After a letter of opposition from Middlesex DA John Droney was read into the record, Smith was asked to testify. He sat before the seven members of the advisory board and answered questions for two and a half hours. Smith told them about growing up in Oxford, Mississippi. He told them about his military service. He told them about his young son in New Jersey who had no mother and, for the past ten years, no father as well. He told them about his efforts to educate himself. At one point a board member asked Smith how he’d managed to take college-level courses despite an eighth-grade education.
I learned myself and my room is a young library, Smith answered proudly. I’m not dumb or stupid or smart, I’m just in between.
The only worrisome moment came when they asked Smith about his lie detector test, and he could give them no easy answer for why he had not passed it. The hearing ended at 3:40, and afterward Smith, Cohen, Emmanuel, and Parker walked into the quad in the early winter dusk. Smith was ecstatic. All he had to do, he wrote to Joan Stevens, was wait a few weeks to find out whether the board had ruled in his favor. If they did, their recommendation would be on the governor’s desk in months.
As far as Smith was concerned, he was halfway home.
IN THEORY THE commutation process in Massachusetts for murderers has nothing to do with guilt or innocence. A trial jury’s decision on a man’s guilt is considered to be the most sacred and untouchable aspect of the law, and the advisory board does not want to turn every commutation hearing, in effect, into a second trial. Neither does the board decide whether he has been “punished” enough, or whether his crime was exceptionally heinous; they simply decide whether the prisoner in question can become a productive member of society.
That is the theory. In practice, doubts about a petitioner’s guilt cannot help but creep into the proceedings. And there is a good reason for that: A truly innocent petitioner would obviously make an excellent member of society, and since that is the very issue that the board is trying to determine, there is every reason for them to consider the possibility. They cannot decide a man’s guilt, but they can use their doubts about his guilt to decide his fitness for civilian life. On January 7, 1974, the board finally met to decide on Smith’s commutation. Their decision was quickly relayed to Beryl Cohen, who must have called Smith as soon as he got word. The advisory board, Cohen told him, had unanimously voted to recommend him to Governor Sargent for commutation. If the governor signed the papers and the Executive Council approved (this body reviewed all clemency pardons), Smith would be eligible for release on March 11, 1975, twelve years after the effective date of his life sentence.
Governor Sargent was a liberal republican in a liberal state who—unlike governors in some other states—did not particularly care if a commutation caused him political harm. He also had an unswerving sense of right and wrong and was unafraid to take positions that many other politicians wouldn’t touch. He spoke at the first Earth Day; he ordered state flags to half-mast after the killings at Kent State; he backed legislation that disputed the legality of the Vietnam War. Still, his principles were not enough to win him reelection, and before he could sign Smith’s commutation, he was pushed aside by a fiscal reformer named Michael Dukakis, who had promised to solve the state’s financial crisis without raising taxes. Dukakis did balance the state budget, but he did it by putting through one of the biggest tax increases in Massachusetts history. That did not give him much political leeway on other issues, and when he took over the governor’s office, he sent back for review the dozen or so commutations that were waiting on the governor’s desk. Roy Smith’s commutation was one of them.
By this point Smith was running the gatehouse kitchen, which served 150 staff meals a day, and working most days in an experimental work-release program at Medfield State Hospital. He wrote Joan Stevens that he was basically sleeping at the prison at night and not much more. This was about as good as the prison experience gets for a lifer, but it was far short of what Smith wanted. He was desperate to find his son in New Jersey, who was fourteen by now and could barely remember him, and he was desperate to have a steady relationship and a regular job. These were all things that had been beyond his reach before he went to prison, but he was capable of them now, and only a signature on a piece of paper stood in his way. The thought of it drove him crazy.
The magic day, March 11, 1975, came and went and still Smith was in prison. Spring turned into summer and summer into fall, and his commutation just seemed to make endless rounds between the advisory board, the governor’s office, and the Executive Council. As infuriating as the process was, Smith could at least be reassured that he had virtually done the impossible: It was unheard of for a lifer to be considered for commutation after only ten years, and the only explanation was that a lot of people had to have doubts about Smith’s guilt. Pardons Board Paul Chernoff gently alluded to this in his first recommendation to the governor’s office: “During the more than ten years of his incarceration, Roy Smith has maintained his innocence of the murder of Mrs. Goldberg,” Chernoff wrote. “The trial took place during the period of time in which the activities of the so-called ‘Boston Strangler’ were most fearful. Much public commentary speculated that Smith was the Strangler. The jury reached a verdict of guilty after only two hours.” A later brief to the governor added: “It is the belief of the Advisory Board that further incarceration may constitute unfairness because of possible equities [sic] involved. The members are satisfied that further incarceration would serve no useful purpose.”
