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[00:00:01]

From NPR, this is Hidden Brain. I'm Shankar Vedantam. On the night of the murder, there's bad weather in Boston. It was a rainy night and I went back to the foster home. Fred Clark knocks on his foster mother's door. It's late autumn, 1979. Fred has been away for a few days visiting his cousins and mother in a neighborhood known as Roslindale. He knows he is probably in trouble with his foster mother. He hadn't told her he was taking off and ran away.

[00:00:37]

I just went out and they come back for a few days.

[00:00:42]

Man opens the door. It's his foster mother son. He let me in the house and he was telling me that his mother wanted to talk to me about me not being there for the last few days. Thankfully for Fred, his foster mother isn't home, she's a church, and so he let me and I went back to my room, I watch a lot of TV. I got Sunny and I eventually fell asleep. Around 930, as Fred sleeps, his foster mother returns home, she locks the front door from the inside so none of the kids in the house can leave overnight.

[00:01:21]

She's the only one with the key, so I was in that room all that all that time sleeping, I didn't know the door was locked and even though the murder was happening. Late that night, a man will be shot to death in Roslindale, asleep in his bed three weeks past his 16th birthday. Fred doesn't know it, but a boulder is rolling down a hill toward him. In a matter of days, it will make his life unrecognizable.

[00:01:54]

He's going to be arrested for the murder. Various ideas and psychology will be used to decide that he is guilty. This week on Hidden Brain, we go back four decades to retrace the steps of Fred Clay's arrest and prosecution, and we'll uncover the harm that arises when flawed ideas from psychology are used to determine that a teenager should spend the rest of his life behind bars. This message comes from NPR sponsor Verbal Summer is here and vacation is just a drive away book, your family, a private vacation home on verbal and feel that vacation feeling again together.

[00:02:53]

Download the verbal app. That's Vario. Several hours after Fred Clear returns to his foster home, cabdriver Richard Dwyer is sitting in his taxi. It's around 4:00 a.m. He's parked in downtown Boston's red light district, better known as the combat zone. Three men approached the curb, it's late, but the street is lit by the neon lights of a theater and nearby pizza shop as they get closer. Richard sizes them up. This is something he likes to do with potential customers for about 30 seconds.

[00:03:29]

He watches them all. Three are young black men. One is on the short side.

[00:03:35]

The other two are tall, over six feet. Richard, besides, the three men look suspicious. He shakes his head at them and the three turned toward another cab. 28 year old Jeffrey Boyajian is behind the wheel. Richard watches them get into the other cab, he's at the end of a 12 hour shift and he doesn't give the incident any more notice.

[00:04:00]

And so they went over to to Jeffrey's cab and and he agreed to take them.

[00:04:07]

That's Jeffrey Boyajian, younger brother, Jerry Boyajian. Jeffrey and the three men drive across the city to Roslindale. They're going to a public housing complex called the Archdale Housing Project.

[00:04:20]

When Jeffrey stops the cab, the three passengers make their real intentions clear. They ended up pulling him out of the cab to rob him inside his apartment.

[00:04:32]

A man named Neil Sweat is getting ready for work. He looks out his second floor window and sees a robbery in progress from a distance of about 75 feet. He watches the scene unfold. It still just after 4:00 a.m. and dark out, except for a single street lamp. The driver yells, Leave me alone, let me go. Neil sees the man hitting the cabbie. Jeffrey Boyajian begs for his life. One of the robbers holds Jeffrey while another rifle through his pockets, the shortest of the three walks over to the cab, then walks back to where Jeffrey is lying on the ground.

[00:05:14]

Then he raises his left arm and fired several shots into Jeffrey's head.

[00:05:21]

They killed my brother. The three men vanish. Minutes later, police arrive, they find Jeffrey lying in a pool of his own blood near a dumpster. The cops soon discovered Neil Sweat, the man at the second floor window. He's now standing in a nearby doorway. They question him. He tells them he cannot identify the killers. Later that day, Richard Dwyer learns about the murder. He's the cab driver who watched the three men get into Jeffrey Sachs.

[00:05:58]

He makes a connection to what he saw that morning in the combat zone. He calls the police and tells. He gives a vague description of the three men, remembers that two were tall and one was short, two were wearing dark jackets, one was wearing a light jacket.

[00:06:16]

All three were young black men. By two o'clock on the afternoon of the shooting, the police come up with a photo lineup. The pictures are of 12 black men, most of whom either live at the Archdale housing project or are known to hang out there. Some of the men have had run ins with the cops. Fred Clay is one of them. The police ask Richard Dwyer to come in to see if any of the photos jog his memory. Richard will later testify that he has shown the photo lineup and picks out two photos.

