40 years ago this month, Fred Clay was arrested for a crime he didn’t commit. After 38 years behind bars, he’s telling his story and writing another chapter.
Just after 4 am on Nov 16, 1979, 28-year-old Jeffrey Boyajian sat idling in his cab in downtown Boston. One more ride, Boyajian may have thought to himself, eager to return home to Swampscott after a slow night.
Another cab driver, Richard Dwyer, who was parked behind Boyajian, watched as three men crossed the street and climbed into Boyajian’s cab. Perhaps the men in the back whispered to each other, or maybe they remained quiet, their leather jackets puckering against vinyl seats on the 20-minute ride to the Archdale housing project in Roslindale.
Phillipa Sweatt was making coffee for her son Neal and his friend, Ben, who had come to pick Neal up for their early morning shift at the produce center, when the sound of a scuffle drew her to the window of their second-story apartment.
Outside, a yellow cab and panicked voice.
“Take what you want, but let me live.”
Then five gunshots.
*
Almost a year after his 2017 exoneration, Fred Clay woke up in the middle of the night, stretched his limbs and stood at attention, ready for headcount. It was a nightly ritual he’d abided by for 38 years.
As the sleep wore off, Fred looked down at his feet, then over to his rumpled bed, realizing with a start that he was in his own room next to his own bed in his own basement apartment on Gorham Street in Lowell. He shook his head and laughed.
“All of a sudden it hits me. I don’t have to do that no more!”
*
Clay was arrested for Boyajian’s murder in 1979, despite his assertion that he’d been asleep at his foster home at the time—an alibili corroborated by his foster mother. Though no physical evidence was ever produced linking Clay to the crime, he was convicted of first degree murder in August of 1981 and prosecuted as an adult.
Just 16 years old, Clay was sentenced to life in prison without parole.
I learned about Clay’s case through my father, Rob Selevitch, who worked on his appeal as an investigator for the Massachusetts Innocence Program. My dad has been a private investigator for over 30 years; for the past decade, he’s worked for the Committee of Public Counsel Services, and he was brought on to the Innocence Program team in 2011. His role in Clay’s case was to track down witnesses who had been involved in the first trial and re-interview them. The re-interview process mainly involved clarifying what witnesses had said and meant during the first trial.
“Unfortunately, the DAs want to win. That’s a weird dynamic because you would hope that they’d be searching for the truth,” my dad says. “But they will fight like hell to keep information out of the courtroom that hurts their case.”
After a year working on Clay’s case, my dad texted me a photo: a crowded courtroom. Beneath: “Fred Clay walks after 38 years.”
“To quote Sam Cooke,” Clay told reporters as he exited the courthouse on Aug 3, 2017, “it’s been a long time coming.”
*
My dad had mentioned to Clay that I was a writer, and after the exoneration, Fred asked me to help tell his story. He wants people to know what happened to him—to know how easy it was to get locked up, and how hard it was to hold anyone accountable for that mistake.
Fred suggests we meet at a cafe in Mill No. 5, a former textile factory near his place in Lowell that has been transformed into a “hip haven” with a record store, an indie theater, and a gourmet popcorn vendor.
Wearing a zip-up gray sweater and sharply creased slacks, Fred stands just shorter than me, at 5’6”. Over the next several months, we talk about a lot of things—how the police botched his case, his life in prison, the painful adjustment period following his release, and his hopes for the future.
Fred’s initial conviction hinged on the testimony of two eyewitnesses: Neal Sweatt, a resident of Archdale, a public housing project between Forest Hills and Roslindale Square; and Richard Dwyer, the cab driver parked behind Boyajian’s taxi on that fateful night.
When police first interviewed Sweatt the morning after the murder, he told them that he hadn’t seen what happened. Richard Dwyer contacted the police later that evening, claiming he had read about the murder in the Globe and recognized Boyajian’s car. No such article had run in any Boston newspapers that day. Nonetheless, both Dwyer and Sweatt would become critical witnesses in the case against Fred.
