The Fence: A Police Cover-Up Along Boston's Racial Divide (38 page)

It was a tightly woven package. Except for one problem—Merritt’s case was deeply flawed. For one, Richie Walker had become a mess of contradictions and unreliability. The prosecutor and FBI agent McAllister, studying Walker’s prior statements, noticed that Walker had changed his story. He’d told Internal Affairs he saw another cop running behind Mike, but he never mentioned a word of that during Bob Peabody’s investigation. The FBI agent asked Walker about the discrepancy. Walker came up with a lame-sounding explanation. The first account was untrue, he said, a tale he concocted because he was trying to help. “He felt this way because he knows victim and likes victim,” the agent wrote afterward. “He felt bad that he could not say what happened and therefore convinced himself that he actually saw someone or something.”

The agent had asked Walker to take a polygraph test, and Walker said okay. Then Walker, apparently hopelessly confused, proposed his own truth-seeking exercise: hypnosis. It was a zany, almost circus-sounding idea. Not surprisingly, the FBI did not take him up on it. But Walker didn’t take a polygraph either; he balked the day of the test, saying he’d changed his mind.

The muddle was all there in the agent’s typewritten, two-page FBI report—a document the government was required to turn over to Willie Davis during the pretrial discovery phase. The legal nickname for the exculpatory information was “Brady material,” named after the 1963 case
Brady v. Maryland
, where the U.S. Supreme Court made crystal clear the constitutional importance of the rule: “The suppression by the prosecution of evidence favorable to an accused upon request violates due process.”

But the government never turned over the radioactive memo. In one letter from Merritt that included a section marked “Brady material,” where the memo should have been cited, the letter simply said: “None.” Without the Walker memo, Willie Davis would never get the chance to shred the credibility of a key government witness.

Then there was Smut Brown. Smut appeared before the grand jury the month following his meeting at Merritt’s office in the federal courthouse. He told the grand jury he saw Dave Williams whack a man at the fence. The man was then beaten by officers, he testified, both black and white, dressed in uniform and in plainclothes.

Merritt then asked Smut questions crucial to the pursuit of Kenny Conley. Smut once again said he saw a tall, white cop in plainclothes standing near the beating and that later, after a foot chase, he was caught “by the big white officer.”

With that, Merritt got what he wanted—an apparent identification of Kenny at the fence. Kenny had captured Smut—nobody questioned that—so if Smut was saying the white cop who ran him down was the same white cop he saw at the fence, then Smut Brown was saying Kenny Conley was at the fence. It was a looping but compelling deduction. Merritt left it at that. He didn’t question Smut any further about why Smut thought the cop who arrested him was the same cop he’d seen at the fence. He never had Smut try to pick Kenny Conley out of a photo array or a lineup.

Why risk it? Merritt was looking foremost to squeeze Kenny Conley. He’d rather have Kenny fold than actually take him to trial. But if Kenny was determined to stonewall, Merritt was going all-out, a full-court press. For that, Merritt had secured from Smut the evidence he needed, a circular but nonetheless compelling inference that sounded like Smut was directly fingering Kenny. There was “no prosecutorial purpose” to trying to verify Smut’s account with a photo array. It was useful as it was: a virtual identification. “For the purposes of the case, that was sufficient,” Merritt said later.

Seeking the truth apparently wasn’t deemed necessary.

Smut Brown warily made his way down the third-floor corridor of the federal courthouse, flanked by Indira and his mother, Mattie. They were looking for Courtroom 11. Finding it, they sat on a wooden bench outside. It was Friday, June 5, 1998, the fourth day in the perjury trial of the
United States of America v. Kenneth M. Conley
. Outside, the midmorning weather was comfortable, with partly cloudy skies and temperatures in the high 60s. Inside, the windowless hallway was stuffy and stale. With a new $225 million U.S. District Courthouse due to open in September on the South Boston waterfront, majestically overlooking Boston Harbor, the government wasn’t much interested in the upkeep of the old and worn-out, landlocked facility.

Smut looked around, sizing up the other people hanging out in the hallway. Friend or foe? He was outside his turf; it was as if he’d wandered into a Roxbury or Mattapan neighborhood where he wasn’t welcome, controlled by a street gang he had no ties to.

