The Fence: A Police Cover-Up Along Boston's Racial Divide (34 page)

To help out the U.S. attorney’s office, Peabody typed up a four-page, single-spaced memo, “Status of Cox Investigation.” It was a confidential summary of the failed grand jury investigation. “This investigation is stalled,” he wrote. He covered Mike’s beating and then described what he’d done to try to solve it, including his confrontation with Dave Williams and the unsuccessful negotiations with Tom Hoopes about Ian Daley. “We have questioned (sometimes twice) every person present that night; persons who would have any information about the Cox beating.” Peabody didn’t realize it at the time, of course, but he was wrong about having gotten to everyone. He had missed that cops from the South End station were also there, namely Kenny Conley and Bobby Dwan.

The Cox case would soon become the worry of federal prosecutors, but Peabody seemed reluctant to let go completely. He recommended the DA’s case be kept in an “active” status just in case one of the police officers testifying before the grand jury would “change his mind whether because of what’s happening internally at BPD or for reasons of conscience.”

The notion of a cop doing an about-face as a matter of conscience seemed fantastical, given his experience with the police department. Peabody then had a thought that seemed to hold out greater promise. It involved the four men in the Lexus: Smut Brown, brothers Tiny and Marquis Evans, and Boogie-Down Tinsley. Throughout his Cox investigation, Peabody had purposefully stayed away from them, not wanting to risk in any way the integrity of a murder case. But the four were all headed for trial in late October for the murder of Lyle Jackson. The trial, observed Peabody, depending on its outcome, “may shake one or two of the lesser culpable defendants into our camp.”

Wouldn’t that be a twist—cooperation not from the cops but from the criminals?

“Hearsay,” he continued, “says that the rear left passenger saw the whole thing and can ID more than one white cop beating Cox.”

Peabody was talking about Smut Brown.

The four were being prosecuted by the DA’s office on the theory the murder was the result of a joint venture, a legal term describing a situation in which one person is held responsible for another’s crime if evidence proves they worked in concert and shared the same mental state. Smut Brown, even though he did not pull the trigger, could be proven guilty of murder if the prosecutor could show that Smut and the other three, as a team, killed Lyle.

Smut was represented by a court-appointed attorney named Robert L. Sheketoff. Sheketoff, forty-seven, had come of age in the late sixties, attending an almost all-black high school in Hartford, Connecticut, and then Brandeis University near Boston, where he majored in politics. For the two decades following his graduation from Yale Law School in 1975, the curly-haired, bespectacled, and bookish-looking trial practitioner had represented all varieties of the accused, from small-time drug dealers like Smut to the underboss of the Boston Mafia, Gennaro J. Angiulo. He’d done so without fanfare; while many lawyers regularly sought media attention, Sheketoff couldn’t be bothered. Despite his low profile, he was the legal profession’s inside secret, a brilliant workhorse determined to hold the government to the test during a criminal trial, admired by other defense attorneys, prosecutors, and judges alike for his laser-like skill to instantly assess a witness’s testimony for holes and inconsistencies.

“Trials are like plays—ad-lib plays,” Sheketoff once said, “and you absolutely have to listen to every word. The most important thing you can do is listen to the witness.”

It didn’t always happen with clients, but Sheketoff had grown fond of Robert “Smut” Brown. He didn’t think Smut came close to being a cold-blooded street criminal capable of killing. He’d seen plenty of those types in his career. He saw instead a charmer, with a spark in his eye, who grew up in tough surroundings and had made plenty of bad and stupid choices. He loved his kids. Drug dealer? Yes. Killer? No.

“He had a very good side to him,” Sheketoff said.

With Smut, Sheketoff’s goal was to show the jury Smut had nothing to do with the fatal shooting; that Smut was as surprised by the outburst of gunfire as the patrons fleeing Walaikum’s; that the killing was sudden and not premeditated; and, finally, that Smut was outside when all hell broke loose. In sum, Smut did not share the mental state required for a joint venture and was not guilty in the tragic slaying of Lyle Jackson.

While preparing for trial, Sheketoff sometimes found it hard to focus solely on the murder. The reason was the Cox beating. It may have been ancillary, but the beating was like a giant elephant in the room. He thought he’d seen it all. “Maybe this is too cynical, but I don’t think there’s anything particularly unusual about police beating up suspects, you know, going overboard.” But Cox was different. “What’s hard to comprehend,” he said, “is when it turns out it was a police officer who was almost killed, but the police solidarity is such that no matter how old, how young, male, female, black, white, the police officers—they all keep quiet about what happened. That’s scary.”