[00:06:53]

But Lisa Cavener, a lawyer who has represented Fred in the case, says the evidence suggests the police did something else.

[00:07:01]

First, the police decided to hypnotize him. Richard is introduced to the director of the department's hypnosis investigation unit. His name is Patrick Brady.

[00:07:13]

He had been a police officer for twenty five years at this point and held a position called The Investigative Hypnotist. He was quite clear that he didn't consider himself an expert on the nature of hypnotic phenomena. And this was only the fifth or sixth person that he had ever hypnotized. A few other police detectives and Assistant Diaz gather to watch the hypnosis session. Detective Patrick Brady tells Richard that the hypnosis would make it clear in his mind what he had seen the previous evening.

[00:07:49]

A transcript of the hypnosis using police records gives us an idea of what happened next. We had actors recreate the scene.

[00:07:58]

The detective shows Richard a ring.

[00:08:02]

I want you to notice the rose stone in the middle, uh, because as you are staring at it, it is starting to become a little hazy.

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What I'm going to do is I am very slowly going to bring the ring down in your eyelids, will follow it down as they do, and they come down with the ring, your eyes will be closed, there will stay closed, and you will be very comfortable.

[00:08:32]

He starts to calm down slowly from 20, 19, 18.

[00:08:37]

At each level, Richard is supposed to get more and more relaxed, seven, six until three to one. So beautiful and so comfortable. So peaceful. Your whole body is peaceful, so relaxed and so heavy. Next, the detective tells Richard to imagine himself at home and then to turn his television on.

[00:09:08]

Now, what is going to happen is I am going to turn the channel. And when I do, you begin this documentary and you will see it clear in your mind.

[00:09:22]

I am getting ready to turn the channel now. When the documentary begins, it will be of you sometime around four o'clock this morning sitting in your cab.

[00:09:37]

I am going to slow the frames down now. They're going very slow, slow motion.

[00:09:49]

Under hypnosis, Richard begins to watch the scene unfold. He describes the three men, their height, what they are wearing, his tall, skinny. When he arrives at the part where the three get into the cab in front of his Jeffrey Boyages cab. Richard starts to get agitated, I'm scared, scared there's nothing to be scared of, you're just watching and they're going to do something bad to him. They're going to do something. I just don't like them.

[00:10:28]

The detective decides to bring Richard out of his transcon more relaxed and relaxed to hear. Richard has shown the photo lineup, he picks out two faces, one is a man named James Watson. The other is a six year old boy fretfully. Stay with us. This message comes from NPR Sponsor Better Help every day, thousands of people seek the help of a licensed therapist and better help dotcom. If you are a psychologist, marriage and family therapist, clinical social worker or board licensed professional counselor, better help is the easiest way to apply your clinical expertise online.

[00:11:26]

With better help, you can focus 100 percent of your time on counseling, visit, better help dotcoms join, better help and complete a brief application to get started. Support for NPR and the following message come from Duck Duck, Go. Do you want the same internet but more privacy? Duck, duck, go can help. They help millions of people like you get privacy online without any trade offs. With one download you can search and browse privately avoiding trackers.

[00:11:55]

Duck, duck, go. Privacy simplified. In the movies, psychological techniques invariably elicit the truth, a clever manipulation here, a trick question there and suspects reveal all. Shortly before police hypnotize cab driver Richard Dwyer, here's what moviegoers are seeing. This is from the 1977 movie Audrey Rose. Well, I have never participated in or witnessed such an event. I am here at the behest of the court to perform a function for which I have been trained and I'm licensed to perform.

[00:12:31]

Now I will be hypnotizing the subject who will be brought to me while you watch. Today, you hear that kind of stuff and think, OK, it's Hollywood, but at the time, hypnosis seemed like a powerful technique to get at the truth.

[00:12:45]

To improve their recall, police use hypnosis to calm crime victims who are so traumatized they can't tell a coherent story or to sharpen the recall of witnesses who can't remember details. The earliest case on record that used hypnotically elicited testimony was in 1897, starting in the late 1960s, it became common for police to use hypnosis and some courts allowed it. But the method received national attention as a viable forensic tool.

[00:13:15]

Not long before Fred's case in 1976, a bus driver who had been buried alive was reportedly able to recall his kidnapper's license plate number while under the influence of hypnosis.

[00:13:29]

Still, even then, some experts pushed back against using hypnosis as a forensic tool to tell the truth, the whole truth and nothing but the truth is what witnesses are required to swear before giving testimony in court.

