The Fence: A Police Cover-Up Along Boston's Racial Divide (37 page)

But no matter what Kenny believed in his heart, the “time”—a standing-room-only affair that ran deep into the night—proved a public relations disaster. The party played right into Merritt’s theory that Kenny was standing tall for his brothers in blue; now fellow cops were rewarding him by turning out in a show of support. The media bought into this notion of the party as a symbol for the sinister side of police solidarity. Tipped off, a team of
Boston Globe
reporters staked out the hall, and, as part of what amounted to the first in-depth report by the city’s media about the unsolved Cox beating, the newspaper ran a photograph artfully capturing a police cruiser and a throng of men entering the hall. The story, examining the failure to solve the assault, was headlined: “Boston Police Turn Against One of Their Own: Years After Beating, Officer Has Seen No Help from Colleagues.” Echoing Merritt, the message was clear: If Kenny Conley agreed that he had been in a position to see Cox but insisted he didn’t, then Conley must be lying.

Once Mike’s lawyer, Steve Roach, caught wind of Merritt’s new twist in the investigation, he added Kenny Conley as a defendant to Mike’s lawsuit, joining Jimmy Burgio, Dave Williams, and Ian Daley as the officers cited specifically as violating Mike’s civil rights. The lawsuit accused Kenny of essentially the same wrongs as Merritt’s criminal charges—of covering up the beating by lying to the grand jury and failing to cooperate with investigators. Mike had no idea if Kenny Conley was lying. He didn’t know Kenny, beyond the fact that they were about the same age and had grown up in Boston. But Mike understood why Steve Roach wanted to go after him. The logic of Merritt’s point of view was seductive, and Mike certainly knew cops often practiced the art of omission—as if using Wite-Out to erase parts of their memory—to avoid implicating another cop.

While his lawyers worked on his case, Mike worked on holding his world together. His resolve to get to the bottom of the attack didn’t change the mixed bag of setbacks and successes making up the day-to-day. He took the examination for promotion to lieutenant in late 1996. It was like the Mike Cox of old—the one with a once-and-future distinguished police career. But Mike flunked the test, a first for him. His concentration wasn’t the same; he’d robotically gone through the motions. The next year, though, he achieved a personal milestone when at long last he finished Providence College, earning a bachelor of science degree in business management. He and Kimberly were also able to enjoy Craig Jones’s wedding, where Mike served as best man, and then, in the spring of 1997, the Coxes celebrated their own good news: Kimberly was pregnant. In January 1998, they had their first girl, a baby they named Mikaela, joining nine-year-old Mike Jr. and eight-year-old Nick.

But all around there seemed to be reminders of the beating. Commissioner Paul Evans announced a new round of personnel changes in late 1996 that, for Mike, amounted to another bizarre and confusing signal about Evans’s supposed promise to get to the bottom of the beating. Evans transferred Sergeant David C. Murphy to the Internal Affairs Division. He then promoted him to sergeant detective. Murphy was joining Dovidio in the department’s Bureau of Internal Investigations—two sergeants who were part of the supervisory failure that saw the cover-up at Woodruff Way take off and flourish. Mike did his best to avoid them, but there they were, all in the same bureau.

Mike saw land mines inside his division and out. He sidestepped them as best he could. He would work police details while off duty to make extra money. But in April 1997, when Mike was assigned to supervise a contingent of officers from the C–11 station in Dorchester as part of the 101st Boston Marathon’s extensive public safety coverage, he backed out. Mike didn’t want to risk running into two of C–11’s finest, Jimmy Burgio and Dave Williams.

“Virtually everyone that I work with, it seems like, is involved in some way, shape, or form with this case,” Mike said, “whether they are friends with somebody who has been named, or whether their supervisor could be named.” The department “can be a very small place,” he said, and Mike saw trouble everywhere. “I don’t trust anyone.”

Mike and Kimberly had moved from their apartment on Supple Road into their first home. The couple paid $145,000 for the three-story, wood-shingled colonial on Rundel Park in August 1996, fixed it up, and moved in the next summer while Kimberly was pregnant. The six-bedroom house in Dorchester, on a short dead end atop a gentle slope that gave it a commanding presence, featured a picket fence, a gabled roof, and a large front porch. The house enjoyed the shade of two towering trees in the large side yard. But it wasn’t as if the relocation provided Mike any refuge from the storm. The harassment kept coming, despite a new and unlisted telephone number.

