The Fence: A Police Cover-Up Along Boston's Racial Divide (46 page)

The blue wall notwithstanding, the federal probe had faltered in a huge rut of its own making—the misguided squeeze play and perjury conviction of Kenny Conley. Merritt had banked the investigation on Kenny—a miscalculation from which the effort to solve Mike’s beating never recovered. Stern, however, would have none of it; he stood by his prosecutor and always defended the controversial conviction of Kenny Conley.

Indeed, Ted Merritt was in for some high praise. The very next year, he was one of three federal prosecutors in the Boston office to receive the U.S. Department of Justice’s coveted Director’s Award for “superior performance” in a high-profile case.

Over at the Boston Police Department, a seemingly wayward cleanup involving key officers in the Cox affair continued. By the end of 1999, Jimmy Burgio, Dave Williams, and Ian Daley were kicked off the force. They were dismissed for a variety of departmental violations—Burgio and Williams for the use of excessive force and for the cover-up of the beating, and Daley for failing to stop the beating and for lying.

The trio vowed to fight and filed labor grievances. Attorney Tom Hoopes, calling Ian Daley’s firing a disgrace, insisted his client was a scapegoat. But in a ruling that followed twenty-five days of testimony stretched out over two years, the labor arbitrator concluded otherwise; Ian Daley was a liar, and his termination had been for just cause.

Jimmy Burgio fared no better. Testifying for the first time in any proceeding, he said he’d jumped out of the passenger side of his cruiser, run around the front of the car, and pounced on Ron “Boogie-Down” Tinsley. He said he pointed his gun at the back of Tinsley’s head. “I told him if he moved, ‘I’ll send you to your maker.’” Burgio said he never took his eyes off the suspect, and the two remained frozen until more help came.

His arbitrator did not buy the do-no-evil account, calling Burgio’s story, replete with the Hollywood line about sending Boogie-Down to his maker, “implausible” and “demonstrably false,” and ruled “substantiated misconduct” warranted his firing.

Burgio went to work as a pipe fitter and moonlighted as a bouncer. Nancy Whiskey’s was long closed down, so he took a job working the door at another infamous Southie bar that for decades was controlled by crime boss Whitey Bulger. Back then the bar was Triple O’s and nicknamed the “Bucket of Blood” for all the underworld shakedowns and much worse that went on in the back rooms. Following the bust-up of the Bulger gang in the late 1990s, and by the time Jimmy Burgio became regularly employed there, the pub had been renamed the 6 House.

Burgio tried marriage a second time in September 2004, but two years later the marriage was over. He missed being a cop. Burgio did not budge when asked about Woodruff Way: He did not know who beat Mike Cox, but if he had to guess, he said Ian Daley probably had something to do with it, and, of course, as his lawyer always argued, “the munies.”

Lastly there was Dave Williams; he appeared before a labor arbitrator who might as well have said, Dave, this is your lucky day. The arbitrator overturned Williams’s firing. He ruled Williams deserved only a one-week suspension for filing the false report about him and Burgio being in two cruisers. He said Williams’s testimony about chasing Jimmy “Marquis” Evans and knowing nothing about the beating was believable. The arbitrator discounted Mike Cox’s testimony as unreliable, dismissed Smut Brown’s account entirely, and ignored the jury’s verdict in Mike’s civil rights trial.

Williams was on the comeback—reinstated and paid an estimated $300,000 in back pay. He went through a refresher course at the police academy in the fall of 2005 and was on the street by early 2006, working as a patrol officer in downtown Boston.

It was a reversal of fortune many familiar with the Cox case found shocking. “A jury of twelve good citizens made a fair decision,” said Rob Sinsheimer. “I find it appalling to the point of shocking the conscience that this could be effectively overturned by a single arbitrator. Every citizen who cares about policing and the courts should be outraged.”

Smut Brown stood at the gas pump at the Mobil station in Mattapan Square one spring day after the trial when Mike Cox pulled up to another pump to fill up. During their chance encounter, the two found they shared a common ground: Both had long felt harassed by ghosts from the Boston Police Department.

“He told me about getting phone calls in the middle of the night,” Smut said later. For his part, Smut complained to Mike that he felt the cops were trying to hunt him down for cooperating. Mike had some counsel for Smut. “I told him that if what he says is true about being targeted, it might be best for him and his family to leave town.”