“It was the worst of all possible worlds,” says Lisa Kavanaugh, one of Clay’s appeal lawyers. An attorney since 2002, Kavanaugh spent much of her career as a public defender before becoming director of the Innocence Program in 2011.
Fred’s case reached Kavanaugh through a chance encounter at a party in January 2012. An acquaintance, Reverend Fred Small, asked Kavanaugh what she did for work. “I told him I recently started as the new director of the Innocence Program. It turned out that he had been visiting Fred for many years in prison. He said he’d come to believe that Fred is innocent. So I sent him an application.”
Reviewing Fred’s case, Kavanaugh says, “It became clear very quickly that this is the type of case that you should worry about the most. Fred was convicted entirely based on witness identification evidence by people who had a very limited opportunity to see the perpetrators. They were unable to give any kind of meaningful descriptions and were exposed to the types of procedures that we now understand are completely unreliable. Even before meeting Fred, I knew it was certainly a case we need to look into more carefully.”
The Boston Police Department subjected both Dwyer and Sweatt to “forensic” hypnosis, which the BPD claimed allowed witnesses to zoom in on events in their memory, effectively freezing them to allow perfect recall. After the procedure, Dwyer and Sweatt were asked to choose the perpetrator from an array of 12 photos, which they had (illegally) been shown before the hypnosis.
The BPD was so enamoured with the procedure that for decades it maintained its own Hypnosis Unit. Among many cases, hypnosis was used to elicit a confession from Albert DeSalvo, aka the Boston Strangler, in 1966. The procedure was also used to convict former Brockton doughnut-shop owner Jon Kater for the murder of 15 year-old Mary Lou Arruda in 1983.
The Massachusetts Supreme Judicial Court overturned Kater’s conviction in 1991, however, ruling that evidence derived from hypnosis was “generally inadmissible.” The reversal marked the beginning of the end of this particular use of junk science by the BPD, but it came too late for Fred.
*
Hypnosis was just one of the strategies used by the Boston police to invent a case against Fred.
In 1979, the Sweatts were the only white family living in Archdale at a time of intense racial tension. They had been on a waitlist to move into another development for five years. Neal Sweatt failed to make a positive identification the first time he spoke with the police, and again after his first hypnosis session, which was terminated due to “poor concentration,” according to lead detective Henry Berlo. After showing Sweatt the photo array for a third time, Berlo promised Sweatt that if he helped identify the perpetrator, his family would be relocated at the city of Boston’s expense.
Sweatt then positively identified Clay as the gunman—despite the fact that Sweatt’s kitchen window was more than 74 feet from where Boyajian’s body was found, and the street below was lit by a single streetlamp. Sweatt also suffered from a developmental disorder. Though he was 25 years old at the time of the investigation, he was reported to have the mental capacity of a 10-year-old, according to records that the defense had located but that Clay’s initial trial defense lawyer had never sought.
*
Every morning in prison, Fred looked in the mirror, splashed water on his face, and repeated the same mantra: “I am not a murderer. I am not what these people think. I did not do this.”
After his conviction, Fred says he was overwhelmed with anger. “Early on in my sentence I was acting kind of crazy, acting wild, getting in trouble.” He argued with officers and fellow inmates and was caught with drugs on several occasions.
In this difficult period he became close friends with a youth counselor named Louis Costello, who worked in the juvenile mental health center where Fred was placed. Even after Fred got transferred to the notorious Charles Street County Jail (now the luxurious Liberty Hotel), Costello continued to visit him several times a week, often taking time off work to do so. He’d teach Fred math, buy him clothes, and speak with him about his anger.
But their relationship soured when Fred began using Costello for drug money. “I was taking advantage of him and he saw that,” Fred says. “It was a friendship that I should have treasured. He meant a lot for me, did a lot for me.”
