had
a duty to disclose exculpatory evidence known to even just
one chemist at state lab, regardless of whether prosecutors
had actual knowledge of its existence, and a medical
examiner involved in investigation and evaluation of a case
is a person to whom this duty likewise applies). See also
Kyles v. Whitley, 514 U.S. 419, 437 (1995) (“a prosecutor
has a duty to learn of any favorable evidence known to
others acting on the government’s behalf in the case”) and
Commonwealth v. Daye, 411 Mass. 719, 734 (1992).
Here, a Suffolk County prosecutor and two police
detectives were directly involved in the federal debriefing
that generated the exculpatory evidence provided by CI-1
and CI-2. In addition, The Frongillo Letter extended an
invitation to the Commonwealth to come and collect
exculpatory evidence from the federal government on this
case, yet it appears that the Commonwealth has remained
disinterested in obtaining evidence offered to prove that
it convicted an innocent man. See Commonwealth v. Sasville,
35 Mass. App. Ct. 15, 26 (1993) (where Commonwealth fails
to preserve or provide exculpatory evidence that denies the
defendant his right to put on a defense, the resulting
prejudice is great).
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Without question, the DA’s Office had a duty, and is
under an ongoing duty, to investigate and disclose all
exculpatory evidence in its possession and within its
control. Because the federal government was inviting the
Commonwealth to come and obtain such exculpatory evidence,
it was clearly within the Commonwealth’s power to do so.
Because the Commonwealth refuses to abide by its obligation
to investigate and disclose exculpatory evidence, Foxworth
requests this Court order that it do so.
C. There is a real chance The Requested Discovery may

provide grounds for a new trial motion.
Foxworth, who is indigent, was convicted of second-
degree murder based primarily on the testimony of a now
recanting eyewitness, Derek Hobson. Without the recanting
witness’s testimony, the Commonwealth could not have
secured a conviction in this case. There is a compelling
reason to believe evidence from the informants that
establishes Foxworth’s innocence, would almost certainly
have changed the outcome of this case and would result in
the grant of a new trial under Rule 30(b).
Had the jury been presented with evidence flowing from
a proper investigation of the contents of The Sabillia
Message, “substantial doubt could have been cast on the
testimony” of Hobson, and Foxworth’s claim of actual
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innocence would have been significantly enhanced. Compare
Commonwealth v. Baker, 440 Mass. at 526; see also
Commonwealth v. Silva-Santiago, 453 Mass. 782, 800-801
(2009) (third-party culprit evidence is a time-honored
method of defending against a criminal charge). At a
minimum, evidence of Foxworth’s innocence as provided
through the information in possession of the federal
government “would have allowed the defense to expose the
jury to weaknesses in” the Commonwealth’s case.
Commonwealth v. Baker, 440 Mass. at 526. Foxworth was
entitled to have the jury consider evidence of this nature
as he stood trial for this heinous crime. See id.
The Requested Discovery relates to the essential issue
in this case, namely, whether Foxworth was involved in the
murder of McLean. Contrast Commonwealth v. Staines, 441
Mass. 521, 533-34 (2004) (no loss of available defense
where evidence, while no doubt important, did not go to the
central issue in the case).
Furthermore, the trial evidence against Foxworth was
not overwhelming. In fact, it was barely sufficient. See
Foxworth v. St. Amand, 570 F.3d 414, 433-436 (1st Cir.
2009). Even the trial judge noted following argument on
Foxworth’s motion for a required finding of not guilty that
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“there was not very much evidence” in the record to convict
Foxworth. 3-22-92Tr:69-70
That factor sets this case apart from many cases
where denial of post-conviction discovery requests have
been affirmed by the appellate courts of this state. See
Commonwealth v. Daniels, 441 Mass. at 407, n. 28
contrasting Commonwealth v. Martinez, 437 Mass. 84, 87
(2002) (affirming denial of post-conviction discovery
where the claimed newly discovered evidence was a tape
recording of the victim's boyfriend's confession to the
killing, but where police officers had investigated the
lead, the boyfriend denied everything, and other evidence
against the defendant included one witness encountering the
defendant with a bloody knife on the day following the
murder and, when asked for an explanation, was informed by
the defendant he "had slashed a bitch"); Commonwealth v.
Tague, 434 Mass. 510, 517, 519 (2001) (defendant did not
establish prima facie case for relief warranting
postconviction discovery where the discovery sought-an
accomplice's clothing for the purpose of testing it for the
presence of the victim's blood-"would not exculpate the
defendant," and where the Commonwealth's case against the
defendant was "overwhelming," in part because "[g]iven the
defendant's admission to [a friend] that he stabbed [the
27
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175
176
COMMONWEALTH v. ROBERT FOXWORTH
ADDENDUM TO MOTION FOR DISCOVERY
THE REQUESTED DISCOVERY
1. A full and complete copy of all pre-trial discovery turned over to attorneys
Willie Davis and Earl Howard in this case.
2. Unredacted copies of police reports and paperwork obtained via public records
requests, itemized as follows:
• The May 23, 1991 Report authored by Detectives
Joseph F. Pishkin and Walter Warren A.1-2
• The May 23, 1991 Report authored by Detectives
Paul Marten and Thomas Gomperts A.3-4
• The May 28, 1991 Reports authored by Detective
Daniel B. Flynn A.5-6
• The May 23, 1991 Report authored by Detective
Daniel B. Flynn A.7-8
• The May 29, 1991 AGVU Report (author unknown) A.9-10
• The June 5, 1991 Reports authored by Detective Daniel B.
Flynn A.11-14
• The June 10, 1991 Report authored by Detective Daniel B.
Flynn A.15
• The June 18, 1991 Report authored by Detective Robert F.
Ahearn A.16
• Police Handwritten Notes A.17-35
• Telephone Messages A.36-46
• Homicide Information Sheet A.47
• Detective Robert F. Ahearn October 7, 1991 Letter A.48
• BPD Criminal Complaint A.49
• May 23, 1991 Incident Report A.50
• September 11, 1991 Incident Report A.51
• September 11, 1991 Arrest Booking Sheet A.52
• October 28, 1991 Arrest Booking Sheet A.53
• Police Handwritten Notes A.54-56
• October 26, 1991 Witness List A.57
• May 23, 1991 BPD Continuation Sheet A.58
• Photo Identification Paperwork A.59-63
• Wanted Flyer A.64
• Fingerprint Documents A.65-66
• May 23, 1991 Handwritten Incident Report A.67
3. All information the Suffolk County District Attorney’s Office obtained during
a debriefing of two federal confidential informants in 2010 and 2011 who
177
both stated that Robert Foxworth was in no way involved in the murder of
Kenneth McLean .
4. See A.68 - Copies of all cassette tapes in the possession or control of the
Suffolk DA's Office related to the murder of Kenneth McLean.
178
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COMMONWEALTH v. ROBERT FOXWORTH
INDEX TO RECORD APPENDIX
The Eisenhut Letter R.1
The Sabillia Message R.2
The Frongillo Letter R.3-4
BPD Incident Report dated May 22, 1991 R.5-6
Initial Parole Hearing Paperwork dated June 13, 2006 R.7-13
AGVU Report dated May 29, 2991 R.14-15
March 5, 2012 Letter from Attorney John M. Thompson to

