February 28, 1988 JUSTICE FOR BOBBY JOE By Charles Kenney, Globe Staff More than a year after being freed from prison for a crime he did not commit, Bobby Joe Leaster is savoring every moment of his new life. But the fact remains that 15 years were unjustly taken from him. how does society compensate this man? That is what the Massachusetts legislature is about to decide. It has been far too long in coming, but finally Bobby Joe Leaster's days are as glorious as can be. He rises each weekday morning by 5:30 and, in the dark of his South End apartment, dresses in laborer's clothes -- boots, heavy pants, hooded sweat shirt, St. Louis Cardinals baseball cap -- and walks down to Tremont Street, where he catches a bus that drops him off at the Boston Common. He walks a short way down Charles Street to the 7-Eleven, where he buys a large coffee and sometimes a doughnut. He then heads up Mt. Vernon Street to Louisburg Square -- with its stately town houses and wrought-iron rimmed park, perhaps the loveliest of Boston's streets. He mounts the steps of number 11, a five-story town house on the upper side of the Hill, where he is one of the workers on a large rehabilitation project. Invariably, he is the first to arrive. Since the heating system is not yet installed, he begins each day by building a fire in the first-floor fireplace. By 6:45 a.m., when the earliest of the other crew members arrive, Bobby Joe is enjoying his coffee and doughnut. He is always happy at this time, for these men are not merely co-workers but friends for whom he has much respect and great affection. "I made friends with all these guys," he says. "I love makin' new friends. I love that. These guys here have such wonderful personalities and good attitudes. To be working around such nice fellas -- it makes me feel warm inside." He is particularly pleased each morning around 7 when the boss shows up. Walter Whetstone IV, known as Scott, says he was never in the habit of "taking lost sheep into the fold," but when he found out what happened to Bobby Joe he wanted to help; had to help. He gave Bobby Joe a job and is delighted that he did. Though the two men come from sharply different backgrounds -- Bobby Joe is from the rural segregationist South, while Whetstone is a product of the affluence of New Canaan, Connecticut -- they have found an unlikely though precious new friendship. Bobby Joe handles a variety of tasks on the job -- carrying materials up flights of stairs, doing some carpentry, installing Sheetrock, and more. What he does, says Scott Whetstone, he does promptly and well. At 3:30 p.m., his workday done, Bobby Joe heads down Beacon Hill, hops the bus, and rides back home. He stops there only to get his workout clothes, then walks over to Mike's Gym, not far from his apartment. Monday through Thursday he lifts weights from about 4:30 to 6:30 p.m. In the evening he relaxes, watching TV at home with his fiancee, June Wallace, and her son, Andre. On weekends he and Scott Whetstone might take in a basketball game at Boston College or at the Garden. It's an unspectacular life to be sure, yet he loves everything about it. More than anything, he loves the freedom. It has been 14 months now since his emancipation. Bobby Joe was freed from a prison sentence imposed for a crime he did not commit. He went into prison when he was 21 years old and was released when he was 36. Somehow, he kept his sanity. He says he did it by always thinking positively. "Regardless of how things turn out I always look on the bright side, and there's always a bright side to everybody's life," he says. He inherited the attitude from his parents, who, no matter how grim times got in the poverty of the segregated South, never lost hope for a better life. Faith helped as well. "The man upstairs smiled on me. He said, 'Get through this, and your life is gonna be grand! This is the test. You gotta get through this first.' " Those who've come to know this most remarkable of men find it truly extraordinary that Bobby Joe Leaster is not hopelessly embittered. Quite the contrary. This quiet man who had never in his life committed a crime -- whose worst offense was, as a kid, sneaking off to go fishing when he was supposed to be in church -- happily savors each moment of his new life. He is as simple, as decent, as gentle as a man can be. He doesn't often think about the effort by his lawyers to persuade the state Legislature to pay him $950,000 as compensation for the years he spent behind bars -- years that might well have been the best of his life, when he might have furthered his education, developed his career, perhaps bought a home, started a family, or helped his parents. His lawyers believe the state has a moral