The nightmares continued as well, some seeming to come to life. Late one night the first summer in the new house, the doorbell awakened him. Mike climbed out of bed and reached for his Glock semiautomatic pistol. He tiptoed down the stairs. The front windows were open to the breeze, and through them Mike heard the crackle of voices on a radio. In one window he saw the clear silhouette of a man in uniform standing by the door. Mike thought he recognized the officer. Mike stood still. The doorbell rang again. Mike chambered a round. The weapon wouldn’t do him any good unless it was loaded. But he mainly wanted to signal the unexpected visitor that he was armed, and he purposely made plenty of noise while pulling the gun’s chamber.

“You can put that away,” a voice said from outside.

Mike turned on the porch light. He was right; it was Dave Williams.

Mike opened the door, his pistol at his side.

“Someone broke into your car.”

Mike looked past Williams. He saw the rear door of the car parked on the street was open. The interior light was on. The Coxes now lived in a neighborhood in the Area C police district, and Williams was apparently working his usual overnight shift.

Williams asked Mike to see if anything was stolen. Mike stepped out onto the porch. “No,” he said, “I don’t think so.” Williams asked Mike again to check the car. The two men exchanged looks, the eyes of two tigers sizing each other up.

Mike walked to his car, looked around, and firmly shut the door.

“No,” he said. “Nothing’s missing.”

“Okay,” Williams said.

They passed each other. Williams climbed into his cruiser. Then he drove away.

For Mike, it was another of his night’s many mysteries. He had no idea what to make of it. He simply climbed the stairs and went back inside, where he resumed the nocturnal ritual of tossing and turning and worrying about his family’s safety.

CHAPTER 16

A Federal Miscarriage of Justice

W
hen the police union hired Willie J. Davis and his partner to represent Kenny against Merritt’s investigation, it didn’t take Davis long to understand Kenny’s predicament. Davis was a veteran of courtroom battles going back more than two decades, first as a prosecutor and then as a defense attorney. In the mid-1950s, the Georgia native had been a standout in the backfield of the Morehouse College football team, the college in Atlanta where, in 1987, a visiting student named Mike Cox met a Spelman College junior, Kimberly Nabauns. By the late 1950s, he’d moved north to Boston, where he attended law school and was named an assistant state attorney general by the state’s first black attorney general, Edward W. Brooke III. He went on to become an assistant U.S. attorney and then was the first black to serve as a U.S. magistrate on the federal bench in Boston. He entered private practice for good in the mid-1970s. He’d become friends along the way with another young state prosecutor, George V. Higgins, the future novelist known for gritty Boston-based crime stories, especially
The Friends of Eddie Coyle
. When he left government work in 1976, Davis joined Higgins in representing former Black Panther Eldridge Cleaver in California.

It was in 1970, while still a federal prosecutor, when Davis had what he’d later refer to as an experience matching Kenny Conley’s. Working with federal drug agents, Davis secured the indictment of two Boston men on cocaine trafficking charges. The two had long records for violent crime and were widely feared. The prior year, they’d beaten a murder rap in the shooting deaths of a Roxbury civil rights leader and two others. Police and federal agents were looking to arrest them. The next day, Davis and an agent, driving away from a meeting in Roxbury, overheard on their radio that one of the wanted men had been spotted nearby at Dudley Square. Dennis Chandler, known as Deak, was with an unidentified friend. Agents were moving in. Davis was just a block away. He and his companion headed to Dudley Square to join the capture. They pulled up alongside other law enforcement vehicles. The prosecutor had no business getting involved in an arrest, but he was caught up in the moment. “We moved in,” Davis recalled later, “and everyone had a gun but me.” Davis recognized Chandler and locked in on him. “I was looking right at Deak because I knew Deak was bad.”

But as Davis ran he missed the other man with Chandler. Then he missed seeing the other man draw a handgun. And he missed the man raise his arm to point the gun at him. “I never saw any of this,” Davis said. In the next instant, a federal agent, running from the side, jumped the gunman. The pistol was knocked loose and clanked along the sidewalk. “It was the first time I realized there was a second person there,” Davis said. “I was concentrating so hard on Deak, I didn’t see.”

