The Fence: A Police Cover-Up Along Boston's Racial Divide (35 page)

The case was assigned to S. Theodore Merritt, a forty-four-year-old assistant U.S. attorney, originally from New York City. His given name was Stephen, but he went by Ted. Merritt had attended Harvard College and then Villanova Law School. He went to work for the federal government right away, in early 1978, after passing the bar exam. He began as a staff attorney in the Civil Rights Division in the Department of Justice. Seven years later, in 1985, he moved to Boston to become a prosecutor, first in the Criminal Division and then in the Public Corruption and Special Prosecutions Unit.

In court, the dark-haired Merritt often came off as humorless and all-business. He wore a neatly trimmed mustache and was average in height and build—standing no more than five feet, nine inches tall—but loomed larger, given his intensity. Some opposing attorneys found him menacing, a prosecutor who always made it clear he was acutely aware of the enormous power of the federal government and how it could upset people’s lives. By the mid-1990s, specializing in public corruption, he’d made his mark as a prosecutor who mostly prevailed in court, and when he did, took no prisoners.

His cases included those of the ex-police chief of Winthrop, a town just north of Boston, who for more than a decade accepted $70,000 in bribes from the operator of video-poker machines; the Massachusetts state trooper who, while on duty, beat up a man outside a bar and lied afterward to cover it up; the guard in a county prison who threw a cup of boiling water on an inmate, in restraints, who was awaiting trial for the rape and murder of a young girl. In each, Merritt either won at trial or got the suspects to plead guilty.

During the meeting with Peabody, Ted Merritt and his investigators were given a quick rundown of the stymied investigation. The targets were identified—Jimmy Burgio, Dave Williams, and Ian Daley—as was the theory that Mike Cox was assaulted by at least one and possibly three cops. In the big leagues that belonged to the “feds,” the main strategy to break a logjam was to find a cop to “squeeze.” Best case scenario: This cop was on the periphery of the crime and either had witnessed or possessed information about the actual wrongdoers. Once identified, the feds would then go after the cop, apply their considerable legal muscle so that he suddenly faced a choice: Either get hurt by the government or cooperate. The pitch went something like this: We don’t want to hurt you; we want your cooperation. But if you don’t cooperate, we will hurt you. “This is how they work,” one veteran Boston defense attorney said. “They target people, they give them bad choices, and they hope they choose Team America.” In the end, the witness was a stepping-stone, a pawn in a larger prosecutorial game.

Paul Newman once starred in a film showcasing this classic federal strategy. The 1981 film, which also starred Sally Field as a newspaper reporter, was
Absence of Malice
. In it, a fictitious federal prosecutor named Elliott Rosen, based in Miami, is under intense pressure to solve the mob hit of a union boss. Rosen decides Newman, playing a liquor distributor and the son of a deceased crime figure, must know—or could find out—something. He puts the squeeze on Newman, having FBI agents tail him and IRS agents scour his books looking for something to pressure Newman into cooperating. Even though it’s bogus, Rosen then leaks to reporter Sally Field that Newman is the subject of a federal investigation into the murder. Rosen hopes Newman, feeling his life might be in danger from others in the underworld, will come around. But Newman knows nothing—has, in short, nothing to trade—and he spends the movie working his way out from under the intense federal scrutiny and exacting revenge against the corrupt Rosen.

Ted Merritt was no Elliott Rosen. (Rosen’s corrupt practices included having FBI agents illegally bug Newman’s telephones.) But, like Rosen, Merritt was inheriting a big case in the unsolved beating of Mike Cox, a case where every other investigator had come up short. The Cox investigation was no different, either, from the standard operating procedure. Find a cop to squeeze. The question was: Which cop?

During the fall, Merritt and his investigators began combing through all the files and transcripts from prior probes. They had everything, including early reports filed to the police department’s Internal Affairs Division, which had been off-limits to Bob Peabody. It was during this process of carefully reading their way into the case that they came across some of the material Peabody never had—namely, the incident reports originally filed on March 3, 1995, by Kenny Conley and Bobby Dwan. Merritt was fascinated by Conley’s. In particular, Merritt focused on where Conley described chasing Smut Brown: “I then observed a black male, about 5' 8" in height, wearing a brown leather jacket, who I observed exit the suspect’s motor vehicle from the right side, climb over a fence. With the suspect in view, I jumped over the fence and after a lengthy foot pursuit, I was able to apprehend the suspect in the rear of a building.”

