The Fence: A Police Cover-Up Along Boston's Racial Divide (26 page)

Kenny drove to Southie and headed to the basement bedroom he’d built in the house on H Street when he moved back during the summer to save up some money. He needed to get some sleep. The way the interview had gone nagged at him. “I felt at that point I was being blamed for something I had nothing to do with,” he said later.

The follow-up interview with Kenny Conley marked the end of the line for Jim Hussey’s Internal Affairs inquiry. Ralph C. Martin II, the district attorney for Suffolk County—and the first black district attorney in Massachusetts history—was taking over the case. The switch signaled more than the district attorney’s interest in the beating. It indicated Police Commissioner Paul Evans and his command staff were coming around to the gravity of the beating allegations—what one high-ranking police official began calling “among the most serious investigated by the department.” The stakes were much higher than in an Internal Affairs inquiry where administrative sanctions ranged from reprimand to termination. With a criminal probe, officers faced possible jail time. But while the change of course suggested a tougher stance, it also represented the loss of even more time—a recurring theme ever since the night of the beating. Launching a criminal investigation basically meant starting over. Martin’s prosecutors and officers from the police department’s Anti-Corruption Unit would not have the benefit of Jim Hussey’s work. They would never read about Dave Williams getting caught in a lie during Williams’s interview with Hussey and Cruz. They would never read what Ian Daley said, or Richie Walker, Joe Teahan, Gary Ryan, Craig Jones, Kenny Conley, and Bobby Dwan—or Mike Cox for that matter. Being part of an administrative inquiry, evidence developed by Internal Affairs could not, for constitutional reasons, be turned over to a criminal investigation. The new investigators got written reports about the high-speed chase and dead end, but not the tapes of interviews conducted by Internal Affairs.

But if any prosecutor was up for the challenge, it was Ralph Martin. He was a young, energetic assistant United States attorney in his early forties when first appointed to become the local district attorney by the Republican governor William Weld in 1992. Then, in the 1994 fall elections, he won voters’ support to a four-year term. The outcome surprised many; Martin campaigned as a Republican in a county, comprising the cities of Boston, Chelsea, Revere, and Winthrop, where Democrats outnumbered Republicans six to one. For Martin, the combination of race and justice had long been a powerful source of motivation. Originally from New York City, he was the son of a police officer. His mother was found beaten to death when he was two years old. Martin had gone to college at Brandeis University outside Boston and then moved into the city to study law at Northeastern University. He would always remember how he’d been influenced by a black assistant district attorney from Boston when he was a college senior wondering what to do with himself. The man urged a career in criminal justice because “it’s important to have black folks who are principled in law enforcement.”

Martin, in his brief professional life, had already displayed a willingness to go after cops suspected of wrongdoing—even if the efforts blew up in his face. Before becoming the district attorney, Martin was the federal prosecutor assigned to investigate the Boston police mishandling of the most notorious murder case in decades—the 1989 killings of pregnant Carol Stuart and her baby, shot at a traffic intersection in Roxbury after leaving birthing class. The stomach-turning case that made national headlines became more grotesque when it turned out Carol’s husband, Charles, was the killer. Boston police, meanwhile, had spent weeks building a misguided case against a black man. When the shocking truth came out, the city, especially the black neighborhoods, was in an uproar, and the U.S. attorney put Martin in charge of looking into claims police framed their suspect and strong-armed blacks to incriminate him. Following his investigation, Martin recommended that “several Boston police officers should be indicted on charges of intimidating witnesses, planting evidence and violating the civil rights” of the suspect. Many officers were incensed. But their anger at Martin turned into triumph when Martin’s boss, judging he could not win convictions before a jury, rejected the recommendation and decided not to prosecute the police.

It was a public rebuke, a setback fueling tension between Martin and Boston police officers that carried over into his tenure as the Suffolk County district attorney. “Conflict with the police has been a major theme in the career of Ralph Martin,” noted a
Boston Globe
profile. His pro-active role in the Stuart probe “guaranteed he would get a hostile reception from many police officers when he became DA.”

