The Fence: A Police Cover-Up Along Boston's Racial Divide (30 page)

CHAPTER 13

Cox v. Boston Police Department

B
ob Peabody faced Dave Williams. “Officer, at any time while you were there did you yell out, ‘Stop. He’s a cop!’?”

“Negative.”

“Is that a yes or no?”

“No.”

“You did not yell that out?”

“No, sir.”

“You did not yell it out once or twice?”

“I didn’t yell that out at all, sir.”

“And you’re sure of that?”

“Positive.”

“And that is the truth?”

“Absolutely.”

Peabody asked Williams the question five times. Minutes later, he tried a sixth. “You categorically deny that you uttered the words, ‘Stop. Stop, he’s a cop!’?”

“I never said that, sir.”

The heated exchange came more than an hour into Williams’s appearance before Peabody’s grand jury. It was Friday, the first of December, and seven months into Peabody’s investigation. Just as other witnesses had, Williams first checked in with a court officer stationed in an anteroom to guard the door. Williams then waited for Peabody to come out and get him. He walked into a room that was more an amphitheater than a courtroom, with three ascending rows of chairs where the twenty-three jurors sat. The bank of windows in the rear provided plenty of light, especially in the afternoon when the sun set. Williams took a seat in the flat area. His chair faced Peabody seated at a desk.

The prosecutor was getting nowhere. While he was uncertain whether Williams had actually delivered a blow or two, he was convinced Williams saw it all—“a bird’s eye view,” was how he put it.

Williams pushed back hard. “I have no idea what happened to Mike,” he told the grand jury. “I didn’t see anything of that nature, anyone striking Mike.” Under oath, he elaborated on the skeletal accounts he’d initially given in his written reports. He said he’d bolted from his cruiser and chased the suspect named Jimmy “Marquis” Evans who ran from the Lexus’s front passenger seat. “He was running. I drew my gun, and I told him, ‘Get down. Get down. Get down,’ and he did. And I ran up to him. I just kept him at gun-point.” He said he was in no position to see anything at the fence.

The account of a foot chase didn’t square with the tight geography at the end of the cul-de-sac, but Williams was unflappable as he addressed any inconsistencies. When Peabody pointed out Williams had written in one January 30 report, “both suspects fell down a steep hill,” Williams acknowledged the inaccuracy as a harmless mistake. “I put down ‘steep hill’ but I knew it wasn’t—I couldn’t tell whether the hill was steep or not.”

Williams parried every incriminating remark others had made about him. He acknowledged saying at the hospital that it looked as if cops had beaten Mike, but insisted he was simply thinking out loud, putting words to what everyone in the room was thinking. “We were talking to Mike,” he said. “We realized that something had happened that shouldn’t have, basically.”

Peabody brought up Craig Jones, who had said that Williams fingered his partner, Jimmy Burgio. Peabody had decided Craig’s information had the ring of truth. First, he did not think Craig would ever concoct an incriminating statement against another officer. Moreover, the remark was not the sort of thing Craig or anyone would forget. “I’m asking you,” Peabody said. “Did you ever tell Craig that you thought that your partner hit his partner by accident?”

Williams put his foot down. “No, I did not.”

“Are you sure of that?”

“I’m positive of that.”

“Absolutely sure?”

“I’m sure.”

Williams explained Craig had misheard him. Sure, he’d brought up Burgio’s name with Craig, but only to refute rumors already circulating in the immediate aftermath of the beating. He’d told Craig that Burgio could not have hit Mike because “he was with me.” Burgio, he said, had run after Ronald “Boogie-Down” Tinsley, the other suspect who’d fled from the right side of the Lexus. Williams said he’d seen Burgio get out of the car. “When I turned around, when I had my suspect, he was there.” Williams said Craig had misunderstood and twisted his words all around. He was actually vouching for Burgio.

Finally, Williams exhibited an impressive
inability
to identify any of the other officers at the dead end, despite Peabody’s repeated efforts. He was comfortable discussing cops whose presence was widely acknowledged—Craig Jones, Joe Teahan, and Ian Daley, for example—but was stumped when it came naming any others.

“There were other cops there,” he acknowledged.

“Did you know any of them?” Peabody asked.

“I can’t recall exactly who was there.”