He’d promised to testify, but that didn’t mean he was happy about it. He was convinced Boston cops were after him for cooperating in the Cox case. Soon after testifying at Merritt’s grand jury, he was busted for selling coke at a Sunoco gas station in Dorchester. He’d driven his red Nissan Maxima to meet a buyer who’d beeped him. Unfortunately for Smut, cops were conducting a stakeout. Initially they thought Smut was his younger brother. Smut was taken in, booked, and put in a holding cell. That’s when things got screwy. Figuring out who he was, one of the arresting officers confronted him. The officer acted as if discovering he’d busted Smut Brown had made his day. “He said to me, ‘You ain’t nothin’ but a piece of shit,’” Smut said. The cop then stuck his hand in the rear pocket of Smut’s pants and, after fiddling around, magically pulled out a plastic bag of crack cocaine. Oh, look what we have here! More evidence!

Eventually, Bob Sheketoff exposed the fact that police had planted the drugs on his client. During the suppression hearing in court, the lawyer vented his frustration. “This case does make me want to make speeches,” he told the judge. “Twenty Boston police officers at the scene of an ‘attempted murder’ of another Boston police officer, and the only one that will speak up and say anything about it is a drug-dealing, car-stealing citizen who, the second he speaks up and says anything about it, finds himself with one problem after another with the Boston police department.” The judge brushed aside the lawyer’s rant, saying it was unnecessary for him to decide the motive for the police misconduct and that the wrongdoing was what mattered. The judge ruled the crack cocaine was inadmissible, and, with that, the case against Smut fizzled.

Smut was left thinking, however, that he wore a bull’s-eye on his back. He sat in the courthouse, slated to be the third witness called by prosecutor Ted Merritt. The courtroom was packed with reporters and spectators, including Jen, Kenny’s sister Kristine, and Kenny’s friends from Southie and from the police force. Like Kenny, they tended to be big and fit-looking, and shoulder-to-shoulder in the courtroom, they resembled a defensive line on a football team. Or, as Merritt would have it, a blue wall. The first witness was Mike Cox, who was in court with Kimberly. Merritt walked Mike through what he remembered about running to the fence after Smut Brown.

Federal prosecutors then called Richie Walker, the second leg in his interlocking web of circumstantial evidence against Kenny. On the stand, Walker displayed none of the shakiness reflected in the explosive FBI report that sat in government files rather than where it should have been—in Willie Davis’s hands. Walker completed his testimony by describing seeing Mike reaching for Smut Brown at the top of the fence.

“Members of the jury,” the judge then said, “we’ll take a ten-minute recess.”

The doors flew open as spectators cleared the courtroom. FBI case agent Kimberly McAllister came out and walked over to where Smut was seated with his mother and Indira; it was part of her job at the trial to “babysit” the government witnesses. Smut was immediately put on edge by the surge of off-duty cops and other bulked-up white guys spilling out into the hallway. A man in the corridor suddenly caught his attention. His heart jumped. He turned quickly to Mattie and Indira, his voice cracking. “That’s him,” he said. Mattie asked what he was talking about. Smut, pointing out a tall, white guy walking away from them, said, “Him! The guy at the fence!”

Smut turned and told the FBI agent—there’s the cop he saw at the fence. He did not know the cop’s name but said, that’s him. “She’s like, ‘No, no, no, no, that’s not the guy,’” Smut said. “I’m like, ‘Yo, it is the guy! I know it’s him.’” It would take Smut a while to sort through the moment. He’d always thought the cop he saw at the fence was the same cop who’d arrested him. He thought that because he’d gotten a solid look at the white cop at the fence—he was tall, white, and wearing a cap. Flat on his stomach a few minutes later, he barely saw the cop who captured him, but from a glimpse he
assumed
he was the cop from the fence. “He’s big, too, with a hat on, and I’m thinking—same guy.” Smut had never had reason to doubt the assumption. Ted Merritt had certainly never asked Smut to explain why he thought the two cops were the same person. Left un-examined, it seemed as if Smut was saying he’d seen Kenny Conley at the fence—a looping deduction that was good for Merritt’s case.

But Smut was realizing this was all wrong. He’d incorrectly merged two cops into one. The mistake meant that walking down the corridor and out of sight was a potential lead in the Cox investigation. Smut tried explaining this to the FBI agent, but she didn’t seem interested. The agent was working to settle her witness down. The short recess was ending, and she wanted to get him on the witness stand.

Smut entered the courtroom feeling flattened. He looked over at the defense table at Kenny Conley. “I have no clue who he is,” he thought. “They got the wrong guy.” Smut walked to the witness stand. He was beginning to sense he was being used.