Smut added to Sheketoff’s curiosity about the beating. From the time of his arrest, Smut told his public defender and then Sheketoff about witnessing the cop pile-on. “Long before the trial, I knew from Robert that he had seen the beating.”

The murder trial began on October 28, an overcast, 60-degree day, with the jury taking a bus ride to see the crime scene at Walaikum’s and travel the more than ten miles of the chase through Roxbury into Mattapan, and ending at the dead end of Woodruff Way. The restaurant was so cramped jurors were taken inside in three groups of five, five, and six. Throughout, the prosecutor served as tour guide, pointing out relevant sites—the locations, for example, where the men tossed the guns out of the Lexus during the car chase. When they reached the dead end, he urged jurors to study the layout. Looking around, Sheketoff, for one, was brought up short. “Wow, this is pretty small,” he said. He found himself wondering again about Mike Cox. “I couldn’t imagine how a couple dozen cops were there, and no one saw what happened?” He didn’t buy it.

The next day Lyle’s mother, Mama Janet, took the witness stand—the first of twenty-six witnesses who testified during the eleven-day trial. It was a good call by the DA to start with her. She vividly brought back to life for the jury the murder victim, her twenty-two-year-old son, the father of a five-year-old-boy, working at a department store and trying his best to make his way in the world. She described how she got a telephone call in the middle of the night and ran around the corner to Walaikum’s, where Lyle, riddled with bullets, was being loaded into an ambulance. Her son died six days later.

While the prosecutor was trying all four men as participating in a joint venture, he still had to settle on two as the actual shooters. From the witnesses police had assembled, he concluded the gunmen were Tiny and Marquis Evans. The proof came mostly from the one witness the DA’s office determined was most reliable—a twenty-eight-year-old Jamaican named Alton Clarke. Clarke had been a constable in Jamaica prior to moving to Boston. Clarke had told police he saw two gunmen run from the restaurant and climb into the Lexus. He said they climbed into the car’s front seats. The two shooters, therefore, were the driver and front-seat passenger—and that meant brothers Tiny and Marquis.

Smut was surely helped by Clarke’s testimony; for starters, Clarke got it right and wasn’t calling Smut one of the two shooters. But it got even better. Clarke went on to say that when the two gunmen jumped into the Lexus, he saw the other two men—namely Smut and Boogie-Down—were already in the backseats.

Sheketoff was delighted. In fact, Sheketoff learned prior to trial that the government had only one witness to argue Smut was part of a murderous joint venture, a friend of Lyle’s who claimed Smut pointed out Lyle Jackson seconds before the shooting started.

Marcello Holliday began by telling the jury he and Lyle socialized at the Cortee’s Lounge to “mess with women,” where he drank “one or two beers.” They headed to Walaikum’s after closing time. He said he saw Smut huddled with the Evans brothers and then overheard Smut “whisper something to Tiny and Marquis.” He quoted Smut saying, “that’s one of them right there,” indicating Lyle at the food counter. Following those words, Holliday said Marquis pulled out a gun.

Finally, when Holliday was asked to describe what Smut was wearing, Holliday answered a tan Pele jacket—Pele being “the name of the jacket that was written on the back.”

Sheketoff was quick to interrupt. “What was the answer to that?” Smut was not wearing a tan coat inscribed with the soccer star’s name. He had been wearing a brown leather jacket the night Lyle was killed.

Holliday tried to take it back, saying he actually wasn’t sure what Smut wore. But the damage was done. Sheketoff had emphasized the discrepancy for the jury.

Sheketoff sat listening intently as Holliday finished and, standing to cross-examine him, felt the testimony from the government’s single witness against his client had turned out to be “manna from heaven.” He challenged Holliday’s math on his drinking. “One or two?” Was that credible for Hip-Hop Night at the Cortee’s when he was on the prowl for girls? He asked Holliday more questions about the “Pele” jacket to further drive home the witness’s foul-up. Most important, Sheketoff pounced on the word Holliday had chosen to describe Smut talking to the Evans brothers: whisper. Walaikum’s was packed that night. Even if Smut had whispered something, how could Holliday have gotten it right with all the noise? In relatively quick fashion, Sheketoff showed the jury Marcello Holliday’s testimony was not evidence it should rely on.