Williams certainly appreciated the benefits of cops sticking together. In October he’d gotten word in one of the two excessive force complaints pending against him—he’d been exonerated. In the Internal Affairs inquiry, every other officer had backed his position that he’d struck the Dorchester woman only after she’d assaulted him. The eleven officers interviewed by IA either said they did not see Williams hit the woman or said that Williams restrained the complainant only after she had hit him. “Officer Williams was met with physical resistance while making a lawful arrest and used the minimum amount of force necessary to subdue Miss June Ivey,” ruled the investigator for Internal Affairs.

By the time he was finished questioning Dave Williams, Peabody was deflated.

“Is there any information, Officer Williams, that you can give this grand jury that would assist them in determining what had happened to Michael Cox that night?”

“Just what I told you,” replied Williams.

It was a command performance by an officer who, in the hours after the beating, had likely said too much and was now explaining it all away to return to the police fold.

While Bob Peabody was pursuing his grand jury probe into the Cox beating during the fall, New York’s new police commissioner—the brash and high-profile Bill Bratton—was holding forth at Harvard Law School. Bratton, the ex–Boston police commissioner who’d once gone on a ride-along with Mike and Craig, had agreed to be the keynote speaker at a forum titled “Police, Lawyers, and the Truth: A Symposium.” Bratton was called on to address the problem of cops lying to make an arrest or while testifying at criminal trials.

The police perjury, nicknamed “testilying,” was believed to be a by-product of the stand-together police culture that was responsible as well for the blue wall of silence. They were, in effect, branches of the same tree. With testilying, cops lied usually to protect a case and ensure a conviction. With the police code of silence, cops lied to protect another cop suspected of wrongdoing. In both, it was all about us versus them.

“You cannot break the law to enforce it,” Bratton began.

Testilying had moved front and center into the national dialogue, a hot public issue for much of the year due to the O. J. Simpson murder trial. Allegations of misconduct and perjury by the Los Angeles police were a centerpiece of Simpson’s defense. With more than 150 million viewers watching the televised verdict, the former football star was acquitted on October 3 after his jury deliberated less than three hours.

In particular, Harvard Law professor Alan Dershowitz, one of Simpson’s lawyers, had been outspoken about testilying, and, indeed, at the Harvard forum he reiterated his combustible claims that cops not only lie routinely but actually teach one another how to do it. Many police and police unions were livid with Dershowitz, and some police chiefs boycotted the Harvard forum because of him.

Bratton, however, had not. Dershowitz and other criminal law experts, he told the audience, “have said police perjury is pervasive. If you asked the police unions, they would say it is minimal. I think the truth probably lies somewhere in the middle.

“This is enough of a problem that we need to address it. We can’t address it by ignoring it, and we can’t address it by boycotting conferences like this one.” The practice, he insisted, was basically well-intentioned. “Testilying is different from any other form of police corruption because it is usually unrelated to any opportunity for personal gain. Cops who testilie do so in the belief that they are helping to enforce the law…As the cops who testilie see it, they don’t lie to convict innocent people, but to convict the guilty.”

Bratton had chosen not to belabor the wholesale corruption behind the lying. But, truth be told, the made-up testimony—purportedly to give justice an edge—could indeed provide cover for the corrupt cop who was bad to the bone. Boston, at that very moment, had two veteran detectives who for more than a decade treated Roxbury and Dorchester as their own money store. Publicly, Walter “Mitty” Robinson and Kenny Acerra were known as street-savvy crime fighters often called on to help solve some of the biggest cases. They had press clippings saying so. The reality was that on the street they were a two-man crime spree. Lying routinely to obtain phony search warrants, lying routinely in court to cover up their actions, they shook down drug dealers for their money, drugs, and guns. Little did Bratton know, but as he spoke at Harvard, the two Boston detectives, having grown sloppy, were about to be caught. Federal investigators documented fifty-six cases where the two had shaken down suspects illegally. They were eventually charged with stealing more than $250,000 in cash, drugs, and guns.

When Bratton was finished, the Boston police union was not at all happy with him. The union’s president angrily told the
Boston Globe
the police commissioner’s views on testilying were “incredible.” The union official, a twenty-seven-year veteran, even denied testilying existed. “I went to court an awful lot and I can never remember any problems of this kind.”