Now in early 1995, while monitoring the Cox beating investigation, Martin became embroiled in another police mess. He had indicted a veteran officer with forcing a prostitute to have sex while working a paid detail in downtown Boston. But the case barely got past “go.” On February 27, a Superior Court judge not only threw out the rape charge, he went after Martin, characterizing the district attorney in his five-page order as an out-of-control cop hunter. The judge said Martin had manipulated the grand jury process to indict the officer, tactics he decried as a “perversion of our entire system of justice.” The accused cop’s attorney also had little good to say about the Suffolk County district attorney. “Martin has treated police officers unfairly,” he said.

Martin considered appealing the judge’s order, but three weeks later, on March 22, he decided “
no mas
”—he would not do that. He remained unapologetic, however. “Who guards the guards?” he asked rhetorically. The only cops he didn’t like, he said another time, were the ones who broke the law. “People in law enforcement—not just cops—should be held to a higher standard of honesty and integrity, in order for the public to have confidence in us.” Martin said dropping the rape case should not be taken as a sign he’d lost the will to tackle police misconduct. “I don’t think I have ever been shy or reluctant to investigate police misconduct when it appears,” he told reporters.

It was the end of April when Jim Hussey got the order to suspend the Internal Affairs investigation and make way for Martin’s criminal inquiry. Hussey walked away from the case believing he and his colleagues had made some progress, zeroing in on Jimmy Burgio, Dave Williams, and Ian Daley as the “pool of suspects.” But the leads were circumstantial. There was much more to do. The IA’s focus had been narrow: on the first to arrive at the dead end. Fifteen officers were interviewed, when another forty-five were known to have some connection to the chase. IA had not tried interviewing civilians living on Woodruff Way, and it had not interviewed officers from other police agencies who showed up at the scene. It had not tried interviewing the foursome in the gold Lexus who, quite possibly, had seen everything: Smut, Tiny, Marquis, and Boogie-Down.

Smut Brown and the others had been behind bars ever since their arrest, charged with first-degree murder. During the several months that Internal Affairs looked into the beating, Smut met several times with a public defender assigned to represent him. He was held in the Nashua Street jail, a new, $54 million facility built in the shadow of historic and highbrow Beacon Hill and near Massachusetts General Hospital. The public defender found him “very scared, very worried.” The lawyer tried to reassure Smut, “to make sure he understood he’s got help and not to lose hope.” The two mostly went over the shooting at Walaikum’s that started it all, and Smut was freaking out he’d been accused of murder when he’d been as shocked as everyone at the hamburger joint when gunfire broke out. Smut talked about the car chase to Woodruff Way. He said that after scaling the fence he could have outrun the cop “because the cop was thirty yards away when he called out to stop.” He stopped when he could have kept going and escaped in the woods. It was the kind of detail the attorney noted. Fleeing was typically seen as “consciousness of guilt.” But when Smut stopped instead of escaping, that was something the attorney could argue showed consciousness of innocence. Smut stopped because he had nothing to hide.

In these early meetings, Smut also mentioned the beating at the fence. Smut had continued to think Marquis was the one who had taken the blows. While they were being booked later at the Roxbury police station, he had not had a chance to talk to Marquis. The only thing he knew, Marquis was taken to a hospital for treatment. Smut then found out that was all wrong—from rumors, from his mother and Indira during their visits, from Marquis himself when they both were eventually in the same jail. “That was a
cop
!” Smut got to thinking. It seemed surreal. Cops beat another cop like that? This, Smut knew, was heavy. When winter turned to spring and he heard talk about the inability to solve the beating, Smut sat in jail awaiting trial for murder knowing he’d seen plenty at the fence.

“They took affidavits and reports from everyone who was on duty that night but nobody has talked to our clients,” one of the defense attorneys said about the police investigation into Mike Cox’s beating. The murder suspects might know something, the attorney noted, but no police official had reached out to them. “No one has contacted me to say, ‘Would you mind if I talk to [them] about this other incident?’”

Ralph Martin and his immediate circle of advisers weren’t the only ones in the district attorney’s office who’d taken notice of the bizarre beating case during February and March. Assistant District Attorney Bob Peabody had read the first newspaper account. Peabody, thirty-nine, worked in Martin’s Special Prosecutions Unit. His bloodlines ran deep in Massachusetts history. He was a descendant of the founder of the Massachusetts Bay Colony and the state’s first Colonial governor—John Endicott. His father, Endicott “Chub” Peabody, was governor in the early 1960s. Peabody, tall and built solidly like his father, played the line on the Harvard College football team. He studied law at Boston College. With about seven years of experience as a prosecutor, Peabody was no longer green but had yet to attain the status of seasoned veteran.