As much as the advisory board might balk at the idea, the fact that Smith’s possible innocence had affected their decision inevitably meant that they had acted to some degree like a trial jury. And as such, they were in the same position that Smith’s jury had been in 1963: They were trying to determine an objective truth with subjective tools, and they would never know for sure whether they were right. There was one important difference, however. The board’s best guess was based on their experience with an unending parade of truly guilty people, whereas the jury’s best guess was based on their experience with one person who was possibly guilty. And in the board’s opinion, Smith just seemed different. He did not seem like all the other guilty people they knew.
The least disturbing explanation for why this might be is that Smith was such an ingratiating charmer, and so relentlessly self-serving, that he managed to mold himself into exactly the kind of person that a liberal parole board would respond to in the mid-1970s. He conned them, in other words. The other possibility is a lot more troubling: that Smith was truly innocent. And if he was truly innocent, the Massachusetts judicial system—at least as it existed in 1963—failed not only Smith and the Goldberg family but also, in some sense, every other person in the state.
FOUR DECADES LATER the only way to know with absolute certainty whether Smith was guilty would be to compare DNA taken from the semen inside Bessie Goldberg with DNA taken from Smith’s body. If they matched, he raped and killed her, end of story. But no state keeps evidence indefinitely, and the rape kit that was collected at the crime scene has long since been destroyed. Lacking DNA evidence, the only other way to improve upon the jury’s wisdom of 1963 is take the evidence that existed at the time and retroactively apply forensic and legal advances that have occurred since then. If a forensic scientist were handed the crime report today, in other words, could he prove that Smith committed the rape? If a homicide prosecutor were handed the Bessie Goldberg murder file, would he be able to convict Smith? To indict him? To even arrest him?
The evidence of rape is the easiest to evaluate because it is a simple matter of physics and chemistry. In 2004 a forensic scientist named Karolyn Tontarski examined the autopsy reports from the Bessie Goldberg murder. (Tontarski used to work for the Massachusetts state police crime laboratory and is considered one of the top DNA experts in the country.) Her first conclusion was that the rape and murder had to have happened at the same time. If Bessie Goldberg had had sex with her husband a week earlier, as Israe
l Goldberg claimed, bacterial yeasts would have broken down virtually all the individual sperm cells in her vagina. In fact, there were “numerous intact spermatozoa” in a vaginal swab taken from her body, which meant that Bessie Goldberg almost certainly had sex the same day she was killed. If the sex had been consensual, gravity would have caused some of that semen to drain downward and stain her underwear after she stood up. There were no semen stains on her underwear, however, which meant that she never stood up after she was raped. She never stood up because she was dead.
The same basic principle applies to Roy Smith. If he raped Bessie Goldberg, semen and vaginal fluid would have stained his underwear when he pulled up his pants. But Smith was arrested in the same clothes that he’d been wearing the day of the murder, and there were no stains on his underwear and only a small one on the outside of his pants. “The sperm on Smith’s zipper is not remarkable because of the absence of sperm on his underwear,” says Tontarski. “The item of clothing closest to the body tends to have the most bodily fluid. The presence of sperm on a man’s clothing, in and of itself, is not that remarkable—it was probably from a prior sexual encounter. There are inconsistencies with the analysis of Roy Smith’s clothing which would indicate he was not the perpetrator.”
Evaluating Smith’s interrogation is more complicated because there is no way to prove by someone’s behavior that he or she is lying. But you can come close. Interrogations are extremely stressful events, even for the innocent, and almost no one can completely control his or her responses when being questioned about a murder. A classic law enforcement manual called Criminal Interrogation and Confessions describes in detail the typical behaviors of an innocent and a guilty person. The guilty take, on average, three times longer to answer a direct question than the innocent. The guilty tend to touch their hair or their face or pick lint off their clothing when they talk. The guilty tend to repeat a question before they get around to answering it. The guilty tend to offer specific denials that are technically true—“I did not take $1,200 from the cash register yesterday!”—rather than general denials that are false. The guilty tend to apologize for the misunderstanding. The guilty tend to look for some sign of partial understanding. The guilty tend to use non-specific language about their actions that leaves wiggle room for later questions. The guilty tend to veer from angry to sullen to ingratiating and then back to angry again. The guilty tend to slouch in their chair, cross their arms, look away, and not move for long periods of time. The guilty, in other words, act guilty. Controlled studies have showed that trained investigators who watch silent videotapes of interrogations can correctly tell if a subject is lying 72 percent of the time. When the sound is turned on, their accuracy rises to 86 percent.
Innocent suspects are an entirely different matter. The innocent tend to get angry and stay angry. They tend to insist on continuing the interrogation until they are cleared as a suspect. They tend to sit straight up, look the questioner in the eye, and answer questions quickly if not eagerly. They tend to describe their actions in excruciating detail. They tend to continue voicing their denials even after they have been told to be quiet. The innocent, in short, see the interrogation not as an ordeal to be survived, but as an opportunity to clear their name. First and foremost the innocent tend to answer questions without having a lawyer by their side.
