The Fence: A Police Cover-Up Along Boston's Racial Divide (25 page)

Hussey was feeling terrible about Mike Cox. He’d met Mike at the academy in 1989 when he was an instructor and Mike was a new recruit. He’d followed Mike’s start on the force and knew about Mike and Craig Jones’s feats on the street. He’d learned recently from Mike that Daley was the officer who’d tried to arrest him after the beating. Mike told him a chance encounter with Daley at the academy had triggered his memory. Then, in interviews with other guys in Mike’s unit, Hussey learned that after the beating, Daley told Sergeant Ike Thomas that officers working the streets in plainclothes needed to wear “jackets so people know who you are.” To Hussey, it was certainly looking as if Daley knew something about what happened on Woodruff Way.

Daley arrived for the interview with an attorney provided by the police union. Although he’d been born in England, Daley, now twenty-nine, had grown up in Boston. Like so many officers involved in the chase, he’d been a member of the force for only about five years—a period during which the department’s shortcomings had been subjected to intense public scrutiny, including the Brighton 13 police brutality trial.

Daley stood nearly six feet tall, but seemed smaller, given his slight build. He took a seat in one of the four chairs at the table in the center of the room. A tape recorder was on the table. Daley appeared uncomfortable. The truth was he’d been struggling. In the weeks since the beating, Daley had sought guidance—quietly and carefully. He turned to another officer from the Roxbury police station, Jimmy Rattigan. Rattigan, the driver of the cruiser that crashed to avoid a head-on with the gold Lexus, was a union representative. Rattigan said, “He approached me; I wanna say three or four, five different times. He even called me at home; he was very upset.” Rattigan liked Daley. “He was a pretty nice guy, never a problem officer or anything, a good officer.” The pressing question Daley had for him: What if—what if someone saw something?

Rattigan’s gut told him Daley was not one of Mike’s assailants, but had information about the beating. “I felt he probably, maybe, observed something.” It was a hunch based in part on Daley’s anguish. “He was really bothered by this, and really worried,” Rattigan said. “If he was any more upset he would have been bawling.” If Rattigan was correct, Daley was caught in a no-man’s-land where no cop wanted to be: torn between telling all and fulfilling his duty as a police officer sworn to uphold the law, and telling little and fulfilling his duty to the unwritten police code of silence. “He wanted to tell me, you could see it,” Rattigan said. “It was in his face.” But Daley never went beyond the hypothetical with Rattigan, and Rattigan told him he needed a lawyer.

The two investigators Hussey and Cruz turned on the tape recorder at 9:20
A.M
. Daley began at the beginning of the night, explaining he rode alone that shift in a marked police cruiser known as the Bravo 431 unit from the B–2 station. He described his involvement in the chase for the gold Lexus, and he used a diagram of the dead end at Woodruff Way to indicate where cars stopped. His cruiser was right behind the Lexus.

Daley said he ran to the left side of the cul-de-sac, then to the right, then back and forth. While running up and down the fence, he said, that was “when I saw the person bleeding.” He didn’t recognize the man. “I said, ‘Who are you? Who are you?’” The man did not answer. When the man unzipped his jacket, Daley saw that the man was a cop. He didn’t know the cop and afterward learned his name was Mike Cox.

Daley was pretty much finished. The investigators warned Daley, “If it’s proven you are being untruthful you can be terminated.”

Hussey, for one, was incredulous that Daley had not seen Mike Cox when Mike began chasing Smut Brown toward the fence. Daley had come to a stop right behind the Lexus and Mike’s cruiser. “You never saw anybody run right in front of you?” Hussey asked. “You didn’t see him run right in front of you, is that what you are telling me?”

“Yeah. I can’t see everything.”

“Right in front of you.”

“I don’t know. I said, I don’t know.”

Daley’s answers grew increasingly halting.

“You are not appearing very sure of yourself,” Hussey said.

More than a half hour had passed, and Hussey had heard enough. “What if I told you that Michael Cox described a black male, approximately five-nine—and that someone was going to put handcuffs on him. Who do you think that would be?”

Daley said nothing. Hussey followed with another question: “Did you ever tell Officer Cox to put his hands behind his back, who you thought was a suspect at the time. Then you told him, ‘Put your hands on the car.’”