Attorney Thomas Frongillo R.16-17
March 12, 2012 Letter from Attorney John M. Thompson to

Attorney Theodore Heinrich R.18-19
March 21, 2012 Phone Message to Attorney John M. Thompson

From Attorney Theodore Heinrich R.20
December 3, 2012 Letter from Attorney John M. Thompson to

Attorney Theodore Heinrich R.21
March 21, 2016 Letter from Attorney Amy M. Belger to

Attorney Theodore Heinrich R.22-23
March 21, 2016 Letter from Attorney Amy M. Belger to

Assistant District Attorney Donna Patalano R.24-26
May 2016 email correspondence between Attorney Amy M. Belger

and Assistant District Attorney Teresa Anderson R.27-29
247
248
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EXHIBIT 4B
277
TIMELINE OF DISCLOSURE OF MARK LEE’S MISCONDUCT
TO THE SUFFOLK COUNTY DISTRICT ATTORNEY’S OFFICE
April 18, 2017 After all reasonable efforts were exhausted by counsel for Robert
Foxworth to get MARK LEE to meet his discovery obligations
short of court intervention, I filed a motion for post-conviction
discovery pursuant to Mass. Rule of Crim Proc. Rule 30(c)(4)
asking that the court order the Suffolk County District
Attorney’s Office to turn over the exculpatory evidence on the
Robert Foxworth case that was in its possession that I knew
existed, that MARK LEE knew existed, and that ADA Donna
Patalano had been informed existed. This date was the first time
that I accused MARK LEE of professional misconduct in a
publicly filed court document.
July 10, 2020 During a Zoom meeting, John Thompson and I told ADAs Dara
Kesselheim and Donna Patalano that MARK LEE had engaged
in misconduct. We described the nature of the misconduct,
namely, that MARK LEE never timely disclosed the information
from the 2007 debriefing to the court or to counsel for Robert
Foxworth, and MARK LEE obstructed all of our efforts to get it.
We requested that MARK LEE be recused from Conviction
Integrity Panel (CIP) review of Robert Foxworth’s case. We
viewed it as a conflict of interest that MARK LEE be permitted
to consider and vote upon whether Robert Foxworth was granted
relief and freed from prison given the accusations of misconduct
that John Thompson and I had raised against him.
Sept. 21, 2020 I received a phone call from ADA Kesselheim informing me that
MARK LEE was not going to be recused from the CIP
presentation on the Robert Foxworth case which was scheduled
for the next day. She asked me to please speak to John Thompson
and advise John Thompson not to take the opportunity to speak
of MARK LEE’s misconduct during the CIP presentation, as in
her opinion that would not be a good use of time, nor would it be
in the best interests of my client, Robert Foxworth. I expressed
frustration and disappointment to ADA Kesselheim regarding
what I viewed as the Suffolk County District Attorney’s Office’s
poor exercise of discretion and lack of adherence to its ethical
obligations to Robert Foxworth, and agreed with her that John
Thompson should be advised to refrain from speaking about
MARK LEE’s misconduct during the CIP presentation. John
Thompson, for many years, has been very angry at MARK LEE
for engaging in misconduct that resulted in the prolonged
278
incarceration of an innocent man. ADA Kesselheim was aware of
John Thompson's level of anger. I spoke with John Thompson and
he agreed to refrain from speaking about MARK LEE’s
misconduct during the CIP presentation, because he agreed that
to do so would not be in the best interests of Robert Foxworth.
Sept. 22, 2020 The CIP presentation on Robert Foxworth’s case was held over
Zoom. The meeting was attended by myself, John Thompson and
Linda Thompson on behalf of Robert Foxworth. Many senior level
homicide prosecutors and prosecutors in leadership positions
within the Suffolk County District Attorney’s Office were in
attendance, including MARK LEE, who was not recused. I recall
the following ADAs were also on the Zoom: Dara Kesselheim,
Donna Patalano, Daniel Mulhern, Cailin Campbell, John
Pappas, Mark Zanini, Ed Zabin, Masai King and David Lewis. In
the middle of the Zoom, completely off-topic, MARK LEE began
verbally attacking John Thompson for questioning his integrity
by making allegations of misconduct. John Thompson stated that
