The Fence: A Police Cover-Up Along Boston's Racial Divide (36 page)

Kenny, the indictment read, “did knowingly make false material declarations before the grand jury.” In one count, the government charged Kenny was lying when he said he did not see Mike Cox at the dead end; in the second count, the government charged Kenny with lying when he said he did not see the beating. Both constituted the crime of perjury in violation of Title 18, United States Code, Section 1623. Then, in a third count, Kenny was charged with impeding “the due administration of justice, that is, a criminal civil rights investigation” of the Cox beating “by means of giving false, evasive and misleading testimony.” This was in violation of Title 18, United States Code, Section 1503.

The eleven-page indictment, his lawyer explained, would be un-sealed the next morning in U.S. District Court in Boston, where he would be arraigned. Kenny hung up the phone. He broke down. Then he called Jen at her place in western Massachusetts. She told him she was heading back to Boston and would be there as quickly as possible.

The next day, Kenny put on a suit and met his attorney at the Boston office of the FBI to officially “surrender.” FBI agent Kimberly McAllister was waiting. She pulled out handcuffs and cuffed Kenny despite the protestations of his attorney, who pointed out that Kenny wasn’t going anywhere and certainly wasn’t a flight risk. Kenny was led away and his lawyer was told to find her own way to the federal courthouse.

The arraignment lasted only a few minutes. Kenny pleaded not guilty to the charges. He was released on a $10,000 bond and headed home. “I just felt alone,” he said. For days he didn’t want to leave the house. “I didn’t eat; all I wanted to do was sleep.”

If convicted, Kenny faced up to twenty years in prison and a $500,000 fine.

The two FBI agents had not believed a word of what Kenny had said in his living room. The agents had sat together on the couch where he’d been napping, and Kenny had begun the meeting by asking his guests if they wanted a cup of coffee.

No thanks, the agents had replied in unison.

Okay, what can I help you with?

Michael Cox.

What do you need?

Kenny, without hesitation, told them everything he knew—which wasn’t much when it came to Mike Cox. The agents took notes, and later, in her three-page FBI report, Agent McAllister wrote up Kenny’s account of arriving at Woodruff Way and chasing Smut Brown over the fence and into the woods. It was basically a rewrite of Kenny’s original statement to Internal Affairs in March 1995 and of his interview with Jim Hussey. Nothing had changed. “He never observed any other individual on the fence or in that vicinity,” the FBI agent had written. “Conley stated that he has no knowledge of who is responsible for Cox’s injuries nor did he witness anyone assaulting him.”

Within days of the interview, McAllister had called Kenny to tell him she was about to file her report with Ted Merritt. Was there anything he wanted to recant?

Recant? Kenny said. No, I have nothing to recant. Why?

The agent said, “I just think maybe you saw something you’re not telling me.”

“Which part is that?”

The agent said the part about not seeing anyone at the fence.

Kenny was confused. He’d been open and direct with the agents; he hadn’t littered his answers with “I don’t recall” or thrown up a fog of misdirection by saying, “Oh yeah, I did see people there, but nothing specific because it was all a blur.” That wouldn’t have been the truth, and it wasn’t in him to be “cute,” the way so many others had to avoid either further scrutiny or naming names. “I said what I said because I didn’t see Michael Cox get assaulted. I didn’t see him running after the suspect.”

The agent asked one last time: Did he want to change anything?

“Ma’am, I don’t wish to recant any part of my statement.”

Ted Merritt seized on the agent’s report as a gift. “He obviously didn’t tell the truth when he was asked to,” Merritt said later. Kenny even seemed to be mocking the federal investigators, expecting them to accept a statement they considered preposterous. In short order, Kenny Conley became the cop Merritt would target and convert into a cooperating witness against chief suspects Burgio, Williams, and Daley. Forget about Richie Walker or possibly Ian Daley—they were old news, so to speak, and the racial politics were far from ideal. Both were black, and how would it look for federal prosecutors to be squeezing black cops in the beating of another black cop? Forget other members of Mike’s gang unit, such as Gary Ryan or Joe Teahan, given their association with Mike and the fact that their accounts, however conflicting, were so complicated.