[00:13:43]

However, there's rising concern that one method of getting at the truth may, in fact be undermining that pledge.

[00:13:50]

The issue was debated during Fred's case. At the time, there was not a clear consensus about how valid it was to use hypnosis in criminal proceedings.

[00:14:00]

It's an issue both scientific and legal on one level of inquiry into the nature of memory on another, a classic controversy over the use of scientific tools by nonscientists.

[00:14:12]

By the 1980s, state courts started making it more difficult, sometimes impossible, to admit testimony obtained via hypnosis. Around the same time, new scientific insights about the malleability of memory were becoming more widely known. They discredited the idea that memory works like a video recording.

[00:14:34]

It's unclear how many people have been convicted on the basis of hypnosis today, 17 states still allow hypnotically induced testimony, even though most psychologists questioned the idea.

[00:14:47]

Memory does not work like that. It does not work like a video camera or DVR.

[00:14:52]

Sam Sommers is a psychologist at Tufts University. It's quite problematic when it comes to eyewitness memory. If your goal is to get people to get to their to the actual memory for the actual scene in question, if they didn't encode him at the time, it's probably not there to be retrieved.

[00:15:09]

Researchers have come to realize that memory is not just fallible, but is almost always reconstructed. We had an episode of Hidden Brain that talks about this idea. It's called Did that really happen?

[00:15:23]

Our memories are shaped by our expectations, imaginations and preconceived notions. Even the conversations we have or the media we consume after an event has occurred can reshape our recollection of it.

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Of course, that's not the way it feels inside our heads. Many of us trust our memories, especially of significant events.

[00:15:46]

Memory does feel like a hard drive that you can somehow search with the right key terms or, you know, a DVR that you can somehow pull things back from. And the subjective feeling that comes along with it perhaps is in large part why it's hard to disabuse some people, including attorneys and judges and jurors, of the notion that that's how memory actually works.

[00:16:06]

The gap between our intuitive understanding of how our minds work and the reality of how our minds actually work can sound arcane. Try telling cops or jurors that memory is reconstructed and fallible, and they would likely dismiss you as an out of touch egghead.

[00:16:25]

But in very real ways, this gap drives some of the systemic bias we see in the criminal justice system.

[00:16:32]

There are few things that are more persuasive to a jury than hearing a confident eyewitness say on the witness stand. I will never forget that face. Your Honor, it's the guy sitting right there. It's incredibly powerful for a jury to hear the. We have this lady intuition that especially when it comes to the really important things, like if I'm the victim of a crime or if I'm a witness to a murder, I mean, I'm going to get that right.

[00:17:01]

I'm going to remember that. After being hypnotized, Richard Dwyer became a very confident witness.

[00:17:12]

I pictured in my mind's eye I can picture the scene that was here. He is describing what he'd seen under hypnosis and the clarity it produced in his. It was very clear to me it was almost like a TV screen.

[00:17:31]

We reached out to Richard for our story, but he didn't respond to our request. Lawyer Lisa Kavanaugh says he still stands behind his ID four decades later.

[00:17:42]

Once you've been told that as an eyewitness, it's really hard not to believe the strength of the memory that you have.

[00:17:54]

Armed with their new leads into the killing, police go back to the housing project in Roslindale to talk to their other witness, Neil Sweat. Remember the first time police talked to Neil? He said he couldn't identify anyone. Police showed Neil the photo lineup. Neil looks at the photos now. He says still nothing. Police likely pick up a couple of things about Neil Sweat. One is he appears to be intellectually disabled. Later, according to public records, he is shown to be severely impaired.

[00:18:30]

The second thing that police discover is that Neil and his family want out of the housing project, they've been on a wait list for alternate housing for five years.

[00:18:45]

The next day, Sunday, the police come back with the same photo lineup, and that's when detectives tell Neal two things, they tell him that they have a pretty good idea who the killers are and just his help in confirming things. And they also tell him, if you cooperate with us, we'll get you out of Archdale knee. Looks at the photos. Again, nothing. But the police don't give up. There was an effort after that meeting to hypnotize him, so although Mr.

[00:19:21]

Sweat, having seen the array now twice was on, was unable to pick any photographs, he agreed to undergo hypnosis. And so he went to the station that night and they attempted to put him under hypnosis, but terminated the session after deciding that he didn't have his his concentration was too poor. And so at this point, they've shown the array to meal twice. They've told him essentially we know who was involved. The person who is showing it to him is the same person who was present for Mr.