In 2004 a Boston homicide prosecutor named David Meier read a transcript of the interrogation of Roy Smith. (Meier had been chief prosecutor for the Suffolk County DA’s office for the past ten years.) He also read the autopsy report on Bessie Goldberg and the state police crime report. Meier is an exceptional prosecutor in that he has not only put many murderers in prison but has also reversed previous murder convictions that were false. David Meier was asked to evaluate the Roy Smith case file—crime report, autopsy and interrogation—as if it had landed on his desk today.
The first thing that strikes Meier, generally, is that Smith agreed to answer questions without a lawyer. He’d been in and out of the corrections system, Meier points out, so he knew how the process worked, and he knew that he had the to right to remain silent until a lawyer was appointed to him. And he chose not to. He answered literally hundreds of questions about his activities on March 11 without resorting to the infuriating vagueness of most guilty suspects. In many cases he offered even more information than the question demanded. Roy Smith, in fact, confirmed virtually every detail about his work at the Goldbergs’ that the police asked him; the only point that they disagreed over was whether Bessie Goldberg was alive when he left.
“It isn’t often that you see someone talking in that kind of detail and have it be lies,” says Meier. “Because arguably the only thing he lied about—if you believe the verdict—is whether or not he killed her. Everything else he says, as far as I can tell, is a hundred percent accurate. He says he was there, he says she got a phone call, he says exactly what she was doing, cleaning the pictures, taking them down, she gave him lunch—I mean he obviously remembers exactly what was going on, how much he was paid, down to the penny, how he went outside. If there were a lot of lies, the classic situation is when you can say to the jury, ‘Everything the suspect told the cops was a lie, it didn’t fit.’ But he tells them everything they already know. I mean I’ll be honest with you: If someone was to present these police reports to me, I’m not sure I’d even authorize the police to make an arrest.”
The oddest thing that Smith did was to say that he left the house later than he really did. “Why not say, ‘I was in the pharmacy at 2:30’?” Meier wonders. “Let’s assume he kills her after the phone call at 2:30—why doesn’t he get himself out of the house? Why not say, ‘I went to the pharmacy at 2:30’? Or even why admit that he went to the pharmacy at all? The people in the pharmacy say he was there at 3:05 or 3:10. The girls have him on the street at 3:05. But he seems to think it’s even later, quarter to four. He’s erring against himself. If he wants to cover his tracks, he wants to get out of the house as quick as he can after killing her. And here’s a man who, stupid as he may be or uneducated, he knows the employment office has a record of him. They said, ‘You’re going to Scott Road in Belmont.’ He was assigned to that house, he was married to that house. Which is why it doesn’t make any sense. Why would he kill that woman? Why not go to a strange house? Why not go to the house next door? It presupposes that he killed her in an act of momentary rage, and if that’s his pattern or lifestyle, one would think he would have had other incidents. The last several years I’ve been involved in a number of murder cases in which defendants convicted of murder were later proved to be innocent. Once someone gets locked up—even now, never mind in 1963—once Roy Smith got arrested for killing Bessie Goldberg, everyone who thought they saw something is now convinced they saw something. Every one who thought they may have seen a black man in the neighborhood moving quickly now knew they saw a black man in the neighborhood, running. That’s just a human tendency.”
In Meier’s opinion, there was almost no doubt that Smith was innocent.
ON MARCH 6, 1976—nearly one year after Smith was supposed to have been released from Norfolk—the Advisory Board of Pardons once again met to discuss his case. By unanimous vote they again decided to grant him his freedom, but only if the Massachusetts Executive Council concurred; by law there can be no commutation without the approval of the executive council. The date of his parole would be twelve months after the executive council made their decision, whenever that might be. The advisory board sent a letter to Governor Dukakis stating their recommendations, and on March 12, the governor signed a letter to the Executive Council saying that he concurred and would leave the final decision to them.
Smith’s commutation languished at the executive council for the next four months. On July 1 Smith wrote a letter to Joan Stevens updating her on the progress of his case. He wrote that it was graduation day for the college program that he was enrolled in, but that he wouldn’t be able to attend. “For the first time in my life I been very sick
for over a month,” he wrote. “They sent me from Norfolk Hospital to Lemuel Shattuck Hospital, in Jamaica Plain. I still have another test to go yet, I am waiting for the doctor to come back from vacation. My commutation papers are due to go up before the Governor’s Council this month some time. And again it’s election year and they are afraid of the kick-back, so as usual I am good on getting caught up in the worst of everything. Well, you drive slow while you are transporting those teenage bodies (smile) and take care. As always love, your friend, Roy.”
On July 28 Judge Paul Chernoff received word that Smith—who had been experiencing respiratory problems for the preceding year—had been diagnosed with tuberculosis and lung cancer and was back at Shattuck Hospital. Smith had smoked his whole life and had undoubtedly started smoking even harder once he got into prison. Chernoff fired off a letter to the governor stating that, in light of Smith’s illness, the advisory board recommended that Smith’s sentence be commuted immediately. Two days later, on July 30, Smith began a ten-day course of radiation that would total 2,500 rads over ten days. The course would be repeated several weeks later.