Hayden suspends Suffolk ADA
Exonerated man says prosecutor violated oath
A high-profile Suffolk County homicide prosecutor has been suspended amid allegations he withheld evidence that could have freed a man who had been wrongly convicted of murder.
That man, Robert Foxworth, who was ultimately exonerated in 2021, served an additional dozen years in prison after prosecutor Mark Lee learned from a federal informant that Foxworth was innocent, according to a complaint filed Thursday with the Board of Bar Overseers. During those 12 years, Foxworth’s mother died and he was not allowed to attend the funeral.
“Mark Lee, you played a major role in crippling me in life,” Foxworth wrote in the complaint to the bar overseers, which investigates complaints against lawyers. Foxworth accused Lee of defying his obligations and oath as a prosecutor to “keep me incarcerated … [and] stand by and watch me slowly die in prison.”
Foxworth was released on Dec 23, 2020, and his conviction was vacated in early 2021.
Suffolk County District Attorney Kevin R. Hayden said in a statement that Lee was placed on paid leave Thursday and that the office was launching its own probe of the allegations. The district attorney’s office had hired John Benzan of Comprehensive Investigations and Consulting to investigate, according to the statement.
The Board of Bar Overseers will conduct its own investigation, which could take a year or more.
In a statement, Lee said he understood the need for transparency in any criminal prosecution and welcomed the review. “I expect that once a review has been completed, I will return to doing the job I have proudly done for 25 years,” Lee said.
Lee’s attorneys, Tom Hoopes and Elizabeth N. Mulvey, described their client as a “prosecutor of high ethical standards” and said that the complaint against him was “simply baseless.”
Lee is deputy chief of the homicide unit. His high-profile work included helping prosecute a murder case against former New England Patriots star Aaron Hernandez.
Lee did not prosecute the original case against Foxworth, who was convicted of a 1991 fatal shooting in Roxbury of Kenneth McLean. The sole eyewitness initially only identified Foxworth from a photo array after being told by police that the suspect had a ponytail, according to court documents. Foxworth was the only man in the group of photos with a ponytail.
After his conviction, Foxworth maintained his innocence. He was released in March 2008 for 18 months by a federal court as his conviction came under scrutiny, but he was sent back to prison in October 2009.
The key moment involving Lee was in March 2007, when the prosecutor participated in an interview of a federal informant, according to Foxworth’s complaint. The informant told Lee and others that he knew Foxworth did not commit the murder, according to the complaint, because he had been involved and knew the circumstances.
Lee recognized the significance of what he had learned because he ordered Foxworth’s file from the district attorney’s archives and told others in the office they needed to investigate, according to the complaint. But Lee never followed through on his obligation to notify a judge and Foxworth of the evidence.
In 2012, Foxworth’s attorneys began pressing Lee and other law enforcement officials about the evidence provided by the federal informant. Foxworth’s attorney alleged that not only did Lee fail to provide the information, but he “delayed, obstructed, and interfered” with efforts to obtain the evidence, according to the complaint.
“Mark Lee’s misconduct was directly responsible for Robert’s years of ... excessive incarceration,” said one of Foxworth’s attorneys, Amy M. Belger. " We don’t want that to happen to anyone else.”
Foxworth said in a brief phone interview Friday night that he would march with a picket sign outside the district attorney’s office to stop Lee from wielding power as a prosecutor.
“He had this evidence. He had it!” Foxworth said. “It’s not right! He took an oath.”
‘Mark Lee’s misconduct was directly responsible for Robert’s years of ... excessive incarceration.’ AMY M. BELGER, one of Robert Foxworth’s attorneys