he was making the allegations because they were true. MARK
LEE stated they were not true. I then told ADA Kesselheim that
I was calling a ten-minute break in the Zoom meeting because all
of this was contrary to what we had agreed upon. In addition, it
was a very scary experience for me as a lawyer to realize that,
because the Suffolk County District Attorney’s Office refused to
recuse MARK LEE from this CIP presentation, extraneous
information had entered into the proceedings that could further
jeopardize the freedom of the still-incarcerated Robert Foxworth.
Following the ten-minute break, ADA Kesselheim offered a “mea
culpa” for MARK LEE’s behavior on behalf of herself, but not on
behalf of the other members of the Suffolk County District
Attorney’s Office, none of whom addressed the matter. After the
CIP Zoom ended, ADA Kesselheim contacted me and asked if she
and MARK LEE could meet with John Thompson and I in a
follow-up four-person Zoom meeting, at the request of MARK
LEE. I refused. ADA Kesselheim told me she understood my
position, and she apologized again for MARK LEE’s behavior.
John Thompson, Linda Thompson, and myself agreed among
ourselves that we would never again speak to MARK LEE
directly about the misconduct he committed.
Nov. 19, 2020 I had a phone conference with ADA Dara Kesselheim re: the
2013 Detective John Cronin report, just produced to me the day
before on 11/18/20, documenting that MARK LEE falsely told
Detective Cronin that no information was conveyed to MARK
279
LEE by the federal informant in 2007 indicating that Robert
Foxworth was innocent. I wanted to make sure that she had
seen it and understood the significance that I attached to it.
Feb. 11, 2021 Robert Foxworth and myself met with District Attorney Rachael
Rollins in person at the Suffolk County District Attorney’s
Office. During that meeting, DA Rollins told us that she was
aware of our allegations of misconduct and failure to disclose
exculpatory evidence by members of her office staff that were
currently employed by her office. DA Rollins stated that she took
these allegations seriously and that there would be a thorough
investigation. ADA Kesselheim was also present.
February –
March 2021 Approximately a few weeks after the in-person meeting with DA
Rollins, ADA Kesselheim and I spoke about MARK LEE’s
misconduct. ADA Kesselheim told me that she had reviewed the
matter and concluded that, in her opinion, there was no evidence
that MARK LEE acted intentionally. She made clear in saying
this that she was speaking to me in her individual capacity and
she was not speaking on behalf of the Suffolk County District
Attorney’s Office.
June 9, 2022 I received a phone call from Attorney Spencer Lord. He informed
me that he had accepted an offer to become General Counsel at
the Suffolk County District Attorney’s Office. He told me his
start date was 6/20/22. He asked me what, if any, response had
been given by the Suffolk County District Attorney’s Office
regarding my allegations of misconduct against MARK LEE.
Spencer Lord was aware that I made such allegations because,
back in 2017 when he was Deputy General Counsel of the
Massachusetts Parole Board, he was instrumental in helping me
obtain, through the correct process, highly exculpatory evidence
that was stored in Robert Foxworth’s file at the Parole Board.
Spencer Lord was at all times responsive to my requests for
exculpatory evidence from the Parole Board and he has
consistently over the course of many years expressed concern
about the misconduct that I have disclosed about MARK LEE. I
informed Spencer Lord that I would be ready to deal with
MARK LEE’s misconduct once I finished litigating all of Robert
Foxworth’s claims. Please see Addendum Exhibit 4C.
August 31, 2022 I received a second call from ADA Spencer Lord. He told me that
he had reviewed documents related to my allegations of
280
misconduct against MARK LEE and he stated that he
considered this a serious matter. I told him that I believed I was
close to being ready to deal with MARK LEE, because I believed
that settlement of Robert Foxworth’s remaining civil lawsuit
claims would happen soon.
Oct. 24, 2022