[00:19:54]

Dwyer's identification procedures and knows exactly which two people in the array had been selected by Mr. Dwyer. So he knows who the target suspects are. Me leaves the police station and heads home the next day, Monday, police come calling again, counting the night of the murder. This is the fourth time they are asking him to make an identification.

[00:20:18]

They spread out the photos before him on the kitchen table.

[00:20:22]

The police offer another assurance that they will relocate the family, that they had made specific arrangements and that it would happen at the city of Boston's expense. And it was at that point that Neil Sweat picked out Fred Clay and picked out James Watson and indicated that he knew one of them, Freddy, by his first name.

[00:20:49]

I want to pause here a moment to draw your attention to something. Neil Sweat knew Fred Clay from Archdale. He had been shown Fred's picture in the photo lineup on two previous occasions. This is the picture of someone he knows and he said he could not identify the shooter. You imagine you saw a murder. Imagine also that the killer is someone you know. Police, please, this man's photo before you on two separate occasions and you say you can't recognize the man.

[00:21:22]

Then on round three, you say you can. Now, you might say there is a simple explanation for this, maybe Neil Sware did recognize Fred Clear from the start, but was afraid to identify someone to the police that he knew from the housing project. Maybe he feared for his safety. In fact, Neil did tell the cops he was afraid to get involved.

[00:21:46]

Maybe, but Lisa Cavanaugh and other experts say there is a better explanation and it has to do with three psychological errors that police made in the investigation, errors that many police departments to make today.

[00:22:01]

There's since the time of this investigation been extensive research on the importance of blind identification procedures and what blind identification procedures refers to is a procedure in which the person who is displaying the photographs or displaying suspects in a live array doesn't know who the target suspects are. You don't need to leap to the idea of police misconduct to see why it's problematic when an officer has suspects in mind as he's asking a witness to make an identification, even if the sort of assuming the best of intentions on the part of the police.

[00:22:43]

There have been studies showing that other more subtle cues, including body language, can lead the police to sort of guide witnesses toward a particular person or people in an array.

[00:22:55]

The second problem potentially affected both Richard Dwyer and Neil Sweat. Both witnesses were white psychologists. Sam Summers says that he has often struggled as an expert on courtroom stands to convince jurors that when a witness makes an identification, they need to factor in the question of race.

[00:23:17]

The way I've often explained this to a jury is there are two jobs, basically, that you ask a witness to do to accurately say, yes, that is the person I saw, but also to accurately say no, that is not the person I saw when it's not.

[00:23:31]

And research suggests that for both of those jobs, we tend to do a better job of that as a witness when we're dealing with faces that are of our own racial and ethnic groups as opposed to faces of the outgroup, other racial or ethnic groups.

[00:23:46]

The third problem had to do with Neil Sweat's cognitive impairments. Research shows that police interrogations are inherently coercive.

[00:23:56]

Chris Henning is a legal scholar at Georgetown University. She says Neil Sweat may have felt especially coerced by the persistent demands of the police. That's because of his intellectual disability.

[00:24:08]

Folks who fit any of these categories are particularly vulnerable to the pressures of police interrogation.

[00:24:16]

We reached out to Neil Sweat for our story, but he did not respond to our request. The night before Jeffrey Boyajian was murdered, Fred had gone to bed knowing his foster mother was upset with him. He had been away for a few days and had broken the curfew rules in his foster home. The next morning, she kicked him out and he was taken to a juvenile detention center in Halifax, Massachusetts. Fred remembers the moment the police came for him, the door squeaks every time the door opened, it squeaks.

[00:24:55]

I look over, you know, I saw some plainclothes detectives come in here and they went to the main desk and they talked to the cars for about ten minutes or something like that. But then right after that, the car got on the paging system and he called my name and my come to. So I went there and the police officer asked me, what's your name? Frederick Klein. I said, yes, my name is Frederick Clark. They said, well, we need to talk to you about something.

[00:25:23]

So they took me into a little room off to the side. They told me that I was being arrested for murder of a cab driver. And I said, excuse me, you got the wrong person. I was never in a cab. I said, I'm here for violation of probation. They said what we know about that. But we also got a warrant for your arrest, for murder. I can't repeat them that they make a mistake, they got the wrong person, they should have called.

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My probation officer is a comma, my foster parent, they can verify where I was that I just kept repeating that, make them try to make them understand that they got the wrong person. The police would have none of it. They were sure they had the right person. When we come back, how frankly was blamed for a lack of remorse over a crime he did not commit. The Boston a fretless childhood was an unsettling place for a black boy, his neighborhood, Roslindale, was mostly white, but they had austere projects and it was mostly blacks and Spanish and some white people as well, Caucasian people.