Instead, Kenny emerged from the margins of the case to take center stage. He was a cleaner hit: the muscular white cop from “Southie,” built like a brick, standing in the way of justice in the beating of a black cop. Right out of central casting for a prosecutorial drama set in Boston. Choosing Kenny meant that Merritt could exploit the neighborhood’s image as the bigoted enclave violently opposed to busing to desegregate the city’s schools. He could demonize “Southie loyalty” to explain why a cop like Kenny Conley would stonewall the feds to protect fellow officers. Look at Jimmy Burgio; he’s from Southie too. Dave Williams? He and Conley were in the same class at the police academy. To Merritt, Kenny was the standard-bearer for the blue wall and its destructive and misguided basic principle: Never squeal on your own.

Merritt moved quickly following the FBI interview to get Kenny before the federal grand jury. The subpoena ordered him to appear May 29. Merritt called ahead of time to say he’d arranged to immunize Kenny with a court order saying Kenny would not be prosecuted for any information and statements he provided the grand jury. In theory, the grant of immunity was an investigatory tool to compel truthful testimony from witnesses reluctant to testify, often because of their own criminal liability. With this legal shield, the witness was free to testify honestly without fear of being charged afterward. The only exception was lying: Witnesses who lied faced perjury charges.

Kenny was planning to appear voluntarily before the grand jury. He didn’t want any deals. No taking the Fifth. No grant of immunity. He thought witnesses who were immunized before testifying had something to hide; he wasn’t like that. But no lawyer in his right mind allows a client to go before a criminal grand jury without immunity once it’s been offered; it would be tantamount to legal malpractice. When he appeared on May 29 to testify, Kenny went along with the government’s offer and was immunized.

Merritt had set a perjury trap. Kenny could either tell the grand jury the story Merritt believed Kenny was hiding—an eyewitness account of the Cox beating—or, if he insisted on sticking to that outlandish tale about not seeing Mike, then Merritt would see that Kenny was indicted for perjury. Merritt, of course, was hoping Kenny would fold right away. Then, riding Kenny’s new testimony, Merritt could go after Mike’s assailants. But if Kenny didn’t, Merritt hoped he’d come around once criminal charges were filed. If not then, Merritt hoped he’d get it when the reality of going on trial hit him. Merritt would contact him periodically to let him know the case would vanish if he changed his tune. The prosecutor was a patient man; he’d keep up the pressure and wait Kenny out. Not one to second-guess himself, Merritt never wondered: What if I’m wrong about Kenny Conley?

Kenny felt like beating his head against the wall. “They thought with the immunity I was going to say to myself, Okay, I’m in the clear now. They thought I was going to go in there and tell them I saw Jimmy Burgio do this, I saw David Williams do that.” But Kenny couldn’t do that. Indeed, questioned by Merritt and now under oath before the grand jury, he once again described Smut Brown running from the Lexus.

“You saw him go up the fence and get down on the other side?”

“Yes,” Kenny said.

“And where did you make these observations from?”

“As I was running towards him.”

Merritt then loaded up and asked Kenny a set of rapid-fire questions about Mike Cox: Did you see “another individual” running after Smut Brown? Did you see “anyone else in plainclothes” right behind Brown? Did you see an officer in plainclothes at the fence “standing there, trying to grab” Brown as the suspect scrambled over the fence?

To every question, Kenny said: “No, I did not.” Openly and politely, he answered everything Merritt threw at him—to a fault. Merritt, finishing up, masterfully baited Kenny with a hypothetical question incorporating information he was gathering from others about the events at the fence: “If these other things that I’ve been describing, a second—another plainclothes officer chasing him and actually grabbing him as he went to the top of the fence, you would have seen that if it happened?”

Kenny, without hesitation, said, “I think I would have seen that.”

It was the kind of exchange that makes any prosecutor’s list of greatest moments. A more sophisticated witness would know to avoid this sort of hypothetical question that was like a bed of leaves concealing a steel trap. But Kenny was being Kenny—ever-helpful, straightforward, and even naive. Yeah, if Mike Cox was hard on Brown’s heels and grabbing at Brown at the fence,
I think I would have seen that.

Kenny hadn’t seen Mike, but Merritt, in that quick repartee, had finessed it so that Kenny had concurred with the very argument Merritt was planning to use to prosecute him: Kenny Conley himself says he would have seen Mike Cox if Cox and Brown were at the fence together; ergo, dear jury, the fact that Conley denies seeing Cox means Conley is lying! Case closed.

