Frances Choy Was Not Exonerated

Frances Choy confessed at least three times to murdering her parents. An accomplice also told the police that she was guilty. Forensic evidence tied her to the crime. Yet the New York Times published a story painting her as a victim of a wrongful conviction. Buzzfeed News wrote that Frances Choy was “exonerated.” So does The Boston College Chronicle described her as “cleared.” The Milford Daily news headline is “The Truth Has Been Revealed.” What happened?

The Facts

In April of 2003, the Frances Choy was a high school senior living with her parents and her nephew, Kenneth Choy. (Choy v. Com. (2010) 456 Mass. 146.) Early one morning she called 911 to report a fire in her home. Firefighters arrived and rescued Frances and Kenneth Choy. Frances did not appear upset and displayed no visible signs of injury. Firefighters went back in the house to rescue Frances Choy’s parents. They were hospitalized and each died that day as a result of smoke inhalation and burns. Expert testimony from Sergeant Jeanne Stewart, a State police fire investigator, indicated that the fire was set intentionally and appeared to be designed to spread toward the parent’s bedroom. Additionally, fire investigators found gasoline throughout the house and on the defendant’s sweatpants.

Frances Choy confessed to the crime to several different people. A State police sergeant testified that Choy told him that she resented her parents because they prevented her from spending time with her boy friend, assigned her extensive chores, and planned to force her to live at home when she entered college. Additionally, she told the officer that she believed she was the beneficiary of a life insurance policy purchased by her parents. Another police officer testified that on two occasions the defendant admitted that she planned the fire and placed containers of gasoline throughout the house, but on both occasions she immediately retracted her statement.

Kenneth Choy also admitted that Frances was guilty. Police found handwritten notes by Kenneth Choy in his bedroom after the fire. They contained a step-by-step checklist on how to set the house of fire. He spoke to the police as well. He told police that he made the notes at the defendant’s request as part of a joint plan to set fire to their home.

The Conviction and Appeals

Frances Choy was tried twice; both trials ended in hung juries. She was tried a third time an convicted of murder and arson charges in 2011. Kenneth Choi was tried in 2008 and found not guilty. At trial, he claimed that the fire was Frances Choy’s idea.

Ms. Choy continued to appeal her conviction. She hired new lawyers. They hired an expert to testify that there was actually no gasoline on Ms. Choy’s sweatpants, in contrast to a police expert who testified that there was. They found a friend of Kenneth Choy’s who they claimed would testify that Kenneth Choy was more involved than he claimed. In September 2020, a judge vacated the 2011 convictions.

The appeal was vacated on two grounds. First, Frances Choy’s lawyers “uncovered” evidence that Kenneth Choy had worked alone and then blamed Frances Choy. Second, the lawyers uncovered evidence of emails by prosecutors that were racially offensive. They contained pictures of Asian people accompanied by pejorative comments. They also contained jokes about Asian stereotypes. For example, one of the emails compared Kenneth Choy to a character from the movie “Sixteen Candles.”

During her appeal, the prosecutor’s office filed a motion saying he would not prosecute the case further. The New York Times described that decision in this way: “With that motion, Ms. Choy was officially exonerated and freed after 17 years in detention, according to her lawyers” from the Boston College Innocence Program. Incredibly, Ms. Choy, 34, thanked her lawyers, her family and her friends “for always believing in my innocence.”

Police have no other suspects. No was has explained who set the fire, if Frances and Kenneth did not.

Having Your Case Dropped is Not “Exoneration”

When a jury acquits you, they are not finding that you are innocent. The jury simply finds that the evidence did not prove you guilty beyond a reasonable doubt. That’s why the verdict is called a “not guilty” verdict, not an “innocent” verdict. You may still be guilty by clear and convincing evidence even if you are not guilty beyond a reasonable doubt. Acquitted defendants are not innocent.