In their last meeting, Costello advised Fred to think about the way he did his time. Many of Fred’s fellow inmates were participating in programs, going to school, and getting college degrees. “They saw some of the programs I was starting to do off and on, but I wasn’t that serious,” Fred says.
“They encouraged me to get more serious. It was coming from different areas, all these people telling me the same thing in their own way: to figure out how to do the time and not let the time do me.”
*
Fred would often hear stories about people who had successfully proven their cases.
“I’d see people on TV with the cameras and everything,” he says, “interviewing them and asking them how they felt about being exonerated, set free after being in prison for so long. And I kept telling myself that should be happening to me.”
After his mother’s death in 1983, Fred continued to struggle with settling into a life in prison. “I couldn’t wrap my head around it,” he says. He coped by doing drugs, playing basketball, and listening to music.
“I gave up faith in myself, in the system, in my family. In all the people helping me. Lawyers. I gave up faith in a whole lot of things.”
In his lowest moments, Fred says he considered suicide. “But then I thought, ‘Why kill myself over something I didn’t do?’ That’s not going to help me get out of prison.” He laughs. “Well, I’d get out, but I wouldn’t be able to enjoy it.”
Instead, Fred got more involved in his case, visiting the law library and speaking with jailhouse lawyers, who suggested research angles such as police coercion, people lying under oath, hypnosis cases, and errors associated with cross-racial identification.
In 2006, Fred petitioned the court for a sentence reduction, arguing that he shouldn’t have been tried as an adult because of juvenile brain development. At another point, he filed a motion for a new trial based on the emerging consensus that hypnosis was junk science.
“I’d be trying stuff in court and getting denied, and I was mad about that,” Fred says. “For awhile I was in a little funk.”
Though the legal work was frustrating, it was also motivating. For the first time, Fred let himself consider a future.
“A lot of people that I was hanging with at the time on the streets, come to find out they got murdered, they got killed, they overdosed,” he says. “They were going down a road that ended up destroying them. And if I’d continued to be with them, that could have happened to me. So prison sort of saved my life.”
“It sounds more like you saved your life, in prison,” I suggest.
“That’s true, that’s even better!” Fred laughs. “I like that.”
*
Fred became eligible for parole in 2013, when the practice of sentencing minors to life without parole was declared unconstitutional in Massachusetts. While Kavanaugh worked on Fred’s exoneration, another lawyer, Manny Howard, worked on his parole.
But the possibility of parole came with strings attached. Fred would have to admit to some level of guilt—a condition he was opposed to. “I thought, if I tell a lie, this could be all over,” Fred says. “But if you tell a lie, then everything else that you been saying was true is all of a sudden gonna go away. And they’re gonna say, ‘Well, Mr. Clay … what is it? Are you lying now or have you been lying all along?’ And I had to really think about that.”
In addition to the character witnesses who volunteered to speak on Fred’s behalf, Boyajian’s brother, Jerry, was also called to speak at Fred’s parole hearing. Fred was anxious, unsure whether or not Jerry would oppose his parole.
Surprisingly, Jerry said that while no one had the right to take his brother’s life, he felt he should not have power over Fred’s life either. He told the board that he would not object to Fred’s parole—but he would also not forgive him.
Nonetheless, Fred’s parole was denied, the board declaring that he hadn’t shown sufficient remorse.
Following Fred’s exoneration, Boyajian’s siblings also became a source of support, however unexpected. They articulated their belief in Fred’s innocence and apologized for what happened to him. “They were lied to also,” Fred says. “That’s something else that should be talked about.”
Fred had dinner with them soon after his release.
“I really didn’t know how they were gonna react to me,” Fred says. “But it was emotional, it was funny, it was sad, it was therapeutic, it was all those things.”
*
I call my dad one afternoon while working on Fred’s story.
“I think we’re gonna get another guy out soon,” he says. He’s preparing to testify for a client serving 45 years for sexual assault of a minor.
Innocence Program lawyers meet every Tuesday to review cases that people have written to them about. It’s a difficult process.