Next to losing his mother, the federal indictment on perjury charges was the worst day in Kenny’s life. He was immediately suspended without pay from the force. The department seized his badge and gun. But while he tumbled into an emotional free-fall, his two sisters and close friends rallied the only way they knew how.

The tickets—about the size of a business card—began selling early in November. Poster-sized versions appeared in storefronts around the neighborhood, one-by-two-foot slabs of cardboard announcing, “A Time for a Friend.” The party was scheduled for Friday night, November 28, nearly three years to the day from the death of Kenny’s mother. The ticket promised a “DJ” and “Raffles” and requested a donation. Kenny first learned about the fund-raiser when he spotted a poster in Java House, the shop on East Broadway around the corner from his family’s house on H Street, where most mornings he grabbed a light coffee. Then, as the end of November approached, a flier circulated in his old district station, where Kenny was now officially persona non grata. “Let’s Go Folks!” the flier began. “Ken Conley Time.” The date was included, along with the names of the contact persons: “McDonald, Mags or Hopkins.” Danny McDonald had been Kenny’s partner, except for the night he rode with Bobby Dwan. Billy Malaguti was a veteran cop and union representative. Tommy Hopkins was one of Kenny’s pals.

Kenny had specifically told his twin sister, Kris; his sister Cheryl and her husband, John; as well as his boyhood pal and fellow cop Mike Doyle, that he did not want a party. He didn’t want to be the center of attention; he was ashamed about the fix he was in and just wanted to hide. But that was like asking them to deny their roots. Holding a “time” for a friend was the Southie way; it was in their DNA.

The night after Thanksgiving, a clear, cold night with temperatures below freezing, hundreds of Kenny’s family and friends poured into the hall rented for the occasion. The Florian Hall in Dorchester was a Boston fixture, a single-story brick building famous for blue-collar parties of all kind—family, political, and work-related. It was visible from the southbound lane of Interstate 93 running through the city. Highway drivers that night not only caught a glimpse of a sea of parked cars, including police cruisers, and partygoers streaming through the double front doors under the hall’s own red-neon sign, they also saw Kenny’s name flashing on the digital billboard erected alongside the highway at the headquarters of Local 103 of the International Brotherhood of Electrical Workers.

Besides friends, plenty of off-duty cops were in attendance. Bobby Dwan, for one, was there. So too were a few sergeants who were Kenny’s patrol supervisors. Cops who knew Kenny and, like Bobby Dwan, knew Kenny was a straight-shooter. But Kenny also realized there were cops showing up, cops he didn’t know very well, who assumed he
was
lying about Woodruff Way to protect fellow officers. Kenny got that feeling when some came over to offer a thank-you with a knowing wink and a nod. But, said Kenny, they were wrong to think that about his grand jury testimony. “I was telling the truth. I was not going to risk my career and family. I was just getting started with Jen.”

It led to awkward moments. Kenny was standing in the hall drinking a beer, talking with friends, when a hand came up and over his back from the crowd behind him. Kenny grabbed the hand. “I didn’t know who the hell I was shaking hands with,” he said. He turned to look and froze. “It was him.” Jimmy Burgio was pumping his hand. Kenny walked away, “pissed off, I would say.” And Burgio wasn’t the only unwelcome guest. Dave Williams showed up, but as soon as word got around among Kenny’s friends, he was asked to leave. The cold shoulder was hardly the stuff of a one-for-all-and-all-for-one.

Kenny would go back and forth in the months afterward on whether the party was a lousy idea. Celebrating a cop accused of perjury and obstruction of justice certainly looked bad. But he could not fault what was at its core—family support. “Maybe it was bad timing, but it was out of the kindness of these people, getting together. No one was thinking about the politics of it.” Kenny couldn’t worry about appearances. Besides, the party did serve its purpose. It buoyed his spirits, knowing his family and his many friends from the old neighborhood believed him, even if federal prosecutors, the FBI, and the Boston police brass did not. And over time, the grassroots support for Kenny continued to spread. Stickers appeared on car bumpers, and signs were propped in the windows of homes around Southie: “Justice for Kenny Conley.”