In presenting his case, the prosecutor called eleven Boston police officers to the witness stand—officers like Jimmy Rattigan, who described crashing his cruiser to avoid colliding head-on with the fast-moving Lexus, and officers like Roy Frederick, the off-duty cop who retrieved one of the weapons near his front yard. Critical in any murder prosecution was calling the arresting officers to the stand. The jury therefore heard Craig Jones testify about capturing Tiny Evans on the left side of Woodruff Way. Richie Walker took honors for Smut Brown, even though, in fact, Kenny Conley had caught Smut. But because of flawed police reports crediting him, Richie Walker was the cop who took the stand and promised to tell the truth. He told the jury how he ran between the Lexus and a police cruiser, stepping over two fallen suspects, Boogie-Down and Marquis, and then hustled through a hole in the fence to take up after the fleeing Smut Brown.

Jimmy Burgio was the officer who took credit for arresting Boogie-Down, but he was nowhere to be found. Burgio, due to the Cox investigation and the fact he’d taken the Fifth, was off-limits. The prosecutor therefore summoned Dave Williams to speak for his partner, Burgio, and about the arrest he’d taken credit for—Marquis Evans.

It was late in the day. Smut sat at the defense table next to Bob Sheketoff. Williams was the last of a string of officers called to testify. Dressed in uniform, Williams strode into the courtroom and made his way toward the witness stand. Smut watched the tall, broadly built cop with the mustache settling into his chair. His mind began spinning. Smut instantly recognized Williams from the fence. Williams was one of the cops he’d watched haul Mike Cox down and beat him. Smut couldn’t hear Dave Williams’s voice answering the prosecutor’s questions—it was all white noise. His mind was in a paroxysm, crazy with the recognition. He leaned into Sheketoff.

“That’s the guy,” he said. “That’s the guy.”

But Sheketoff didn’t hear his client. He was listening to Williams testify—and was in the midst of his own epiphany. “I’m thinking I know who beat up Mike Cox.”

He found unbelievable Williams’s account of him and Burgio apprehending two suspects in front of the Lexus. For one, it was contradicted by Richie Walker, who said he’d stepped over Boogie-Down and Marquis lying facedown between the Lexus and Williams’s cruiser. Then Williams went on to say he’d chased Marquis fifteen to twenty yards and never knew about a fence with a hole in it encircling the dead end. The distance Williams described would have taken him through the fence and down the hill.

Sheketoff was stunned. It was a story where Williams, conveniently, ended up as far away from the Cox beating as possible. When it came his turn, Sheketoff rose and immediately went after the Boston police officer. He began by bringing out the fact Williams was caught lying by Internal Affairs about the cruiser he and Burgio rode in.

“It was just considered a minor infraction,” Williams said.

He then went for the jugular and challenged Williams about Cox. Pointing to the area on a map of the dead end where Cox was beaten, he asked, “You and Burgio weren’t over here?”

“No, sir,” Williams said.

“Did you see anyone in that area over here behind your cruiser, in this area?”

“No, sir.”

“Did you see any altercation that involved Officer Cox at any time?”

“No, sir.”

The prosecutor began objecting, and the judge called a timeout. He had the lawyers walk to his bench for a conference outside the earshot of the jury. What, he asked, was Sheketoff up to? “I heard Officer Walker’s testimony,” Sheketoff said. “So it seems to me that
this
guy was not out chasing anybody. He was out doing something else.”

But what’s the relevance? The judge warned Sheketoff. “I’m not going to have this a trial of whether or not Mr. Cox was injured rightfully or wrongfully by police officers,” he said. “This isn’t going to be a trial of Mr. Cox’s problems.”

Sheketoff had indeed wandered off track. The case at hand was murder, not justice in the Cox beating. But he was outraged and unable to stop himself from momentarily substituting the public’s interest over his client’s. “Not that it really was any of my business,” he conceded later, “but I’m also a citizen of the Commonwealth.”

While Smut and the others were on trial for the murder of Lyle Jackson, the U.S. attorney’s office in Boston began assuming control of the investigation of Mike’s beating. Bob Peabody and Lieutenant Detective Paul Farrahar went over to federal courthouse, a worn, granite and limestone tower built during the Depression in downtown Boston, as part of the transition, to meet the federal prosecutor and FBI agent heading up the new probe. The Cox case had made it to the big leagues—the top of the investigatory food chain, the U.S. attorney, District of Massachusetts, U.S. Department of Justice.