obligation to try to do something to repay Bobby Joe Leaster for all that has been taken from him. Naturally, h e hopes he will get the money. It would make for a more comfortable life for his family-to-be, but he is not obsessed with the idea. It's difficult to imagine his personality changing, whether he gets the money or not. He is so steady, so even-tempered and unflappable, that he sometimes seems unreal. Has he had even one single unhappy day since he was freed? Not one. "There's nothin' out here that fazes me after what I went through for 15 years in prison tryin' to keep my sanity. Being free feels good. It feels wonderful. It's like comin' back from the dead. Every day I wake up in the mornin' and I enjoy gettin' up. I know I can just walk out my door and catch the bus and go to work. I can't tell you how good that feeling is." Bobby Joe Leaster's freedom was unjustly taken from him on September 27, 1970, when he was arrested and charged with a murder he did not commit. He had not been in Boston long. In the spring of 1969 he had left his home in Reform, Alabama -- a segregated rural town near the Mississippi border -- and came to Boston to join cousins who'd traveled north and found work. Late in the afternoon on that September day, a man named Levi Whiteside was shot and killed during a holdup at his variety store in Roxbury. Ninety minutes later Bobby Joe Leaster was standing on a street corner in the South End. He had left an apartment he shared with his girlfriend to buy her a pack of cigarettes and to visit his nephew. He was standing on St. Botolph Street, wearing clothes that fit the description of those worn by the man who had killed Levi Whiteside, when a Boston police officer arrested him. Police took him to Boston City Hospital, where Kathleen Whiteside had just identified the body of her husband. Sh e was hysterical and had been twice sedated. Police presented Bobby Joe Leaster, in handcuffs, to Mrs. Whiteside. Is this the man? She said he was. Later that day at the police station the police asked her again. Is that the man, they asked, indicating Bobby Joe, who was now in a cell. Mrs. Whiteside said she thought that was the man. But she hesitated. She said she wasn't sure. In front of a grand jury, the prosecutor asked a woman who'd been in the store at the time of the murder whether she'd seen the shooting take place. Nellie Rivera said she had not; that she was bent over tying a pair of sneakers at the time. In open court her story was different. The prosecutor asked during the trial whether she'd seen the shooting. Yes, she said, pointing to Bobby Joe. On the day of the shooting the police conducted a paraffin test to determine whether Bobby Joe had fired a gu n. The results did not indicate he had. Also on the day of the shooting, Bobby Joe told police he'd been with his girlfriend, Judy, at her apartment all afternoon. When police went to Judy's to confirm his alibi, she was frightened. This was, after all, 1970, when a black man living with a white woman was, to many, still taboo. Judy lied. She did so, she said later, "because of their attitude and because they wouldn't tell me why they wanted to know. They were very abrasive, very gruff." Judy is positive Bobby Joe is innocent of the crime, because he was with her eating a pork chop sandwich at the time. There were other indications of his innocence. During the struggle in the store, Levi Whiteside hit his attacker in the face with a mug. Bobby Joe had no cuts or bruises on his face. Also during the struggle, the killer's Bulova watch was knocked to the floor. When Bobby Joe was arrested he was wearing a Timex. There was no physical evidence -- not a shred -- linking Bobby Joe Leaster with the death of Levi Whiteside. Nonetheless, after a trial during which many believe he was poorly represented by a court-appointed lawyer, Bobby Joe was convicted of the murder and sentenced to life in prison. And for six years it appeared his cause was hopeless -- that he had plummeted through a massive crack in the criminal justice system and that he would continue in a nightmarish free fall for the rest of his life. But Robert Muse and his son Christopher, two Boston lawyers, broke his fall. What started for the Muses as just another appeal quickly became an impassioned crusade. They believed this man, believed in him. For nine years the Muses worked to convince the courts of Bobby Joe's innocence, to win his freedom, but year after year they met only with failure. Finally, in the spring of 1986, the Muses and Bobby Joe went before the Massachusetts Advisory Board of Pardons and asked that Bobby Joe's sentence be commuted. The board voted unanimously in July of 1986 to do just that. The governor