“Now, please speak into the microphone,” Merritt said after he was sworn. “State your name.”

“Robert Brown.”

“How old are you, Mr. Brown?”

“Twenty-six.”

Smut kept waiting for the courtroom finale when the witness is asked to point out a defendant: Can you please point out the tall, white guy you saw that night at the fence?

No, Smut could not. “I would have said, ‘I seen him out in the hallway.’”

But the Perry Mason moment never happened. Merritt had never needed Smut to directly identify Kenny Conley before, and he wouldn’t now. For his part, Smut was not about to interrupt the proceedings. “I just figured, man, I just want to get this over with. Go get the hell out of there.” Instead, Merritt artfully unveiled the powerful inference created by Smut’s statements that made it seem as if Smut saw Kenny at the fence.

Everyone came away thinking a clear identification had occurred, including Kenny and his attorneys. For his cross-examination, Willie Davis took the standard tack and attacked Smut as a coke-dealing lowlife whose testimony was unreliable. Merritt’s legal sleight of hand worked so well, in fact, that the next day’s news story in the
Boston Globe
drew the following conclusions from Smut’s testimony: “Boston police Officer Kenneth M. Conley stood nearby as a fellow officer was beaten senseless by three or four other officers who mistook him as a suspect.” It had sure sounded that way, even though Smut never said Kenny Conley and always said the “tall, white guy.” Brown, the newspaper reported, “said he made momentary eye contact with Conley, who chased, captured, and arrested him.”

Kenny badly wanted to take the stand in his own defense, but having a defendant testify was always high-risk. His lawyer, Willie Davis, convincingly argued against it. Instead, Davis tried his best to attack the credibility of Merritt’s case and argue that with the chaos of the dead end and Kenny’s “tunnel vision,” it was reasonable to believe Kenny missed seeing Mike Cox or the beating while chasing Smut Brown. He asked rhetorically, if Kenny were lying, why would he say he ran to the fence? “Why would he put himself there?” If Kenny wanted to lie and cover up, he said, why didn’t he concoct a story about being far away from the beating? “Why didn’t he do that?”

But by the time Willie Davis made his closing argument to the jury, little had gone well. Even little things—such as courtroom atmospherics—worked against him. One juror complained to the judge she felt intimidated by Kenny’s wall of friends. The judge ordered the spectators to vacate the front row and sit farther back. More important, Davis was at a disadvantage. He was without the explosive FBI report on Walker, lacked the knowledge and resources to call experts about “inattentional blindness,” and, like everyone else, missed how Smut’s virtual identification had been manipulated by the assistant U.S. attorney.

Merritt was the one with all the cards and, in closing, he expertly argued Kenny Conley, in defiance of common sense, had lied to protect Jimmy Burgio, who Kenny knew “growing up in South Boston.” Referring to Dave Williams, Merritt inserted the distinguishing characteristic, “Kenneth Conley’s academy classmate.” He recapped key testimony and reminded jurors that Smut Brown watched officers beat Mike. “Brown then saw a tall, white plainclothes officer around that group,” he said, “and Brown took off, eventually being captured by that same tall, white plainclothes officer, who you know is the defendant, Kenneth Conley.” It wasn’t tunnel vision that prevented Kenny from seeing Mike, he argued. “It was a deliberate cropping Cox out of the picture.”

Finally, in a flourish, Merritt made clear the motive for Kenny’s stonewalling: the blue wall of silence. “When a witness takes an oath to tell the truth in the grand jury, there is no exception for police officers who don’t want to implicate another police officer who violated the law.” He then noted the power of the code, emphasizing Kenny chose to lie even when the beating victim turned out to be another police officer. “What does that tell you about the power, the forces that were motivating Officer Conley, and what does that tell you about the chances when a victim is a citizen?”

Seated next to his attorney, even Kenny was impressed by how the prosecutor played to the jury’s passions. “Listening to Ted Merritt, I think I’m guilty,” he said later.

The jury thought so too. Following seven hours of deliberations, the jury found Kenny guilty of one count of perjury—of saying he’d not seen Mike Cox at the fence—and one count of obstruction of justice. When the verdict was announced, Kenny, dressed in a brown suit, began rubbing his forehead hard, as if trying to comprehend the news. He hung his head and slumped over the table. Behind him, Jen, his sisters Kris and Cheryl, other relatives, and friends let out gasps. Kris, not one to cry easily, burst into tears. It was hard for her to listen to the judge address Kenny “like the scummiest of criminals.