Daley still said nothing. Hussey kept going; he had the floor now. “Michael Cox might have been unconscious that night but his recollection is a lot better today.”

Daley did not say a word.

“Officer Daley, I’ll ask you, please, don’t make yourself more trouble than you have already. Okay. Be truthful with us. Don’t be untruthful. It will ruin your reputation the rest of your career.”

Daley spoke, not to answer a question, but to ask one. “Can I talk to my lawyer?”

Sergeant Detective Cruz shut off the tape recorder. Following a short break, Cruz fiddled with the machine. “Okay, it’s 10:35
A.M
. I’m turning the tape back on.” The tape recorder ran for one minute more—just long enough for Daley to assert his Fifth Amendment right against self-incrimination. “I no longer want to speak to anyone.”

The interview was over. Daley had made his choice. His words were the last he would ever say to Boston police investigators regarding the beating of Michael Cox.

Between February and March, investigators for Internal Affairs interviewed fifteen Boston police officers. Mostly they were stiff-armed—as when Daley “lawyered up” and shut down his interview. Jimmy Burgio’s interview never got started; he showed up just long enough to assert his privilege against self-incrimination. Dave Williams, saying he had “nothing to hide,” actually met twice with investigators. He then began with the canard that he and Burgio barreled into the cul-de-sac in separate cruisers. He even penciled in a phony location for Burgio’s car right behind his own cruiser on a diagram. Hussey and Cruz already suspected the story about two cruisers was bogus. Hussey warned Williams about telling the truth. “I’ll ask you again. Officer Burgio—was he in the car with you?” Williams admitted he was—he and Burgio did ride together.

Williams was caught in the lie. Hussey pounced. “See, David, what this is, it complicates matters if you are not being up front, truthful with us.”

“I’ve been truthful with you the whole time,” Williams insisted.

Hussey wasn’t impressed. “I have a problem here,” he said. “We have an officer that was severely beaten and we are pretty convinced that an officer did it. Probably mistakenly. Okay. But I have two major problems. First, the amount of beating the suspect took, who turned out to be a police officer. And secondly, when the people found out he was a police officer they walked away and left him bleeding on the ground.”

Hussey was looking to leverage Williams’s admission into something bigger. But Williams did not budge. He stuck to the story of complete innocence he outlined in his written report—that he’d jumped from his cruiser and caught one of the suspects after a foot chase in the front of the gold Lexus. Williams was talking about a suspect who, in fact, did not need to be chased, who was already down and accounted for soon after Williams’s cruiser hit him. It didn’t matter. Williams said he didn’t see a beating.

Not every interview was as unproductive as Williams’s. Investigators did pick up bits and pieces. In addition to Ian Daley’s comments about what plainclothes officers should wear, for example, Donald Caisey added that while writing police reports Daley told him he was sure cops had beaten Mike. Investigators learned about the similar statement Dave Williams blurted out in Mike’s bay in the hospital emergency room—that he thought cops had beaten Mike. Craig Jones added the information about his encounter with Dave Williams in the upstairs hallway of the Roxbury police station. Craig said, “His exact words to me, he thinks his partner may have hit Mike by accident.”

Richie Walker had a tantalizing tidbit. The dreadlocked cop disclosed he saw a Boston police officer following Mike Cox as Mike ran toward the fence after a suspect. He said the officer had to be from one of the three police vehicles that arrived ahead of him—either Cox’s or Daley’s or Williams’s—because, he said, “no one passed by me.”

But Walker’s comment was a tease. His memory turned all fuzzy after that. He said he could not recall if the officer was in uniform or dressed in plainclothes, whether the officer was white or black. “I couldn’t say,” he said. “All I know is I saw figures going forward.” Most frustrating, he denied seeing Daley, Williams, or Burgio at all.

Investigators at one point were hoping gang unit partners Joe Teahan and Gary Ryan might be able to build on these leads. After all, the pair said their car was the fourth one in. Hussey and others interviewed them three times—more than any other officers—but they got little back. Hussey said flat-out at one point he thought they knew more. But the two gang unit cops were dug in: They saw nothing. By their account, they arrived after the beating and in time to find Mike on the ground. It didn’t matter that on key points they contradicted each other—or others contradicted them.