had yet to act on the matter when suddenly everything changed. Mark Johnson, a Boston school teacher, read an article about Leaster in the Globe Magazine. Johnson was astounded to see photos of Bobby Joe -- astounded because he had been near the scene of the crime moments after the murder took place. Johnson, who was 13 years old at the time, had seen two men fleeing, and neither was Bobby Joe Leaster. Johnson came forward and testified that he was absolutely sure neither of the men was Bobby Joe. "When I looked at the picture of the person Bobby Joe Leaster, who was alleged to have committed the murder, I knew that they had the wrong person," Mark Johnson stated in a deposition. On the basis of that testimony, Bobby Joe Leaster was granted a new trial. Superior Court Judge John J. Irwin Jr. ruled that there was "a substantial risk that the jury would have reached a different conclusion" if the new evidence had been available at the time of the trial. No doubt the finest day of Bobby Joe's life came on December 26, 1986, when the Suffolk County district attorney's office announced that it would not bring him to trial again. The first thing Bobby Joe did was thank the Muses, father and son. When he thinks back, he shakes his head in wonder and says: "If it wasn't for the Muses, God knows . . . I don't know what would have happened to me. I don't even want to think about that." Bobby Joe traveled by train back to his family's house in Alabama, an extremely humble home that in newspaper photos looked for all the world like a sharecropper's quarters. His mother had visited him twice while he was in prison, but he had not seen his father in 17 years. When he saw his youngest child, William Hayes Leaster said: "I left him in the hands of the good master. I prayed for him every night. I got an answer -- today." After he was granted his freedom, Bobby Joe Leaster displayed the attitude that continues even now to amaze those who meet him. "I don't have any bitterness in my heart," he said at the time. "This is a day to rejoice." More than anything else it was his extraordinarily positive attitude that people found so attractive about Bobby Joe. I'm not bitter at all," he said. "I understand that a terrible, terrible mistake has been done to me. I understand that. And a lot of time has been taken out of my life for nothin'. I have said to myself over and over again, I'm not bitter, because at this point in my life now I have no ti me to be bitter. Because if I be bitter now and get out of here spending my time bein' bitter at the world, at the same time, the world is passin' me by." He says he never had any trouble adjusting to a life of freedom after 15 1/2 years in prison. "Every day I feel a lot more comfortable," he says. "I have control of my life again after so long of other people governing basically your whole life -- all of a sudden you out and you doing things you want to do when you want to do them and not when somebody else wants you to do them. I like that." The sweetest thing of all is "being free. Being able to go and come as I please, and the people I have met since I've been out. Scotty and his family. I'm good friends with Scott, very good friends." Both men love basketball, and they went together to the Garden to see Boston College play Syracuse. Scott Whetstone has also encouraged Bobby Joe to work toward getting a driver's license, and Bobby Joe plans to start driver- education training soon. After reading the article that appeared in the Globe Magazine in late July of 1986, Scott Whetstone wrote a letter to Bobby Joe offering him a job. "I was pretty strongly affected by the article. I figured Bobby Joe needed a break." Bobby Joe has proven to be a very good worker, says Whetstone. "He's very reliable. He gets along with everybody, works hard, and he's here all the time." So far, Whetstone says, Bobby Joe has made a good deal of progress. "He has the aptitude for it. He has a good working knowledge of the terminology and the process of construction." Whetstone specializes in finish-carpentry work, but on the Louisburg Square job they are several months away from that. Whetstone believes Bobby Joe will "enjoy the finish work more." Although if he hasn't enjoyed any part of the job so far he hasn't let on. Bobby Joe has been working continuously on the project longer than any other member of the crew. Others left and came back, or quit entirely -- some "because they didn't want to dig, others didn't want to deal with the plaster dust. This is dirty, terrible work," says Whetstone. Bobby Joe has also made frie nds in the neighborhood where they work. One morning after a heavy snowfall, Whetstone noticed Bobby Joe out shoveling the sidewalk in