In this case, the prosecutor’s office declined to try Ms. Choy a fourth time. This is also not a court finding that Ms. Choy is innocent. Prosecutor’s decline to prosecute for many reasons, such as a lack of evidence, the fact that the defendant is serving a long term on another case, or even the fact that staff are not available to prosecute the case. None of these are an innocence finding.

This is Criminal Law 101, but many news outlets consistently make this mistake. It’s much worse when lawyers do this. Ms. Choy’s lawyers, who are law professors, know the difference between “not guilty” and “innocent.” Yet they still went around the national media puffing themselves up by claiming that this was an exoneration. It wasn’t.

Misconduct Unrelated to a Case Should Not Be Grounds For Overturning the Case

Prosecutors should not send racist emails about their cases. There’s no excuse for that. The prosecutors who did that in Frances Choy’s case were out of line and should have faced consequences. Those consequences can and should include reprimands at work and even from the Massachusetts State Bar. We should stand by our principles that the fair administration of justice means that people in the justice system should be accountable for their misconduct.

But we need to remember an important fact. None of the misconduct by prosecutors in this case had any bearing on whether or not Frances Choy was guilty. A racist email is not the same thing as framing someone for murder. A racist joke is not right, but it does not change the strength of the evidence in court. In this case, a judge took what should be a personnel issue, got herself involved, and used it to overturn a jury’s decision. The judge did this even though there was no showing that the emails in this case affected the trial at all. As far as I can tell, no one explained how the emails translated into an unfair trial for Frances Choy. Why would you overturn a jury conviction because of misconduct that didn’t affect the fairness of the trial?

Imagine that you were a relative of Frances Choy’s parents. Imagine that you were someone that loved Frances Choy’s parents. Their names were Anne and Jimmy. They burned to death. You would want justice. You would want the person that burned them to be held accountable. You learn that the two teenagers are the only suspects, that one has confessed several times, and that the other had notes with arson instructions written on them. You watch as the prosecutors work hard, over the course of three trials, and eventually secure a conviction.

Then, a judge comes along, 17 years after the crimes, and decides to punish the prosecutor’s office for their racist emails, by robbing you of the justice you waited for. How is that fair to you? How is that fair to any one of us that want Anne and Jimmy’s death to mean something?

Perils of Plea Bargaining

“Justice and liberty are not the subjects of bargaining and barter.”  (Shelton v. United States (5th Cir. 1957) 246 F.2d 571, 579.)  This noble statement is simply not true: 90% of all convictions in the United States are obtained by plea bargain, rather than by trial.  The system of plea bargaining, therefore, has almost overwhelmed the system of trial by jury, and we must be constantly aware of how it may go wrong.  Specifically, we should guard against conflicts of interest on the part of the lawyers that my produce unjust outcomes for victims and defendants.

Lawyers’ self-interest can skew the outcomes of plea bargaining.  On the defense side, a public defender may be, and in some places always is, overworked.  A new case may come in for arraignment that would contribute significantly to the attorney’s workload.  In that situation, the defense attorney may recommend a quick plea bargain to dispose of the case.  This might not even be a bad thing.  When the public defender is dumping this case in order to focus on her more significant cases, the defendant in those significant cases may benefit.  In this way, the public defender is exercising something like prosecutorial discretion.  It is not controversial, after all, for a prosecutor to refuse to file a relatively unimportant case because her energies are already spent on other more important cases.  Defense lawyers do not have this formal power, but if they are willing to accept bad plea deals, they have this power in practice.  I have even seen this in action, especially in misdemeanor courts.  In this situation, the defendant loses his right to aggressive representation on his behalf.

Prosecutors, in turn, may be motivated to make unnecessarily lenient plea offers.  Even the best criminal code is written in general language, and there are often problems in application to individual cases.  As Albert W. Alschuler has said, “individual prosecutors may be influenced […] by a desire to smooth out the irrationalities of the criminal code.”  (Alschuler, The Prosecutor’s Role in Plea Bargaining (1968) 36 U. Chi. L.Rev. 50, 71-79.)  Prosecutors may be faced with weak cases that they still believe in.  For example, if a prosecutor believes she can prove a case beyond a reasonable doubt but feels that it is very unlikely, she may plea bargain to ensure a conviction, regardless of whether the punishment is too lenient.  Better something than nothing, after all.  Prosecutors may plea bargain to avoid harsh minimum sentences.  They may also plea bargain to protect victims who do not wish to testify.  None of these motivations would constitute a conflict of interest.