[00:26:40]

But back then, it was a lot of racial tension because it was in the busing area. Boston was at the beginning of a court mandated order to desegregate its public schools.

[00:26:52]

Boston was found guilty of willfully creating and perpetuating a segregated school system.

[00:26:58]

Students were bused between predominantly white and black areas of the city. The effort fueled a backlash against desegregation from white people and a series of protests gripped the city. The anger has manifested itself throughout the desegregation in the first days, there were isolated incidents of violence when school buses carrying black children were stoned in South Boston. So I've always been called the N-word a lot. I'm just being called a lot and being chased a lot and being and get into a lot of fights because of my color.

[00:27:35]

I remember one incident.

[00:27:37]

I was coming back from Dorchester. Fred was walking down the steps to the train platform when a group of young white men spotted him. One guy stopped talking to me, asking me where where I was, where I was gone. And what you're doing around here, you don't belong here. It was sort of just making me aware that I wasn't supposed to be there to start arguing. And then one guy, he took a swing at me. He hit me in my side of my face.

[00:28:05]

What kind of days I should have shook it off a little bit. I tried to run and I ran right in the middle of traffic, there's all kind of street traffic cars going everywhere.

[00:28:17]

I was trying to run to my house, but at the same time, I realized that my house was too far. I didn't want to run all that way, so I just stopped right in the street, traffic coming and everything else and just stopped fighting them. At that time, I was like 12 years old. Even at home, Fred did not find refuge, he lived with his mother and three siblings, I'm the oldest of four and back then my mother had an alcohol issue.

[00:28:49]

She was alcoholic. She was always drunk. There was no food in the house. It was just a whole lot of neglect. She was beaten me, she was beaten my sister, she was beat my brother, she hit me with a switch. She was she hit me with a belt. She hit me with a stenchy court. She beat me one time with a golf club. She was just picking up anything that she can get and hit me with it.

[00:29:11]

So just anything she wanted to pick up, she was hitting me with it. And maybe in all this, I sort of took the family role as the man of the house, so to speak. It was pretty much up to me to start making money and putting food on the table, stuff like that. So even at the age of 12, 11 years old, I was like sort of like like a man in a house, Fred, earn money babysitting, helping people load groceries into their cars and shoveling driveways.

[00:29:42]

Sometimes he also stole clothes or car batteries. I'm just trying to help any way I could. And I really don't know. I was just trying. Eventually, Fred got into trouble with the police. One incident stands out in his mind. This gentleman, he was a French guy. He lived in the projects. And every now and then he would reach out to me to try to clean his house, his apartment for that's another way I was making money by cleaning his apartment.

[00:30:13]

And one particular morning, I it was I think it was in the summertime. I got up, I got dressed and I went outside. And for some reason, I don't know what led me to this, but I end up breaking into his house for some reason and the police came. And it was a big commotion, a lot of people in a project saw me, my mother heard about it, so that was an embarrassing moment and I regretted it at that moment and I still regretted it doing it.

[00:30:42]

Now, thinking about that now, I still regret it. Looking back now, with the advantage of hindsight, what do you think was going on in that teenage boys head? Well, at that time, I was smoking a lot of marijuana. I was in between jobs and I needed some money not only just to get high, but just to try to put some food on a table for myself as well as my sisters and brothers are just trying to figure out a way to make money.

[00:31:07]

And if for some reason I thought of him and I thought I break into his house, I can't tell you why that thought came into my mind, but it did. By the time Fred was 16, his interactions with the police got him committed to discuss the Department of Youth Services. And I got committed and I I went to a long term residential program and I stayed in that program for about six months, they placed me in a foster home.

[00:31:36]

I guess the people, the psychologists, the therapists, they decided that the best place for me was to be in a foster home.

[00:31:46]

We already know what happened next in Fred's story. He went to live in a foster home, but was kicked out the morning after Jeffrey Boyages killing. From there, he was sent to a juvenile detention center where police arrested him and charged him with first degree murder. At the time of the killing, Fred was a few weeks past his 16th birthday. This is the next point at which flawed theories from psychology shape what happens to Fred in court. Fred's attorney fought to keep him in the juvenile system where the consequences would be less severe.

[00:32:21]

Prosecutors had a different plan. They wanted to try me as an adult. At the time, Massachusetts had a procedure called a transfer hearing, it meant that if a juvenile was going to face the full consequences of an adult criminal charge, there had to be a hearing in juvenile court first during this process.