Smut should have heeded Mike’s advice, but for reasons that did not involve Boston police. He and eight others in the KOZ gang were indicted in late 1999 on federal drug and conspiracy charges. Smut had been caught twice selling crack cocaine to an undercover agent.

Smut was off the street—for good now, caught up in the nation’s draconian mandatory drug sentencing laws. His attorney, Bob Sheketoff, sought out Ted Merritt, hoping to get some leniency for Smut’s cooperation, but none was forthcoming. Smut eventually pleaded guilty to one drug sale, and he was in Portland, Maine, in 2003 finishing a seventy-month sentence when he foolishly got caught up in a $300 coke deal. Smut was living at a halfway house and working at a Portland hotel. Instead of heading home to Indira and a third child, a daughter named Destiny, conceived during a conjugal visit and born on May 7, 2004, Smut was sentenced to do another twenty-one years in prison based on sentencing formulas that factored in his multiple prior convictions.

Smut did his best to adjust to prison life. He participated in a Bible study program, took classes in computers and writing, worked out regularly, and became known on the basketball court for his three-point shot. “It’s Smiggity for three!” he’d yell after releasing the ball on a long arc to the hoop. In the Portland County jail he became an inmate “trustee” and was known among the guards for his calming presence. A number of the corrections officers wrote on his behalf prior to his final sentencing, including one who credited Smut with saving him from a beating by another inmate. “Mr. Brown saw what was taking place and placed himself in harm’s way by assisting me in dealing with the aggressive inmate until my backup arrive,” the guard wrote. “I have repeatedly thanked Mr. Brown for his help that day only for him to humbly say, ‘I just did what was right.’”

In quiet moments, Smut took to composing dozens and dozens of rap songs, which he’d send home to his mother, Mattie, or to Indira for safekeeping. He dreamed of someday becoming a songwriter. One song he wrote included a verse about his misbegotten role as a witness for Ted Merritt in the conviction of Kenny Conley.

Ted Merritt hope you hear it, here’s the lyrics:

I can’t bear it, tell the public I never lied

And told you that Ken Conley was the white guy.

I’m the star witness Feds want a fast conviction

Exploited my words had an innocent cop sentenced.

So now I’m finished, every cop hatin’ my guts

Now my days are dim, I’m condemned for being Smut.

The year after the trial, Willie Davis told Kenny Conley just before Labor Day to get ready to report to prison. So Kenny and Jen got married that weekend. “It was a forty-eight-hour wedding,” Jen said. They rounded up about fifty of their friends and family. Jen’s brother flew in on short notice from Chicago. Her aunt drove up from Connecticut. Friends chipped in to put the newlyweds up at a new hotel along the South Boston waterfront, where they spent what Jen later called a “Boston long weekend honeymoon.”

The next week, Willie Davis managed to win a stay of Kenny’s sentence in order to continue Kenny’s legal appeals—a pursuit that turned Herculean. Kenny’s circle of supporters expanded to include Boston city councilors and Massachusetts congressmen Joe Moakley and Bill Delahunt. Delahunt called on Bob Bennett, the powerful Washington, D.C., attorney, who represented President Bill Clinton during his sex scandals, for help. Bennett agreed to take over Kenny’s appeal on a pro bono basis.

Kenny’s case worked its way back and forth between federal court in Boston and the First Circuit Court of Appeals. Ted Merritt and U.S. attorney Donald Stern fought him at every turn. But then in the fall of 2001, Bob Bennett thought he’d achieved a breakthrough. Negotiating with the new U.S. attorney in Boston, appointed by the newly elected President George W. Bush, he’d come up with a deal whereby Kenny would plead nolo contendere, or no contest. Kenny’s conviction would stand, but, in return, prosecutors would ask the court to change his sentence to probation: no prison time. Bennett saw it as the kind of “win” he’d worked out in the past for a high-powered clientele of public figures and corporate titans caught up in criminal legal woes that included hard time.

Kenny right away said, No way. The lawyers urged Kenny to sleep on it, talk to Jen. But Ken had the same answer the next morning: No way. “I can’t do a no contest,” he said. “In my eyes this is a guilty plea, and I wasn’t guilty.” Taking the deal would also mean he could never return to the police force, “and that’s the thing I wanted.”