To Merritt, it surely felt like a discovery—a diamond in the rough. Here was a cop saying he scaled the fence where Cox was beaten. Conley must have seen something. It only made sense. Yet nearly two years had passed since Conley’s report to Internal Affairs, and no one had pursued the matter further with him. Conley never even took credit for arresting Brown—that went to Richie Walker. It all seemed odd. Cops usually wrestled for credit. Was Conley hiding something?

It would be early 1997 before Merritt’s investigation was going at full speed, but Kenny Conley had high potential. The Conley report vaulted to the top of the pile.

In his closing remarks to the Suffolk County jury on November 7, Bob Sheketoff said Lyle Jackson’s shooting was “spontaneous” and not a planned killing, or joint venture, as the prosecutor was claiming. Focusing on the lack of credibility of the lone witness against Smut, he portrayed Marcello Holliday as an intoxicated patron at Walaikum’s who couldn’t tell up from down. “Could he have had three or four beers, maybe a few more than that?” He reminded jurors that while Holliday accurately described the others’ garb, he got Smut’s wrong. “He couldn’t remember one single thing about my client, not one.” Most important, he returned to Holliday’s use of the word “whisper.” “That place was abuzz.” If Smut Brown said anything, how could Holliday have heard? “Did he say, ‘That’s one of them,’ or did he say, ‘I don’t want any?’” Or maybe ‘ “Sure, I’ll get you a hamburger?’” Sheketoff said Holliday could not make out normal conversation, never mind a whisper. “Don’t let some person who tried to tell you what a whisper was, whose testimony is contradicted by every other eyewitness in terms of the sequence of events, don’t let him convince you beyond a reasonable doubt.”

Sheketoff was feeling pretty good about his client’s chances. He didn’t think, however, it looked good for either Tiny or Marquis Evans. Both had taken the unusual step of testifying in their own defense. It was disastrous. Tiny’s demeanor, hard looks, and stutter worked against him. He said his brother and Boogie-Down walked ahead of him into the restaurant. He lost sight of them, and, seconds later, the shooting began. Tiny’s claim of complete ignorance was beyond belief. Marquis then testified his gun went off accidentally and just kept firing bullets on its own. Sheketoff, seated at the defense table, spotted a juror actually swivel in his chair to turn his back on Marquis. “Talk about someone who has stopped listening,” Sheketoff thought. “How more clearly can you express you don’t believe the witness?” In his closing, the prosecutor jumped all over Marquis’s claim of accidental shooting. “Did you believe anything he said?” he asked. “He just happens to have the loaded nine millimeter handgun in his hand. He starts spraying the ground, because he’s afraid. Is there a scintilla, a shred of truth to that? Even a shred? It’s pathetic. That testimony was pathetic. Of course, that’s for you to determine.”

Jurors decided it was indeed pathetic. They convicted Tiny and Marquis of first-degree murder, and the brothers were sentenced to life in prison without parole. The jury then acquitted Smut and Boogie-Down. Smut was hugely relieved—he’d gotten justice, but he also considered it rough justice. He understood the legal theory of joint venture and thought if that fit Tiny and Marquis, it fit Boogie-Down as well. But the government had nothing on Boogie-Down, and Boogie-Down was going home too.

Following the verdict, Smut turned in his seat and looked at his mother, his sisters, and Indira. His mother and Indira had come every day to the trial. Smut wore that signature smile of his—the curl that mixed mischief and deep relief. Ten minutes later he was a free man, embracing his mother in the hallway outside the courtroom. Then he swept up Indira. He thanked Bob Sheketoff. He had been behind bars for twenty-two months. The family rode the subway’s red line to Mattapan and celebrated Smut’s acquittal at Smut’s old haunt. The last time Smut was in Conway’s was the night Lyle was killed. Smut stayed for one drink; all he wanted was to go home and be with Indira and eight-year-old Shanae and five-yearold Robert Brown IV.

Sheketoff had something else on his mind. He’d just completed a murder trial with a bizarre side show—the unsolved Cox beating—featuring Boston cops testifying at cross purposes and contradicting one another. It stunk of a cover-up. Federal prosecutors, taking over the investigation, were looking to talk to Smut. Sheketoff was planning to encourage Smut to cooperate. In all his years, he’d never heard about such grotesque police misconduct and abuse of police—and, after two years, they seemed to be getting away with it. These cops, Sheketoff believed strongly, “needed scrutiny.”