[00:32:48]

A psychologist gave Fred a Rorschach test. This test was developed in the early part of the 20th century when Herman Roszak came up with a series of inkblots. The figures and shapes you saw when you looked at the inkblots supposedly give experts a secret window into your mind.

[00:33:07]

Fred had no idea why someone was asking him to interpret splotches of ink, he was a little past 16 being accused of first degree murder.

[00:33:17]

There was a lot going on, he just did what he was told. I just gave my yesterday told me, look at it and tell me what I thought. I just told them what I thought the picture looked like. Eventually, Fred's responses would supposedly reveal that his mind was twisted, that he was dangerous.

[00:33:38]

A judge in the juvenile transfer hearing decided after looking at all the evidence that Fred wasn't really a child, it was better to think of him as an adult because he didn't show a capacity to change for the better, he said.

[00:33:52]

I find that this juvenile, Frederick Clay, has exhibited no remorse either by action or expression since this event occurred. Remember, at this point, Fred had not been convicted of anything, he was supposed to be innocent in the eyes of the law. Fred couldn't understand why he was expected to show remorse for something he didn't do. I know I didn't kill nobody, I know I was never in downtown Boston, I was never in a combat zone, so.

[00:34:25]

I thought that they made a terrible mistake again, psychological theories this time about culpability would shape Fred's case. In the decades that followed, these theories would be revised in 2012.

[00:34:41]

A landmark Supreme Court ruling would say that lower courts made an error in treating adolescents like adults.

[00:34:49]

Chris Henning at Georgetown said the roots of the decision to try Fred as an adult, which opened up the possibility of a life sentence, cannot be disentangled from the question of racial bias and history.

[00:35:03]

The notion of childhood. Was never afforded to black children from the start of our country, black children were perceived as property and women were used to reproduce black children to serve as man power for white plantations.

[00:35:26]

And so the deep historical thinking about black children starts from the outset at a very conscious level.

[00:35:36]

And we've never really moved from that.

[00:35:43]

This idea that black children couldn't be saved or redeemed, that they weren't children has seeped into cultural norms and into the courts. It is no coincidence that the youngest person in modern America to be executed was a 14 year old black boy. It is no coincidence that Emmett Till was 14 years old when he was lynched, and it's no coincidence that Tamir Rice was 12 years old when he was gunned down by police.

[00:36:24]

After the transfer hearing, Fred was sent to adult court. The severity of the potential consequences multiplied tenfold. In 1981, Fred, at his codefendant, 20 year old James Watson, were tried together. There was no physical evidence tying Fred to Jeffrey Boyajian murder. So the state relied heavily on its two eyewitnesses, Neil Sweat and Richard Dwyer. Both were called to the stand. Neil testified that as you watch from his window, he saw Fred bring his left hand across his body and then heard at least three shots ring out.

[00:37:05]

Neil also made an incourt identification of Fred. I remember Neil Sweat getting on a stand saying that he saw me shoot this person. Fred also testified on his own behalf, the perpetrator who who committed this crime was a left handed person. I'm right handed to a perpetrator. The witness that they say saw committed this crime. They added a person as five eight. I'm not five eight. I was five for about 10 and might be five five right now.

[00:37:38]

So I was Shora. Fred's foster mother also testified she backed up Fred's alibi. She explained that he was asleep at her home, that the house was under lock and key when the shooting took place. But the jury and prosecution preferred another theory.

[00:37:55]

After the house was locked, Fred must have woken up and escaped through a window, so the only explanation was that he must have escaped out of the window, somehow got himself physically to the combat zone, gotten into the cab, driven in the cab to the murder scene, committed the murder and then gotten himself back and climbed back in through, I guess, the same window so that he was back in the apartment the next morning. That was their theory of how he could have participated in this crime.

[00:38:28]

Fred was aware throughout the trial that things were not looking good for him. I had a feeling, my, my my heart, that I was going to go to prison. I just didn't know for how much time I was going to do, but I knew I was going to go to prison. The jury heard the case, they excuse the jury to go deliberate. Maybe two or three days later, they came back with a verdict and they found me guilty of first degree murder, which means I got a natural life sentence at the age of 17 years old.

[00:39:06]

They put a kid in prison for at a 17 years old for a murder he did not commit. You know, people say they want to you know, they want to know the truth, but when you tell them the truth, they don't respect the truth. They not listen to the truth. They don't accept the truth. And when I was growing up, they had this notions about kids should be seen and not heard. And I was being seen, but I was not being heard.

[00:39:36]

At 17, Fred Clegg was effectively sentenced to die in prison for a little while, I thought about killing myself, but I don't like admitting that. But I did. But I thought, what in my mind quit and left my mind quit. But that's how angry I was. Fred was given a grown man sentence, then he was sent to live in a grown man prison.