They kept up the fight in court. By now, a centerpiece of the appeal was a document they could thank Bobby Dwan for. During his own legal wrangling after he was put on administrative leave, Bobby devoured documents his attorney secured from the department as part of the discovery process. He came across one that seemed weird—the FBI agent’s report about Richie Walker wanting to be hypnotized to better recall Woodruff Way. Bobby realized this had never come out at Kenny’s trial and, after he notified Kenny, his attorneys were enraged they’d never seen the FBI memo before.

The lawyers took over from there. The FBI report on Walker, they argued, should have been disclosed prior to Kenny’s trial for impeachment purposes. While Bennett raised other issues on appeal, it was the FBI memo that ultimately proved to be the smoking gun needed to finally turn Kenny’s conviction on its head. “For me, the sockdolager is the FBI memorandum,” wrote the federal judge, employing a fancy word meaning “conclusive blow.” The jurist presiding over the appeal happened to be Judge Young, and, on August 14, 2004, Young decided that Kenny had been wrongfully convicted by federal prosecutor Ted Merritt. “Because the government has withheld crucial information, Kenneth M. Conley did not receive a fair trial,” he ruled.

When the court of appeals upheld Young’s decision the next July, and the U.S. attorney decided to drop the case, Kenny Conley was at last free and clear. When he showed up for the midnight shift on October 4, 2005, at his old station in the South End, the usually perfunctory roll call just before midnight erupted into a welcome back celebration, where Kenny was presented his old badge—number 1016—as a keepsake.

He was thirty-six now, happy to be back in the only job he’d ever wanted. “Knowing me, I’ll be a cop until I’m sixty-five.” He was promoted to detective in 2007. In a recent interview, he said that while working the streets had changed—more guns and shootings—nothing much had changed about the police force. His colleagues still had the tendency to mess around with the truth regarding an arrest: Too many cops add things to their reports to make their case seem stronger—the very problem people like Bill Bratton called testilying.

“You can’t add things,” Kenny said one day over coffee. He’d been through a lot because of other cops’ lies and truth tailoring. “You either have it or you don’t.”

“My name is Michael Cox, and I work for the Boston Police Department.” Mike spoke those words on December 9, 2000, two years to the day since he’d testified in
Cox et al. v. City of Boston et al.

But instead of U.S. District Court in Boston, Mike was bearing witness at Harvard Law School. He was one of six panelists addressing the “Impact of Brutality on Victims and Family,” part of a daylong symposium entitled “Race, Police and Community.” Mike sat in front of the crowded hall dressed in a navy blue blazer, a dark blue shirt, and matching blue tie—a getup that looked like a civilian version of police blue.

He was an oddity—the only cop on the panel; a cop who, strangely enough, was also a victim of police brutality. The other panelists—a Latino woman whose son was killed by police, an activist attorney who’d been involved in countless police misconduct cases—did not hesitate to condemn police while sharing their experiences with police brutality. Seated to Mike’s right was the marquee speaker: Abner Louima. The Haitian immigrant had been traveling the country, often in the company of the Reverend Al Sharpton and attorney Johnnie Cochran, talking about his brutal assault and sodomy by New York police officers. “Police brutality happens every day,” Louima said. “Unless we all sit down and find a solution, it is going to happen again and again.”

Mike followed Louima. He’d sat there stiffly, looking straight ahead, rarely turning sideways to look at Louima or any of the other speakers. “It’s tough for me to be here right now and talk about this kind of stuff,” he told the audience. “For two reasons: One, it’s personal to me, and two, I’m still a police officer.” He began by describing generally what happened at Woodruff Way. When the moderator interrupted to ask for specifics, Mike refused. “I think I feel comfortable with just saying [I was] brutalized.”

His remarks lasted less than eight minutes. The point he wanted to make, he said, was that the problem of police brutality and the failure to confront it was rooted in “the police culture, and the lack of addressing the police culture by most organizations.

“The culture is just so strong,” he said. “Police don’t even like to talk about brutality, and ending and stopping it and doing something about it. Many of them don’t participate in brutality but they don’t realize they are participating by not saying anything.”