front of the house next door. A group of nuns live in the building, and Bobby Joe later explained: "Most of those nuns in there is old people, and I don't want to see 'em come out there and fall and hurt themselves." Whetstone has become so attached to Bobby Joe that to celebrate his first year on the job Whetstone hosted a dinner for 25 of Bobby Joe's friends and co-workers and their wives and girlfriends at a Chestnut Hill restaurant. Whetstone hired a limousine to bring Bobby Joe and June to dinner and to take them home afterward. Bobby Joe's ambition is to have a family. He met June several years ago while out on a furlough. June became pregnant last year, but, sadly, she miscarried. They hope to have a child this year. Whetstone is pulling for them. He is touched by the recollection that when his own son was born last year, the very first person to visit in the hospital was Bobby Joe. If Bobby Joe has learned from Whetstone -- and he has learned a great deal -- the reverse is also true. "He has had a pretty profound effect on me," Whetstone says. "He is an amazingly peaceful man. He doesn't have an evil thought. We've had lots of heart-to-heart talks about the way he wants things to go. We're real good friends, not just co-workers. His spiritual qualities are pretty intense. If I went through the same experience, I have a feeling I'd be very bitter, that I'd have a lot of rancor toward society in general. "He has quite a way of making everybody feel good. He has a good attitude about everything. He's not cynical at all. He's an extremely enlightened man." The Muses believe they know who killed Levi Whiteside. And there have been hints from an assistant Suffolk County district attorney that the DA's office shares their belief. When assistant DA Francis O'Meara appeared in court on December 26, 1986, to drop the case against Bobby Joe Leaster, O'Meara explained that he and an investigator named William Powers had spent countless hours looking into the Leaster case. O'Meara said in court that during the course of their work they focused increasingly on a criminal named Kelsey Reid. O'Meara said that Reid "had committed a number of armed robberies in the Boston area" around the time that Levi Whiteside was murdered -- robberies "for which he was caught, convicted, and sentenced." Then O'Meara made a startling announcement. He said that he had discovered that the handgun used to kill Levi Whiteside -- a .22 caliber long barrel -- was used during a robbery 16 days after Levi Whiteside was murdered. Police chased the men who committed the robbery, and during the chase one of the men threw away the gun. The man was Kelsey Reid. The gun, ballistics tests conclusively proved, was the one used to kill Levi Whiteside. And it all took place on a night when Bobby Joe Leaster was locked in a cell at Charles Street Jail awaiting bail. O'Meara said during an interview that Reid often worked with a partner named Peter Gardner (Bob Muse says he has seen Gardner's name also spelled "Gardiner"). O'Meara also said that around the time of Whiteside's murder, the two men "were hitting everything in town except the number." Ever since the murder, O'Meara discovered, Reid's name has been "swirling about in prison" in connection with the killing. Just 10 days before the murder, O'Meara says Reid was arrested in Grove Hall while buying a .22 caliber pistol, what O'Meara described as Reid's weapon of choice. O'Meara attempted to crack the case. He visited Gardner in prison in late 1986 and asked whether Reid had killed Whiteside. Gardner would not talk. O'Meara is not optimistic about catching the real killer or killers. He says the case against Reid, as it now stands, is far too weak to bring to trial. "Nothing is ever a dead end, but I'm not sure what the next step is here," he says. "We've spoken to everybody who could be spoken to." Says Chris Muse: "We have completely rebutted and contradicted everything the government said about Bobby Joe at his original trial. He was mistakenly identified. . . . Not only do we show he didn't fire a gun, i.e. the paraffin test, but the gun was found in the hands of another guy committing an identical type of armed robbery." In addition, he says, there were reports that Kelsey Reid and one of his criminal partners bragged in prison about doing the murder for which Bobby Joe served time. The Muses are absolutely convinced that the real killers will be caught eventually. There is no statute of limitations on murder, and they believe it is only a matter of time before someone who knows about the crime breaks down and provides police with information that will bring the killers to trial. In the coming weeks, the Massachusetts Legislature will