[00:40:07]

I was scared about mine, so I was kind of not quite sure how I was going to survive prison, but at the same time protect myself, making sure that I don't get taken out of prison in a body bag. A lot of guys that been there for many years, they got certain tables that they sit in a chow hall, people was getting murdered over seats in a chow hall. I mean, that is do harm to you over a seat, so for three weeks when I first went to Walpole, I didn't sit down, know where I ate my food, standing up with my back against the wall, watching everybody while I'm trying to eat my food as quick as I can and get out of there.

[00:40:50]

It was a dangerous place. And often I thought over the years that even though my life situation wasn't great back then, my family wasn't like my family wasn't great, but they took me out of a bad situation and they put me in even a worse situation because they was telling me that they don't care about my life. I can get killed in prison. So. In a way. They must put me in harm's way. As Fred served his sentence, the misconception that he was twisted and incapable of change followed him.

[00:41:29]

Many educational programs were close to him as a prisoner with a life sentence. The implication was that there was no reason to rehabilitate him. He was never going to get out. Eventually, Fred did get into a few programs that would have him.

[00:41:44]

Once I stopped doing that, my ideas about myself, about my time, about who I was as a person changed. He started to get to know other inmates who were also serving life sentences, they hung out sometimes and talked about what they would do if they ever got out. One time they were watching a TV show about extreme sports. They have skydiving. They had bungee jumping. They had whitewater rafting and then someone start talking about, you know, if I ever get out of prison, I want to skydive.

[00:42:18]

I want to bungee jump. I want to go to a hot air balloon. And it just seemed like they was free. By this point, Fred had already spent 18 years in prison. He was in his mid 30s. He kept doing his time without any hope of ever getting out.

[00:42:44]

Then in 2012, in today's program, we're covering three new rulings issued by the Supreme Court, one of them a decision against mandatory life sentences for juveniles in homicide cases.

[00:42:56]

The Supreme Court ruled that mandatory sentences of life without parole for juveniles in homicide cases was unconstitutional.

[00:43:05]

In a five to four ruling, the justices said such blanket sentences violate the Eighth Amendment ban on cruel and unusual punishment. They said children who commit crimes, even serious ones, are different from adult. For the first time, Fred became eligible for parole. This was in April of 2015.

[00:43:31]

I had gotten some mail from the parole board that said that that Fred Clay was going to be up for a parole hearing in in May.

[00:43:45]

That's Jerry Boyajian, the brother of the cab driver whose murder led to Fred's conviction. When Jerry showed up at the parole hearing, he had his mind made up about Fred. Then something changed. They bring Fred in and he's sitting there and in the in the parole board questioning him and as he talked about how. You know, as soon as he got settled in prison, he started working on getting his GED that he you know, and he said every you know, every counseling opportunity they presented him, he took.

[00:44:27]

And during this whole time, I'm thinking this is not the person I was thinking he was. I can't reconcile this person with the assumptions that I had made of about him.

[00:44:43]

A few years earlier, Fred had started working with Lisa Cavanaugh, who is director of the Innocence Program in Massachusetts, they filed a motion for a new trial and claimed that among other problems with the case, Fred's trial lawyer had not investigated evidence that two other men at the Archdale housing project may have killed Jeffrey Boyajian in the intervening years.

[00:45:07]

One of those men had been convicted of armed robbery, arrested on the same road where Jeffrey Boyajian was killed.

[00:45:14]

He had been described as about five foot eight and is using his left hand to hold a gun.

[00:45:22]

The Suffolk County district attorney reinvestigated Fred's case DNA analysis of Jeffrey Backyardigans. Clothing turned up only his own DNA. Finally, in 2017, authorities agreed that Fred was entitled to a new trial. But the D.A. decided not to pursue charges, saying the new evidence raised significant doubt as to the fairness of his trial and the justice of his conviction, and that the interests of justice would not be served by the prosecution of this case.

[00:45:56]

Instead of being released on parole to spend the rest of his life with a murder conviction on his record, Fred's original conviction was thrown out and he was exonerated.

[00:46:06]

It is my honor and privilege to discharge you from custody.

[00:46:14]

Nearly 38 years after he was arrested, Fred was free to quote Sam Cooke a long time.

[00:46:25]

There's a first time I walked with our shark or so strange, it feels strange. There's a lot of life I need to to make up of. Just over a year later, Fred received a million dollars in compensation from Massachusetts. He was the maximum allowed under state law.