The sessions proved a disappointment to Hussey, featuring the same monotonous drumbeat of “yes,” “no,” and “I don’t recall.” After the stack of skeletal reports and a bunch of know-nothing taped interviews, Kenny Conley and Bobby Dwan came across as breaths of fresh air. The Form 26 report Kenny prepared was a detailed, typewritten account of the night that at 520 words stood out as an opus—up to ten times longer than most of the reports turned in by nearly sixty police officers. In his, Kenny wrote he thought they were the third police car at the dead end, while Bobby said they were the fourth or fifth. Both were mistaken; they were farther back than that, more likely in the seventh or eighth position. But that missed the point. The point was their openness about placing themselves in the thick of it.

When asked by the investigators to identify other officers they’d seen, Kenny and Bobby did so—naming names or describing physically those whose names they didn’t know. When asked by investigators to scan through a book of officers’ faces, they did so—pointing out the officers they hadn’t known by name. In his interview, Bobby described seeing a “commotion” down to the right along the fence when he first jumped out of the cruiser and ran to the left, after an officer running in that direction. When asked about the officers down by the fence, Bobby said in that split second he hadn’t recognized them. But he did have this detail: Two were in uniform—a black cop and a white cop.

In his interview, meanwhile, Kenny was similarly forthcoming. While most officers seemed to take great pains to place themselves as far away as possible from the fence, Kenny talked in the only manner he knew—straightforward. He gave a point-by-point account of his role in the car chase and described in detail how he bolted from the cruiser, scaled the fence, and eventually captured Robert “Smut” Brown.

But for all their cooperation, the problem was Kenny and Bobby didn’t have any evidence to break the case. Bobby certainly had a tidbit about seeing two uniformed cops in the commotion, but Kenny didn’t even see a commotion. He told Hussey he was coming to a stop when down the hill he first spotted the four suspects jumping from the Lexus. “My eyes were just trained on a kid coming out of the passenger side, a black kid with a brown leather jacket.” he said during his first interview. Kenny ran after Smut Brown. “I didn’t see anything or hear anything,” he said. “I was trained on him.” Hussey asked him if he’d seen anyone else chasing the suspect, and Kenny said no.

“There could have been,” he said, “but I just kept my eyes aimed on him.”

When the sixty-five-minute interview ended, Hussey thanked Kenny for his effort to recall the night’s events. “I appreciate your candor,” he said to Kenny.

Given that, Kenny was surprised when he was called back for a second interview several weeks later. He showed up at headquarters on April 25 at the end of an overnight shift. The interview began at 6:50
A.M
. Right away, Kenny noticed Hussey and another investigator had adopted an almost abrasive posture.

Hussey’s mood swing in part reflected his frustration. The veteran cop kept expecting someone to step up and do the right thing. But no one had. He was going back to people in a position to see something, but kept getting the same evasive bobbing and weaving. He wanted to try Kenny Conley again—the rare interviewee who’d talked candidly. Intuitively, it would seem Kenny saw Mike and the assault. It was just common sense. Hussey said as much to explain Kenny’s callback. “You were in really a great position here to see what went on right at that fence because that is the location, where that guy hopped the fence, that is the location where Michael Cox received his injuries.”

Kenny understood Hussey’s thinking. But he hadn’t seen the beating.

“Do you remember seeing a commotion?” Hussey asked.

It was as if Hussey was pleading: If not the beating, a commotion?

“Out of your peripheral vision?” Hussey asked. “I know you stated before that you were focused on that suspect that hopped the fence. Did you see anybody out of your peripheral vision anywhere near the fence?”

“No, sir.”

The session ended on a testy note. It was clear to Kenny that Hussey’s view had changed. It seemed Hussey no longer believed him. Kenny left headquarters feeling troubled. He had certainly wondered why he had not seen anything besides Smut Brown. The question would haunt him for years to come. Kenny was like most people—like Hussey, even—who figured people see things they’re supposed to see, particularly when the person is a trained police officer. Most people would guess they’d notice a beating, even while in hot pursuit of another person. But what Kenny didn’t realize was this long-held assumption was plain wrong, and that scientific research conducted throughout the 1990s was debunking the popular wisdom about what people “see.” Psychologists had several names for the phenomenon, “change blindness” and “inattentional blindness.” Tests showed that people focusing on one event were surprisingly inattentive to something else in their field of vision that was salient and unexpected. But the research was far beyond Kenny’s frame of reference. All he knew was he had not seen the beating.