consider a bill & that has been filed on Bobby Joe Leaster's behalf. The bill reads in its entirety: "That for the purpose of discharging a moral obligation and subject to appropriation, there be paid to Bobby Joe Leaster out of the treasury of the Commonwealth the sum of nine hundred fifty thousand dollars as compensation to him for having been convicted and sentenced to imprisonment for a murder committed in the city of Boston in the year nineteen hundred and seventy and for having been so imprisoned from June, 1971, to November 3, 1986, when he was released, his conviction having been vacated on the basis of newly discovered evidence indicating his innocence of the said murder, after which prosecution was dismissed at the request of the Commonwealth on December 26, 1986." Chris Muse repeats the words over and over again: "To discharge 'a moral obligation' . . . Fifteen years in prison for a wrongful conviction. He is an innocent man. With the motion for a new trial granted, he is presumed innocent. He is as innocent of the murder as you or I." Bob Muse passionately believes Bobby Joe should be given substantial compensation. "Everyone who touched him believed he was innocent," he says. "We watched the tenderloin of his life being taken away from him." But he got through it, says Bob Muse, thanks to "a simple and beautiful faith in God. That faith spilled over in us. We had all reflected on our own blessings. We had for the first time found someone truly innocent. I don't know how you compensate a person for 15 years of deprivation. How do you compensate for it? Money is weak compensation, it's bad compensation, but it's the only compensation." The Muses could file suit against the state on Bobby Joe's behalf, but they don't want to do that. "I don't want litigation," Chris says. "It shouldn't be litigated. It's been put through the courts too much already." Chris Muse says that the money works out to approximately $7 per hour for the time Bobby Joe spent in prison. The Muses, as well as numerous other lawyers, including Thomas Ford, Ron Kovner, Peter Muse, Jim Byrne, Mark Sullivan, Bill Kennedy, Joan Feeney, Bobby Wheeler, and Richard Hayes, have put in an extraordinary amount of time on Bobby Joe's case during the 10 years he has been their client. The Muses estimate having spent more than $400,000 worth of legal time on the matter. They have never received a cent as payment for their services, and if the state grants Bobby Joe the money, the Muses' bill will remain the same -- nothing. Bobby Joe doesn't talk about the money much, says Scott Whetstone. But once in a while he can't help but put his dreams into words. "He wants me to build him a house," says Whetstone with a smile. "If he did get serious money, it wouldn't change his lifestyle. A flashy lifestyle doesn't appeal to him at all." Whetstone fervently hopes that Bobby Joe will get the money. "He deserves something," says Whetstone. "With all of the money that they waste they could certainly put some to good use." Rep. Thomas Finneran (D-Dorchester) is one of four legislators sponsoring the bill, which was originally suggested by the Muses. Finneran says he is doing it because "15 years of a young guy's life has just been taken away from him on the basis of a mistake made. It's a mistake that can happen to anyone at anytime. When it does occur we have an obligation to try to make up something. I don't know in all honesty how to make up 15 years of a guy's life, but there has to be an attempt. When mistakes are made we have to come forward and do something. In our society remedy is typically financial. We certainly can't give him the 15 years he lost. "This is a societal mistake. We make mistakes. We obviously made one in this case, so now you try to restore. . . . It's outrageous, and we should have the guts to acknowledge it and the guts to pay this guy back." There have been very few efforts by persons wrongfully convicted to collect money from the state. The only successful one in recent times was in 1958, when the Legislature gave $12,500 to Santos Rodriguez after he spent 28 months in Norfolk State Prison for allegedly smothering a woman in a Springfield rooming house. The real killer confessed. The bill that provided Rodriguez with the money, like the bill filed on behalf of Bobby Joe Leaster, stated that its purpose was to discharge "a moral obligation." In 1983 both the House and Senate approved a bill giving at least $75,000 to Lawyer Johnson, a Roxbury man said to have been wrongfully imprisoned for 10 years on a murder charge and then freed in 1982. That bill, however, died at the session's end. There are precedents in other states. Perhaps the best known involved a New York man named