Bob Peabody noticed the story because he knew Mike Cox. More accurately, he knew who Mike Cox was. Peabody’s kids attended the Park School in Brookline with Mike’s two boys. Peabody’s middle son and Nick Cox were in the same elementary school class. He and Mike traded greetings at school events, but little more. When Peabody read about Mike’s injuries, he made a point of going up to Mike the next time he saw him at the boys’ school to ask if he was doing okay. Mike was polite and friendly enough, but it was a brief, awkward exchange, the kind Mike was trying his best to avoid. Soon enough, however, Bob Peabody and Mike Cox would be having more formal exchanges about the beating.

For Boston Red Sox fans, springtime was always about a fresh start, a new season of hope for winning a World Series and ending the miserable drought since the last national championship in 1918. The baseball strike in 1995 that was threatening to shut down the Major League Baseball season had ended on April 2, and three weeks later the fans piled into Fenway Park for the home opener. The worry was that hard-throwing ace Roger Clemens was out of action with a shoulder strain. The good news was the lineup: Slugger Jose Canseco had been added to provide more home run power, while shortstop John Valentin was maturing into an elite player. Down in the minor leagues, a new infielder named Nomar Garciaparra was impressing with his slick fielding and batting stroke. The Sox took the field and clicked on all cylinders: Pitcher Aaron Sele threw a shutout and Sox hitters drove in a slew of runs in a 9–0 win over the Minnesota Twins.

For Sergeant Mike Cox, the opposite was true about the spring: It was a season of despair and hopelessness. “My wife was saying, ‘I told you this wasn’t going to go away. This is terrible what they did to you. Don’t you see it?’” By the time Jim Hussey was shutting down the IA inquiry, Mike had indeed begun to come around.

“I mean nothing’s happening. Nothing’s being resolved.”

With help from Craig Jones, Donald Caisey, and a few other friends, Mike monitored the department’s faltering Internal Affairs inquiry. He picked up bits and pieces. He learned Dave Williams owned up to lying that he and Jimmy Burgio rode in separate cruisers, but he also learned nothing happened to Williams for screwing up the initial effort to establish the layout of cops and cruisers at the dead end. Williams had a knack for eluding trouble. Just as he was becoming embroiled in the unfolding Cox affair, he appeared to be facing hot water on another front. Two civilian complaints against him for excessive force, still pending from the fall, caught up to him. The cases, at long last, had triggered the department’s new Early Intervention System, the program to monitor officers with two or more complaints. It had taken four months—and only after the Cox beating probe began—when Williams was notified to undergo retraining due to a “potential problem area: physical abuse during arrests.” He was ordered to enroll in a course in “Verbal Judo” while the complaints were under investigation. Verbal Judo was a method for using words rather than force to defuse volatile situations. But Williams quickly learned EIS was more sound than fury. The city thought Verbal Judo was not a proven program and wouldn’t pay for it. Williams never took it or any other course. Instead, he focused his verbal skills on denying the excessive force accusations still under investigation, including the one by Valdir Fernandes, the eighteen-year-old who accused Williams of smacking him around for spitting too close to Williams on a porch.

Mike also learned about Ian Daley taking the Fifth. It made him mad that someone he believed definitely had evidence about the beating had gone stone cold. But if Mike was upset, Craig Jones was furious. Craig was convinced Daley was either a beater or a witness to it. “I was pissed,” he said. “I couldn’t believe no one was going to step up.” He was also taken aback that many cops didn’t seem to realize the severity of the beating. “I had people coming up to me saying something like this happened to them. I’d say, Oh, you did? You had blood in your urine?” Craig tried to set them straight. This was not a case of one cop mistakenly spraying another cop with mace or whacking him with a glancing blow, “and the cop immediately apologizes and it’s over.” This was much worse. “It was a crime,” he said. Mike was owed “a lot more than an apology.