“When you say ‘not there,’ and you throw a case back in the pile, it’s like that person is staying in jail for the rest of their life,” my father says. “Right there you’re making a decision where, to you, it’s a callous, kind of calculated thing. And I was looking at the pile the other day, like, wow… that’s a bunch of people.”
Of the roughly 2,298,300 people currently incarcerated in the United States, 3-5% are estimated to be innocent. That works out to over 90,000 people.
“There’s a lot of people who believe that those numbers understate the problem,” Kavanaugh says. Many incarcerated people, for example, plead guilty because they can’t make bail. Others, who aren’t facing life sentences, serve their time without bothering to fight it.
The Suffolk County District Attorney’s vacated Fred’s conviction after determining he did not receive a fair trial. But even with all charges dismissed, the office that prosecuted him stopped short of apologizing for their life-altering errors.
“I know that Mr. Clay’s supporters would prefer if I were able to say that he was actually innocent, and I cannot say that with absolute certainty,” then-DA Dan Conley said in a press conference after Fred’s release.
“I was kind of hoping that they would acknowledge it on camera and say that they actually thought I was innocent, and that was the reason I was getting exonerated,” Fred says.
“They made me accountable for someone else’s mistakes for 38 years. They should be accountable for their own.”
*
Massachusetts has taken steps to reform its flawed criminal justice system. In 2004, it joined 36 other states in allowing individuals who were convicted and exonerated for a crime they did not commit to seek compensation of up to $500,000. And in 2018, state officials passed sweeping legislation raising the age a child can be held criminally responsible from 7 to 12, making it easier for people who committed a minor crime before the age of 21 to seal their record, and eliminating certain mandatory minimums.
Most importantly for Fred, the 2018 reforms also increased the total possible payout for wrongfully incarcerated individuals to $1 million.
In January 2019, almost a year and a half after his release, Fred was granted $1 million in a civil settlement. In announcing the settlement, Attorney General Maura Healey even referred to Fred as “clearly innocent.”
A month or two after Fred won his civil case, the city of Simi Valley, California, reached a $21 million settlement with Craig Coley, a man wrongly convicted of a 1978 double murder. He was exonerated after spending 37 years in prison—a year less than Fred, though he received $20 million more.
Fred was luckier than most, though. According to the National Registry of Exonerations, 56% of exonerees have received no compensation at all.
*
Since the cameras stopped rolling on the day of his release, Fred has been quietly trying to make a life for himself.
“I feel out of place,” he says. “I missed so much. The technology is different, the pace of life is different.”
Unlike those released on parole, exonerees are offered no transitional assistance. Fred initially found work with UPS, but the hours were irregular, and his shifts were often cut short. Now he works as a machinist, precision grinding aviation parts at a metal shop. He says he enjoys the methodical, detailed work.
Fred wants to make friends, learn how to cook, how to drive. My dad offers to teach him, once he gets his permit.
But Fred says he often feels overwhelmed. He goes to yoga and meditation classes to cope with anxiety attacks. “When I go to the supermarket, I tell myself to just stick to the name brands that I know.” He chuckles. “Like toothpaste, there’s so many different kinds of toothpaste. Colgate, I know that brand, I pick that one.”
Looking back on the system in which he spent so much of his life, Fred says that prison isn’t about reform.
“Mostly it’s about punishment,” he says. “They do provide some programs … but it’s mostly geared for people who’s doing small time, and some of the programs were not available for me when I was doing a natural life sentence. … They want people that got release dates, parole dates, wrap-up dates. … But when it comes to lifers, it’s not much for them.”
*
According to the National Registry of Exonerations, at the time of this writing, 2,404 people have been exonerated since 1989 and 206 since Fred walked free. Of the exonerees listed in the registry, 47% are black. The Registry’s 2017 report, Race and Wrongful Conviction in the United States, found that innocent African Americans are about seven times more likely to be wrongfully convicted of murder than innocent white suspects.