Isidore Zimmerman, who spent 25 years in prison for a crime he did not commit. Six years ago Zimmerman was awarded $1 million by the New York Court of Claims. Sadly, very soon thereafter, Zimmerman died. The most recent -- and famous -- Massachusetts case requesting compensation for a wrongful conviction involved George Reissfelder, who was imprisoned for 13 years for a murder he did not commit. In bot h 1984 and 1985, Reissfelder's attorney, Roanne Sragow of Boston, asked the Legislature on his behalf for $900,000. Reissfelder had been convicted 17 years earlier of first-degree murder in connection with a shooting during a robbery at South Station. In 1974 Reissfelder escaped while on furlough. Three years later he was arrested in Florida and charged with attempted murder of a police officer who was trying to arrest him for writing a bad check. In the summer of 1982 Suffolk County District Attorney Newman A. Flanagan dropped the South Station murder case after a new trial had been ordered. It was based in large measure on evidence from a dying codefendant who had told a priest that Reissfelder was not his accomplice. The House Ways and Means Committee rejected the compensation bill both years that it was filed. "Both times they shot me down," says Sragow. "I appeared before Ways and Means, and people were just absolutely hostile." She still doesn't entirely understand why. Given that history, what are Bobby Joe's chances of receiving some compensation? "I think it has a pretty good chance," Finneran says. "In terms of what we finally agree upon as a figure is really anyone's guess. Will a bill make it all the way through the process and get signed by the governor that creates restitution to this gentleman? Yes, I think we have a pretty good chance. I'm encouraged by the sponsors. They're inclined to break a sweat on it and to do some lobbying and some leg work o n it. And I know the Senate president is a student of the criminal justice system. I hope for a sympathetic audience over there." Finneran predicts that at some point during legislative debate someone will argue that "this is not the right time. Well, when the hell is the right time? It wasn't the right time to put this guy away for 15 years, either, but we did it." Bobby Joe Leaster speaks in a quiet, even voice: "I think I deserve it, given what happened to me and everything. I can't get back all the time they have taken away from me -- I understand that. One of the things taken away from me was the chance to give something to my mother and father. I lost the opportunity to help them. The first thing I would do is go down South and have my mother and father, have them a house built. I feel as though that over the last 15 years I haven't been able to do anything for my parents. I didn't have the opportunity. It would be something good for me to do for my mother and father. They would love it. They would love it to death. I want to surprise them. I haven't told them nothin' about it. I don't want to get their hopes up. I would do everything I possibly can for my mother and father for the rest of their life 'cause they're not young people anymore. They know that I love them more than anything in this world. I want them to be able to say, 'My son did this here for me.' "I'd buy a nice house for me and June, and we would get married and have a family. I would get together with the right people and invest and keep making money. I would keep working." But as hard as he tries not to think about the money, the prospect sometimes awes him. "I never had nothin' in my life," he says, not as a complaint but as a statement of fact. "I never had nothin' in my whole life. For this to happen . . ." His voice trails off, he shakes his head, speechless at the thought. "Money have a way of changing everybody. But I don't think it would change me as far as my attitude or nothin'. It could change my life for the better. My attitude would remain the same. I would be the same Bobby Joe Leaster, but the way I would live would change -- I would have a better life for my family. I would settle down and be a family man. I would set up a trust fund for my daughter or my son. I would make sure that they are well taken care of. . . . "I don't think about the money very much at all. I'm very optimistic. I just go from day to day and live my life. If I don't get it I will feel bad, but, hey, you know, that's life. I would go ahead and continue to live my life the way I'm doin' now. "The thing about me is after what they did to me -- they took the best years of my life away from me -- anything now they don't give me don't mean nothin' because I am a survivor. I will survive. I will continue to live.
State to Pay Wrongly Jailed Man