7:00 PM I notified ADA Spencer Lord that I was ready to move forward
on dealing with MARK LEE’s misconduct because earlier in the
day, all civil claims on behalf of Robert Foxworth were officially
settled and paid. ADA Lord immediately responded to me and
he told me that he and ADA Kevin Mullen, who serves as the
First Assistant District Attorney, would like to speak with me. I
told ADA Lord that I would check with Robert Foxworth and get
back to him.
Oct. 25, 2022 I notified ADA Lord that I had spoken to Robert Foxworth and
that I could meet with him and ADA Mullen to discuss MARK
LEE’s misconduct. ADA Lord asked if I could meet with them as
soon as tomorrow, and he offered that he and ADA Mullen would
travel to my office for my convenience if it helped make this
meeting happen as soon as possible.
Oct. 26, 2022 I met with ADAs Lord and Mullen for 90 minutes in ADA
Mullen’s office. During that meeting, I walked them through my
allegations of misconduct against MARK LEE and I told them
that I would be filing a BBO complaint against MARK LEE in
November. ADA Mullen informed me an internal investigation
into these allegations would be made a priority for the Suffolk
County District Attorney’s Office, while making clear to me he
was not prejudging what the outcome of that investigation
would be nor was he opining as to what action, if any, would be
taken regarding the information I communicated. I told ADA
Mullen that upon filing this Complaint I would provide a copy
of it to ADA Lord. I have done so.
281
EXHIBIT 4C
282
283
284
285
EXHIBIT 5
286
To: The Honorable members of the Bar Please hear my cries for justice, I, Robert Foxworth,
beg thee,
I explain this pain in detailed, accurate fashion.
(The Facts)
From the first day I entered prison I knew there would come a day that I would be cleared of
the murder I would eventually serve 30 years for. But what’s damaged me was being allowed to
Go home in 2008 when a federal court reversed my conviction, I knew at almost 18 years my
belief that I would cleared of the murder had arrived, but it did not. After 18 months out in
Society I was ordered back to Walpole State prison to continue to serve a sentence for a crime I
had nothing to do with. My Lawyers all knew that I was innocent, they believed IN ME, and they
drove head first into proving this fact. We were given information from the federal authorities
that a credible confidential informant had given information that proved I was not the heartless
culprit who shot and killed a man in front of his daughter.
While my lawyers were digging into the case I was severely traumatized being put back in
prison to serve a life sentence for a crime I knew nothing about. But my hope, my heartbeat, my
pulse was hinging on that federal information that cleared me of this murder. I figured I’d be in
jail for at most a couple of months, that the Suffolk County D.A. 's office would clear me and
allow me home. But after numerous delays, and stall tactics this couple of months I had hoped
for turned into a couple of years. Now doubts are setting in and I’m wondering what's going on
now.
It was the first time I really knew that our Government and this State wasn’t about
shit.They're going to allow me to die in jail for a crime I didn’t do. And not because they didn’t
have the evidence, because they did. It was about them covering up illegal acts by colleagues
and to save their colleagues name and reputations, I had to forfeit my life. Something I wasn’t
willing to do, and they were.
I’ll never forget hearing the news about the reason my months turned into years, that a
assistant prosecutor was withholding evidence that cleared me of the murder. That this ADA
also lied to Boston Police to keep me where I was at. Another human being was defying his job
obligations, his oath, his dignity and name to keep me incarcerated. I lost my mom to cancer
during that time frame. And the Department Of Correction wouldn’t allow me to attend her final
send off because I was deemed a murderer. MARK LEE you played a major role in crippling me
in life. I did you no wrong, I never met you, never hurt you, never done anything to you. Yet in
some way, shape, or fashion you harbored enough evil, hatred, and despise for me that you
Could stand by and watch me slowly die in prison. I only wanted what I was given by God, my
name and freedom back that was taken wrongfully. You hurt me Mr. Lee, and I pray you're not
in a position to ever hurt anyone else.
287