But there are other, less reputable reasons why prosecutors may plea bargain where conflict of interest rears its ugly head.  Prosecutors are often evaluated on their performance by looking at their trial statistics.  More guilty verdicts are better, obviously, than hung juries or acquittals.  Ambitious prosecutors, and we are all ambitious, pay attention to this record more than any other measure of performance.  When a difficult case comes along, this type of evaluation puts prosecutors in a tough position.  The prosecutor may feel that the defendant deserves a particular sentence.  Let’s say 20 years, for example.  But she knows that the case is difficult to prove, and that juries are unpredictable.  If the defendant is willing to take 10 years, a prosecutor may be tempted to agree to this to preserve her trial record.  After all, if she takes the case to trial because she doesn’t feel that 10 years is a punishment that fits the crime, she risks a loss on her record.  A loss that would be held against her when her performance is evaluated.  How much more important is justice (that the punishment fit the crime) than the prosecutor’s career?  It’s a question that shouldn’t have to be asked, but that I’m sure is asked all the time.

The problem of conflict of interest during plea bargaining is particularly acute with private defense attorneys.  It may even be in a private defense attorney’s self-interest to recommend rejection of a favorable plea agreement.  For example, if a private defense attorney bills by the hour, his economic self-interest would be to spend as many hours on the case as possible.  A favorable offer at the beginning of the case would nip that opportunity in the bud.  A private defense lawyer may run into the same problem if they are charging by the motion, if they are able to charge more for a writ, for a habeas corpus proceeding, or to handle an appeal.  Private lawyers may even want the practice of conducting a trial, to improve their trial skills, regardless of the potential consequences for their clients.  On the other hand, many private attorneys are paid a flat fee to take a criminal case, regardless of whether they dispose of it quickly or take it to trial.  It’s much easier to take the fee and take the plea than to prepare a complex trial.

Plea bargaining will continue until more lawyers are hired or less cases are filed.  Many people feel that the current situation cries out for reform.  When someone’s freedom is at state, it pays to do things right.

Too Much Hart

Three years into my job as a prosecutor, I still feel shockingly ignorant about the big picture of criminal law.  I don’t mean the nuts and bolts of doing trials, I’ve figured that out, and I don’t mean criminal procedure and evidence, I’m doing fine there.  What are they saying about the purposes of criminal law?  What are they saying about the fundamentals?

To answer these questions, I’ve been reading The Aims of the Criminal Law by professor Henry Hart.  Written as “a revision of a mimeographed note” in 1958, professor Hart formulates the basic purposes of criminal law for the layman.  (HartThe Aims of Criminal Law, 23 Law & Contemp. Probs. 401 (Summer 1958).)  It was “originally prepared for first-year law students to serve as a supplement to other materials.”  Professor Hart describes it as “being elementary” and ” not attempting a comprehensive examination of competing views of the criminal law.”  (Ibid.)

Hart was from Butte Montana, a mining town.  He left to get his undergraduate degree at Harvard in the 1920s, when the town was almost completely owned by the Anaconda Mining Company.  He attended Harvard as an undergraduate and a law student, where he was president of the Harvard Law Review.  In the 1930s he even received two post-law school degrees, an L.L.M. which I’ve heard of and S.J.D which I have not.  That gave him three Harvard law degrees, making him the most Harvard-y person I’ve ever read about.  Hart was a fixture at the law school until his death in 1964, just 6 years after publishing this article.   The text became famous: enough people have read it to publish a book of reactions to it.  The book appears when you look through Amazon’s criminology section.  That’s how I first learned of the article, which I found with google.

