Court orders new trial for man convicted of helping to murder a Roxbury cobbler in 1974

The Supreme Judicial Court today agreed one of three men convicted for the murder of a Dudley Square cobbler trying to protect his son from them on Dec. 10, 1974, deserves a new trial because of questions about eyewitness testimony and the failure of Suffolk County prosecutors to turn over evidence that might have bolstered his claim of innocence.

Given the newly discovered research findings that shed light on the flaws in the eyewitness identification procedure, as well as the Commonwealth's failure to provide exculpatory evidence, we agree with the motion judge that "justice may not have been done" in this case. Accordingly, we affirm the motion judge's grant of the defendant's motion for a new trial.

Raymond Gaines, now in his 70s, was sentenced to life in prison without parole in 1976 for his role in the murder of Peter Sulfaro of Mission Hill in his shoe-repair shop on Palmer Street, near Dudley station. The two men he was allegedly with, were also convicted and sentenced to life. Gaines has been free since 2021 as he pursued his legal request for a new trial.

According to the court's summary of the case, three men - two holding guns - entered Sulfaro's shop around 4 p.m. as Sulfaro's 15-year-old son worked the register. The unarmed man, allegedly Gaines, asked for change for a dollar and when the son opened the register, reached over and began grabbing money. Sulfaro came out from the back and the two men with guns opened fire.

Sulfaro, 54, died at Boston City Hospital a couple days later - one of 134 murder victims in Boston that year. Besides his son, he left his wife and five other children.

The three men made off with $120, some of which they allegedly spent in an apartment being run as a shooting gallery in a nearby housing project where they rented some needles to inject themselves with heroin. Gaines fled Boston and was eventually arrested in Des Moines, IA, "after cleaning staff discovered a knife in his motel room." On a plane on the way back to Boston with BPD officers, Gaines allegedly made a confession, but the officers did not record it.

In the years following his conviction, Gaines filed three motions to have his concurrent life sentences - one for the murder, one for the armed robbery - overturned on the grounds of mistaken identity, but judges rejected them all, at least until 2018.

Through an open-records request, he got a copy of two affidavits by David Bass, the man who was renting the shooting-gallery apartment: The first, in 1990, averred that his identification of Gaines there was "all lies" and only an attempt to curry favor with police to try to win the release of his own son and a friend out of jail, while the second, in 1991, said his first affidavit was itself a lie and that he had seen Gaines in his apartment.

In 2021, a Superior Court judge agreed that Gaines deserved a chance at a new trial and ordered him released from prison to let him formally file a new motion for a retrial. In November, 2022, after hearing his case - which also brought up more modern evidence on the less than perfect reliability of eyewitness accounts - a judge agree and ordered a new trial. The Suffolk County District Attorney's office appealed.

The judge agreed that Sulfaro's son had become an unreliable witness to his father's death, both through the passage of time and because he may have been guided by a BPD officer:

In Sulfaro's first identification, he wrongly identified Hamilton and Daniels [the two men with guns]. Then, shortly before his second identification procedure, Sulfaro received a telephone call from an officer named "Murphy" with the Boston police, who informed Sulfaro that he had gotten his first attempted identification wrong. This second procedure used the same photographs that Sulfaro had seen the first time, with the sole addition of the photographs of Anderson, Funderberg, and the defendant. It was only then, about two months after the murder, and after both a prior identification and a highly suggestive telephone call, that Sulfaro identified the defendant.

And then there was the evidence, which Gaines's lawyers discovered, that might have helped his case that prosecutors did not give to his trial lawyer - as they should have - a document that supported Gaines's case that he couldn't have been involved because of a leg injury that made it difficult to walk, another indicating that, in fact, somebody in BPD had called Sulfaro's son about his identification of the two shooters and a third suggesting that Bass, the man with the shooting-gallery apartment, was a less than reliable witness all on his own:

Through postconviction discovery, the defendant obtained documents from the Boston police department that had not been disclosed by the Commonwealth. These documents include (1) an undated note indicating that the defendant was shot in the leg and was using crutches and a cane "about two months ago" (injury note); (2) an undated note from the Boston police file on the shooting in which an individual named "Frank Murphy" transcribed information concerning the Sulfaro murder investigation (Murphy note), corroborating Sulfaro's statement that he received a telephone call from a "Murphy" who told him that his first identification was incorrect; and (3) records indicating that O'Malley arrested David Bass in April 1976 -- two months before trial -- for possession of hypodermic needles and syringes and, further, that charges against Bass remained pending when Bass testified at trial and were dismissed shortly thereafter.

The judge also slammed prosecutors for the way they sat on Bass's initial affidavit - the one he filed in 1990 - for more than 26 years - before turning it over to Gaines.

In turn, the state's highest court, upheld the judge's reasoning, starting with the use of new research into eyewitness identification, which it said was "newly discovered evidence" that would have been " 'a real factor in the jury's deliberations,' such that a new trial is warranted."

We conclude that the motion judge did not err in determining that the developments in eyewitness research constitute newly discovered evidence. As the motion judge noted, the field of eyewitness identification research did not even exist until years after the defendant's trial.

Moving onto the documents not given to Gaines's trial attorney, the court concluded:

We agree with the defendant that the Murphy note, as well as the arrest of David Bass by O'Malley two months before the defendant's trial, both qualify as exculpatory evidence and that the defendant was prejudiced by nondisclosure of this evidence. ...

The arrest of David Bass two months before the defendant's trial constitutes undisclosed exculpatory evidence.

More specifically:

Bass's arrest was related directly to the underlying facts of the defendant's trial. Bass was arrested by O'Malley, a homicide detective, for the operation of the very shooting gallery where Bass, in his testimony, placed the defendant on the day of the murder. Further, Sulfaro initially identified Hamilton and Daniels -- Bass's brother-in-law at the time of trial and Bass's stepson, respectively -- during the first identification procedure, providing Bass with another motive to curry favor with the government by testifying against the defendant. Although Bass's testimony against the defendant was echoed by that of his wife and Hamilton at trial, both of those witnesses would logically share the same motive as Bass, given that Sulfaro's first identification implicated both Lorene Bass's son and Hamilton himself. Then, after Bass testified, the charges against him were resolved.