For Davis, whether he believed Kenny Conley or not, defending the client was a professional responsibility. But this was an instance where the lawyer fully believed the client. And, by coincidence, while Davis was taking up Kenny’s defense in 1997, what Davis knew firsthand as “tunnel vision” was being called something else in the research laboratories in the psychology departments at Harvard University in Cambridge, Massachusetts, and at Kent State University in Kent, Ohio. Daniel J. Simons, a Harvard psychology professor, was conducting experiments into “inattentional blindness” or “selective attention” on the eighth floor of the university’s William James Hall. In the argot of the academy, the phenomenon of inattentional blindness was defined as this: “When people attend to objects or events in a visual display they often fail to notice an additional, unexpected, but fully visible object or event in the same display.” In lay terms, Professor Simons explained during an interview, “People count on something unexpected to grab their attention. But often this doesn’t happen. The consequences can be dramatic. Like people assuming a car pulling out in front of them will catch their attention, but it doesn’t, and there might be an accident.” It was in the context of car safety and cell phone use that Simons’s work eventually moved from obscure journals into the public domain. The writer Malcolm Gladwell wrote extensively about inattentional blindness in an article, “Wrong Turn: How the Fight to Make America’s Highways Safer Went off Course,” published in the
New Yorker
magazine in June 2001.

In 1998, Simons and his colleague Christopher Chabris conducted perhaps the most astonishing experiment—what they playfully called “gorillas in our midst.” The researchers began by making a videotape showing two teams of three players moving in a small open area. One team wore white T-shirts and the other team wore black T-shirts. Each team had a basketball and passed it only to teammates. The video lasted about a minute.

Observers were brought in to watch the videotape played on a television monitor. Their task was to focus on the white team and to count the number of its passes. Then came an unexpected event none of the observers were told about beforehand: About halfway through the action, a researcher wearing a full-length gorilla costume walked into the scene and stopped in the middle of all the ball passers. The gorilla turned to face the camera and beat its chest a few times. Then it turned and walked off camera. Nearly half of the observers
missed
the gorilla. The dramatically high rate of “blindness,” Simons noted, showed that “when people are engaged in an attention-demanding task—doing something that requires their attention to be focused on some parts of the world and not others—often they do not see something that is very visible, very salient, but unexpected.

“This doesn’t match at all with people’s intuition.”

It was that “people’s intuition” that formed the core of Merritt’s conviction that Kenny Conley was lying. Even Kenny acknowledged that—saying he should have seen Mike at the fence. The new experiments and data at Harvard quite possibly offered an explanation for why he hadn’t. But Kenny and Willie Davis were unaware of the scientific studies under way several miles away across the Charles River. Kenny would continue to talk in a vague, general way about tunnel vision. The conflict was that he didn’t know why he hadn’t seen Mike Cox, and Ted Merritt thought he had. Merritt kept contacting Willie Davis periodically to say if Kenny would come around his troubles would end. It drove Kenny to existential despair. “What’s going on!” he’d tell his lawyers. “I’m not going to lie for the government. I’m not going to lie for Burgio, Williams, or Daley. I’m not going to lie. That’s it.” He even wished he had seen Mike. “I wish I could turn around and tell Ted Merritt, Yeah, I saw him pulled from the fence. But I can’t.”

The trial was fast approaching. He and Jen talked about the case. Kenny wanted her to grasp the possibility he might be convicted. Jen wasn’t surprised that Kenny wouldn’t lie, but she wondered, like everyone, why he hadn’t seen Mike Cox. But she never doubted him. She certainly didn’t want him to go and say what they wanted to make the case go away. “Just say what you know,” she told him. “How can you get in trouble for that?”

In the case he built, Merritt had no direct evidence Kenny was lying. He did not have a witness who could testify he actually saw Kenny looking right at Mike Cox or at the beating. Merritt’s case was circumstantial, built mainly on three legs—what he would call the “interlocking” testimony of three witnesses: Mike Cox, Richie Walker, and Smut Brown. Mike said he was right behind Smut Brown during the short run to the fence. Richie Walker seemed to back that up, saying he saw Mike chase Smut Brown to the fence. Smut Brown then finished it off, saying once over the fence, he turned and saw a “tall, white guy” standing by the assault of Mike Cox—the same white cop, Brown also surmised, who eventually captured him after a foot chase through the woods.