Hart looks at the aims of criminal law from the perspective of each of the institutions involved.  I’m slowly reading the article, but I couldn’t help but skip ahead to the section discussion prosecutors, who are lumped in by Hart with the police.  Hart has a startlingly negative view of prosecutors, to say the least.

Hart starts by noting that prosecutors and police “have a lesser role” than others, but nevertheless, we should understand them in order to “better control their activities” and to educate the legislature about “what responsibilities ought to be given them and of the consequences of unwise imposition of responsibility.”  (Ibid a p. 428.)  Specifically, Hart worries about prosecutorial discretion, because it is “far greater than that trusted to any other kind of official.”  This discretion, he says, leads to unequal enforcement of the law, as prosecutors choose who to prosecute and who to pass over.  This transfers “from the legislature to enforcement officials the de facto power of determining that the criminal law in action shall be.”  (Id.)

Prosecutors should be confined to prosecuting truly serious crimes, which he calls “securing compliance with […] the basic obligations of responsible citizenship.”  By prosecuting only serious crimes, the prosecutor’s “discretion will tend to be reduced o the minimum which the necessities of the administration of law admit.”  In other words, the prosecutor should only prosecute crimes that are so serious that there can be no reasonable disagreement over whether they warrant prosecution.  Any prosecutor who takes her job seriously must prosecute these types of crimes.  The absence of choice in this way is the absence of discretion.  Hart suggests that the proper role of discretion is to make judgments “concerning the sufficiency of the evidence to warrant further investigation or formal accusation, what charges to make, what pleas to accept, what penalties to ask for, and the like.”  (Id.)

Having now warmed up to his theme by arguing that prosecutors have usurped the power of the legislature, and that their broad discretion should be reduced to a minimum, Hart brings out the big guns.  “The stupidity and injustice of the thoughtless multiplication of minor crimes receives its most impressive demonstration in police stations and prosecutor’s offices.” (Id.)  Prosecutors, faced with limited resources, cannot prosecute everyone who commits a crime.  This renders the legislature’s enactments futile, Hart complains.  Sporadic enforcement, which is how Hart describes the state of things, “has an inescapable residuum of injustice” and entails “unprincipled discretion.”  (Id. at p. 429.)

It gets worse.  The prosecutor is likely to prosecute those she sees as morally blameworthy.  This despite the fact that Hart thinks the legislature intended that all violators be prosecuted regardless of blameworthiness.  This creates blameworthiness as an additional element of the crime.  Yet this cannot be disproven by the defendant, according to Hart.

I haven’t finished the article, but on first blush, it seems that Hart deeply misunderstands the role of prosecutorial discretion.  He clearly favors a system in which the prosecutor’s discretion is reduced to a minimum.  But in such a system, every violation of the law, no matter how technical, is prosecuted.  We could never afford to follow Hart’s advice, of course, since 95% of our cases are not tried but resolved by plea bargain, and prosecution of every guilty person to the exact letter of the law would require in the area of 20 times more prosecutors.  Even if it were administratively feasible, it would not be desirable.  Prosecutorial discretion is used to give victims and defendants a case-by-case look at the requirements of justice.  If a pimp and a prostitute are arrested, it is prosecutorial discretion that allows us to treat the prostitute as a human trafficking victim rather than a criminal.  When an undocumented immigrant commits a minor crime, prosecutors exercise their discretion to charge crimes that will not lead to deportation.  Diversion programs, which are extremely popular today for everyone from drug addicts to veterans and first-time offenders, are an exercise of prosecutorial discretion.  Perhaps Hart thinks we should prosecute a drug addicted veteran with no record that commits a minor crime.  After all, he says the legislature intended that “all violators should be prosecuted, regardless of moral blame.”  (Id. at p. 429.)  Apparently Hart believes that the legislature is unaware of prosecutorial discretion.  Perhaps he thinks they are unaware of the executive branch altogether.  But there are situations where prosecuting everyone regardless of moral blame is not what our communities want.  It would be unjust.

Luckily, Professor Hart was not given discretion to implement his ideas about the role of prosecutors.