By early in 1997, Smut Brown found himself a part-time job in a manufacturing plant. He also resumed what he knew best—selling cocaine. In February, he was arrested by Boston police and charged with dealing coke and pot. He made bail. The FBI came around Mattie’s house in Mattapan looking for him, but Smut wasn’t home. Bob Sheketoff then called and explained Ted Merritt wanted him to testify before a federal grand jury investigating the Cox beating. But first, Sheketoff said, Merritt wanted to meet. “I was reluctant,” Smut said. “I was telling him I didn’t want to be in the middle of that. I was like, you know, I’m out here on the street and, you know, I don’t want to be going against the police, man, because I’m nobody. Who’s going to believe me?”

Sheketoff urged him to tell Merritt what he’d been telling him for a couple of years. Smut thought it over. He talked to his mother and Indira and decided to talk. “I thought it was right,” Smut said. But he had other reasons for cooperating. The first had to do with his ill-will toward the Boston police. “In my own way it was like getting back at them for what they did to me. I’m not gonna sit here and say I wasn’t bitter.” Finally, there was Mike Cox. He respected Cox. “He always treated me fair.”

The next month, he and Sheketoff showed up at Merritt’s office. Besides Merritt, the lead investigator, an FBI agent named Kimberly McAllister was there. Smut told the feds what he saw in the seconds after he scaled the fence and before he took off on foot. He described Cox—who, at the time, Smut thought was Marquis—getting beaten. He identified Dave Williams as one of the beaters.

Then Smut said that standing next to the melee was a “tall, white guy.”

Tall, white guy?

Yeah, Smut said. Tall, white guy—standing there by the beating.

Did he know the cop’s name?

No, Smut said.

Ever see him before?

No, Smut said. Except he was the same cop who arrested me.

Merritt was eager to get Smut Brown before the grand jury.

Kenny Conley was half asleep in the living room of his second-floor apartment in South Boston. His tall, muscular frame was stretched out on the couch. It was Wednesday, March 26, raining outside, and Kenny was trying to get some rest after his overnight shift. There was a loud bang at the door.

He scrambled up off the couch. He’d been living in the second-floor walk-up at 720 East Seventh Street for only a couple of months. The triple-decker was owned by his twin sister Kris’s boyfriend’s brother. It sounded complicated, but that was Southie. Couldn’t beat the friendly rental. Kenny was also feeling good about something else in his life—Jennifer Gay. He had been seeing Jen, pretty, petite, and brown-haired, since they met during Octoberfest on the waterfront. It was getting serious. For her work as a nursing home administrator, she’d moved during the winter to the town of Lee in western Massachusetts, but they were spending most weekends together in Boston.

Kenny pulled open the front door. The landing did not get much natural light and was a bit dark. Standing there were a woman and a man, both well-dressed.

The woman identified herself as Kimberly McAllister of the FBI.

We’d like to speak with you, she said. We think you can help us with a case we’re investigating.

Sure, Kenny said. Come on in.

CHAPTER 15

The Perjury Trap

F
ive months later in New York City, the police assault of Haitian immigrant Abner Louima was the talk of the nation. Louima had been arrested following a disturbance outside a nightclub on August 9, 1997. Taken to the 70th Precinct station house in Brooklyn, he was beaten and sodomized in the bathroom by a patrol officer named Justin Volpe. Volpe kicked and pummeled Louima, and then, with Louima’s hands cuffed behind his back, shoved a plunger up his rectum. By month’s end, thousands of demonstrators were protesting outside city hall and the precinct station as part of a march called Day of Outrage Against Police Brutality and Harassment.

In Boston, when Kenny Conley’s telephone rang on the evening of August 14, he took a deep breath. He picked up the receiver. It was his lawyer, one of two hired by the police union to represent him in a legal mudslide that had begun when the FBI agents came by his apartment.

His lawyer told him to sit down. Then she broke the news: Earlier in the day assistant United States attorney S. Theodore Merritt had obtained a three-count indictment charging Kenneth M. Conley with twice lying before his federal grand jury and with one count of obstructing justice.