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AMY M.

Dear Bar Counsel,

Enclosed please find a COMPLAINT submitted in accordance with the

instructions on your website, and as directed by your Rule of Professional

Conduct 8.3: Reporting Professional Misconduct, as it applies to me.

Thank you for your attention to this matter.

Very truly yours,

cc: Assistant District Attorney Spencer Lord (via electronic mail)

Please fill in the following, if applicable:

Please see the attached Statement of Facts in support of this Complaint.

1) Attorney MARK LEE violated Rule of Professional Conduct 8.4.

Pursuant to Rule 8.4, it is professional misconduct for a lawyer to engage in

MARK LEE violated both subsections.

As to subsection (c), in 2013, MARK LEE misrepresented to Boston Homicide Detective

2) Attorney MARK LEE violated Rule of Professional Conduct 3.8.

Counsel’s Compliance with Rule of Professional Conduct 8.3.

• On January 13, 2021, Robert Foxworth’s conviction was vacated by superior

• On January 5, 2022, I, along with co-counsel, commenced discussions with

• On October 24, 2022, I began work on this Complaint.

• It is my position that my report to has been made as soon as was practicable

• Throughout the pendency of litigation, I have made my co-counsel for Robert

Exhibit 1: DOCUMENTS RELATED TO THE EXONERATION OF ROBERT

Exhibit 2: TIMELINE DOCUMENTS RELATED TO THE POSSESSION OF

• Exhibit 2C – corroborative of Exhibit 2B

• Exhibit 2D- Affidavit of John M. Thompson dated 4/12/17

Exhibit 3: ADDITIONAL DOCUMENTS THAT SUPPORT THE

• Exhibit 3A- Report of Detective John Cronin

• Exhibit 3B- Affidavit of John M. Thompson dated 9/26/18

• Exhibit 3C- Transcript of Status Hearing Held 9/27/18

• Exhibit 3D – Affidavit from the Confidential Informant dated

• Exhibit 3E- Order of Judge Christine Roach Asking Why the

• Exhibit 3G – Email Correspondence to MARK LEE dated 1/25/19

Exhibit 4: DOCUMENTS RELATED TO NOTICE GIVEN TO THE SUFFOLK

• Exhibit 4A – Motion for Post-Conviction Discovery dated 4/18/17

• Exhibit 4B - Timeline of Notice and Disclosure of Withholding

• Exhibit 4C – Affidavit of Amy M. Belger dated 10/6/17

Exhibit 5: THE IMPACT OF MARK LEE’S MISCONDUCT ON THE LIFE

Statement of Robert Foxworth

Exhibit 1: DOCUMENTS RELATED TO THE EXONERATION OF ROBERT

SUFFOLK, ss Docket No. 9184CR097923

COMMONWEALTH'S NOLLE PROSEQUI

/s/ Dara Z. Kesselheim

SUFFOLK, ss. SUPERIOR COURT

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BROWSE CASES ISSUES RESOURCES ABOUT US MAKE A GIFT

The men grabbed her father, Kenneth McLean, Reported 1991

Foxworth hired a well-regarded Boston attorney, Willie Davis, to represent

In a proceeding related to this hearing that took place without Howard or

“In this improper proceeding,” Foxworth’s appellate attorneys would later

Prosecutors planned to introduce Logan’s statement in their case against

Foxworth began a series of appeals through the Massachusetts and the

As Foxworth’s attorneys worked through these appeals, they also uncovered

Separately, the police department eventually turned over two documents

In addition, Officer Robert Guity had received a so-called “Good Citizen

On January 31, 2020, Foxworth’s attorneys filed an expansive motion for a

On December 18, 2020, prosecutors filed a response in Suffolk Superior

“A tremendous amount of government resources goes into convicting

Report an error or add more information about this case.

Last Updated: 3/1/2021

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