A major cause of this racial disparity, according to the report, “appears to be the high danger of mistaken eyewitness identification by white victims in violent crimes with black assailants.”
Kavanaugh says that roughly 75% of wrongful conviction cases have involved eyewitness errors. Usually, though, more than one factor has contributed. “It could be a combo of eyewitness error plus a type of forensic evidence that was overstated or mischaracterized or just wrong,” she says.
Researching this essay, I sift through dozens of exoneration articles—stories about people like Fred. The stories form a collective failure of justice. Dates and names blur into a monolithic critique of the American criminal justice system and its overpolicing. In many of these articles, the mystery of the crime and drama of the subsequent legal proceedings overshadow the life of the innocent person at the center—the person left to wait in prison, out of sight and mind.
But each name on the registry represents years of life surrendered to the state, a singular and specific experience accessible only to those who lived it. Wrongful conviction is a free society’s heart of darkness—an unthinkable, yet enduring reality.
As I think about how to tell Fred’s story, I wonder if we are stuck in a cycle of exoneration and media coverage. If perhaps wrongful conviction is doomed to continue and we are doomed to tell about it. Does the audience appeal lie only in the mystery, the suspense of each set of circumstances that lead to the same result?
Kavanaugh believes that our current moment offers “more deep and careful journalism around some of the more nuanced aspects of wrongful conviction.”
“You don’t have to dig all that far to find fairly sophisticated efforts,” she says.
Some of this coverage can be helpful. Kavanaugh cites the podcast Serial as one example. Yet, “as I listened to it,” she continues, “I thought about how I’d feel if a client of mine was the subject. It does feel exploitative, even if there are some tangible benefits.”
I wonder about the potential benefits of telling Fred’s story—if this is any different from most true-crime storytelling. I’m aware of my whiteness, my privilege. I’ll never know the extent of his suffering; maybe it’s presumptuous of me to try.
*
Kavanaugh holds a party at her house for the office and the innocent clients they helped exonerate. Fred is there along with a number of other exonerees, including Sean Ellis, who arrives with a camera crew. They’re filming a documentary about him. Kavanaugh is mic’d throughout the party, and I sign a waiver to appear in background shots. I wonder if this is the kind of coverage Fred had in mind for himself.
Ellis hugs Fred when he enters. “Finally, man,” he says. My dad explains that Ellis’s charges were just officially dismissed a few days prior. “He was accused of killing a cop too, so it was a real tough one.”
Ellis’s sentencing resulted from mistaken witness ID, misleading forensic evidence, and official misconduct. Neither Fred nor Ellis’s cases dealt with DNA evidence.
“The vast majority of crimes are committed without any DNA being left behind,” Kavanaugh says. “DNA represents the tip of the iceberg. There are many, many more cases where we’re not able to ever know, but have every reason to believe they got it wrong.”
Darrell Jones and Natale Cosenza are among the other guests—they served 32 years for murder and 15 years for burglary and assault, respectively. Jones is celebrating his one year of freedom anniversary, while Cosenza, it turns out, spent time in the same prison as Ellis.
“I remember walking past Nat, seeing him, and not knowing he was going through the same struggle I was,” Ellis recalls.
Fred remains mostly in the background during the speeches and toasts, smiling up from his seat. Everyone jokes that Fred is the quietest of all of them.
“I’m glad he’s here,” Ellis says, raising a glass.
“Me too,” Jones says.
They’ve all met a few times before, at an innocence conference and some public speaking events. They even went skydiving together, courtesy of Kavanaugh’s nonprofit Running for Innocence, which fundraises for innocence-related events and programs.
“It’s the ultimate freedom,” Fred tells me. He’s gone twice now. When he was in prison, Fred says, he and his friends would talk about what they wanted to do when they got out. Skydiving was always at the top of everyone’s list. “The first time I went, I kind of did it for them,” he says.
“The second time, I did it for me.”