[00:46:50]

Fred is trying to cope with the many changes that took place in the world while he was in prison. I'm doing OK, just trying to still learn how to deal with life out here. But as much as some things have changed, others remain exactly the same every time I leave my house now I go to work, go to school, no matter where I'm going to leave my house, I wonder if something will happen to me. Fred is afraid that he could end up getting killed by police.

[00:47:20]

Sometimes, I think. Being a prison sort of saved my life and so in certain ways. Now I'm back out here in my life can be taken from me just just by a of my business walking to the bank, going shopping. Going to try and get some eyeglasses, don't get my eyeglass repairs and doing nothing wrong. And next thing I know. I'm being shot or I'm being killed, I'm being choked up, I have a need to my neck.

[00:47:53]

Fred also realizes that the feeling of being behind bars doesn't go away just because you are out of prison, he's had to work at feeling free. It's going to be frightening. I might. Feel like I'm falling. But there's no turning back. I have to deal with whatever life throws my way. One of the first things Fred wanted to do after his release was to find a way to honor some friends from prison. He decided to do it by going skydiving.

[00:48:28]

Some of these people end up dying in prison. So there was a way for me to say, well, he didn't get a chance to skydive. I did. So I'm living this moment through them. So it was a way for me to acknowledge them and to dedicate that moment to them. The second time he went skydiving, it was for himself stepping out of the plane felt like a metaphor for his life. When I open the door and I felt that when I hit my face and I looked out and saw how how high he was, I was scared.

[00:49:08]

I was scared. But at the same time, it was one of my more of my dreams for me to do that. So I needed to do it. Once they open that door and you and you count down to jump out and once you jump out, there's no turning back. You can't say, well, I change my mind. I want to go back. There's no turning back. My journey back into my life right now is going to be scary, is going to be overwhelming, but I got to deal with whatever comes my way.

[00:49:39]

I got to deal with that. And I went skydiving. I had that thought. I got to deal with whatever life throws at me right now because I didn't think I was gonna get out of prison. I thought I was going to die in prison. So my worst day out here is better than my best day in prison. There were two distinct avenues through which ideas from psychology affected the Frito-Lay case, some of the techniques used like hypnosis and Rorschach tests have been largely discredited.

[00:50:27]

But there were also implicit unconscious issues that continue to play a pervasive role in the criminal justice system. Police pressure during interrogations, deeply embedded ideas about the criminality of black boys leaping to assumptions about guilt, which produces the idea that someone who does not show remorse must be remorseless instead of merely innocent. Fred is not the only one who was victimized by these errors and biases. Today, we still don't know who killed Jeffrey Boyajian.

[00:51:06]

Fred's codefendant, James Watson, has been behind bars for about four decades. His sentence was based in part on the same eyewitness testimonies that put Fred in prison, just as Fred has done. James Watson is seeking a new trial. Recently, he was temporarily released from prison. It was an account of the covid-19 pandemic. And because of the strength of his claim for a new trial, the judge wrote that he has a reasonable possibility of having his conviction overturned.

[00:51:56]

This week's show was produced by Up Nacht and Path Shot, it was edited by Tara Boyd and Raina Cohen. Our team includes Jenny Schmitt, Thomas Lou and Laura Querelle. We had engineering help from Josh Nuo and Josephine Nyoni. Our unsung heroes this week are Alex Whiting and Scott Stangl. Alex and Scott helped us record fretless interview at their studio in Lowell, Massachusetts. This was the first interview we've done at a studio since the coronavirus pandemic began. Scott and Alex helped make sure Fred not only sounded great, but was also safe and comfortable.

[00:52:36]

Thanks to both. A big thank you to our voice over actors Graham Smith, Reese Thibeault and Dylan Scott for their help tracking down the source material for this episode. Thank you to Frances Kennealy and Terrence Locke of the Massachusetts Supreme Judicial Court. Chris Burrell at WGBH shared some of his own audio reporting about, frankly, with us. We're very grateful. Thanks also to test Neal at Arizona State University, Stephen Leonard at Binghamton University and Lawrence Pettiest at the University of Portsmouth.

[00:53:15]

For more hidden brain, you can follow us on Facebook and Twitter if you like this episode. Please be sure to share it with a friend. I'm Shankar Vedantam and this is NPR. Comedian Nicole Byer doesn't consider herself body positive, she just accepts herself as is.

[00:53:40]

I hate that there's a name for, like, not hating a part of who you are. Do you know what I'm saying? Like, it's insane.

[00:53:46]

Nicole Byer on her new book, Very Fat, Very Brave and How to Love Yourself. Listen to It's Been a minute from NPR.