The denial had a hollow ring to it—just like denials of a blue wall of silence.

Bob Peabody ran into a wall with Dave Williams. The unproductive standoff was emblematic of the overall lack of progress in his investigation. In seven months he’d put five Boston police officers and another two municipal police officers before the grand jury for questioning. With Farrahar, he’d interviewed twenty-two police officers and munies in the offices of the Anti-Corruption Unit in Fort Point Channel. He’d worked up a theory of culpability revolving around the big three—Burgio, Williams, and Daley—with Burgio as the principal assailant. In his reconstruction, Burgio exited the passenger side of Williams’s cruiser to find Cox standing right in front of him at the fence. “My theory was he was the first at the fence and brought Cox down.” Peabody found unofficial confirmation in Jimmy Burgio’s choice of defense counsel. Burgio showed up for his interview in July accompanied by Thomas Drechsler, one of the smartest attorneys around, who often represented police officers in trouble. “To me, that confirmed Burgio’s the guy,” Peabody said. “Why else would he have the top attorney?” It was, of course, rank speculation mixed with gallows humor, but Peabody was only half joking.

In truth, Peabody had not made any real headway toward charging anyone. Burgio took the Fifth and refused to answer any questions in July. When Ian Daley showed up for his interview one overcast evening in August, his tape-recorded session lasted all of three minutes. Just long enough for Daley to give his name, rank, police ID number, and refusal to cooperate. “I respectfully decline to answer on the advice of counsel,” he said, citing his constitutional privileges against self-incrimination.

Then Joe Teahan and Gary Ryan invoked their rights against self-incrimination—a move that confused and surprised Peabody. He’d not suspected either in the beating—indeed, they’d attended to Mike—but once they joined Burgio and Daley as the only officers taking the Fifth, he was tantalized and began thinking they had information. “They might have heard something. I wanted to get that.” He sought immunity for both—a court order protecting them from prosecution in exchange for their testimony. But once under oath, Teahan and Ryan had nothing helpful to say; they said they’d arrived after the beating. Peabody was flummoxed. “I thought, ‘What? We went through all this for nothing?’” He realized he should not have immunized Teahan and Ryan without a proffer—a preview of what they had. “That was just also a learning curve for me.”

For all the effort, his investigation had not only failed to advance the case but it actually turned up less than Internal Affairs. Richie Walker, for one, was in full retreat. He’d told Jim Hussey he’d seen another officer running after Mike toward the fence. When Walker met with Farrahar, he described briefly seeing Mike run toward the fence, but made no mention of seeing anyone behind Mike.

With Jim Hussey, Walker had said Mike’s beating was the talk of the Roxbury station house later that night. With Farrahar, Walker flat-out denied anyone later discussed the beating. Walker was asked: “Did you have any conversation with either Officer Daley or Officer Jones or Sergeant Thomas in regards to the injuries that Michael Cox sustained?” “No, sir,” Walker replied. “I just asked how is he doing.” Peabody, unable to study any of the IA records, had no way of knowing about Walker’s about-face. Walker was like so many of the other witnesses he’d questioned; he saw nothing.

The grand jury also never heard from Bobby Dwan. Dwan told Hussey he’d seen two uniformed Boston cops, one white and one black, in a commotion by the fence. He said when he arrived he’d seen both Teahan and Ryan moving about the dead end. But Peabody and his investigators never interviewed Bobby or Kenny Conley. Both would have cooperated had they been summoned, but the summons never came. For his part, Kenny had put the contentious end to his last session with Hussey behind him. He wasn’t the sort who brooded. He’d resumed his life’s routines—his night shifts in the South End, his basketball playing. Kenny certainly heard the same rumors everyone was hearing—about Burgio and the others—but he wasn’t paying much attention. It didn’t involve him. “I pretty much forgot about it.”

Somehow, Kenny and Bobby had fallen through the investigation’s crack; Peabody did not realize Kenny and Bobby were at the dead end. He was not allowed access to their interviews with Internal Affairs, and he also apparently never received their written reports. “We somehow didn’t get our hands on that,” Peabody said later. The presence of Kenny and Bobby at Woodruff Way, Peabody said, “never came up.”