The Fence: A Police Cover-Up Along Boston's Racial Divide (42 page)

Mike was hoping for the best, and by that he didn’t mean hefty monetary damages. “I hope this case will change the department,” he said. “Because if it doesn’t, I would have lived through a terrible ordeal and no one will gain anything from it.”

CHAPTER 18

The Trial

S
teve Roach, dressed in a dark suit, stood in the well of the courtroom. Even though he was the least experienced, he and cocounsel Rob Sinsheimer had agreed he would start them off. The Cox case was his baby; he’d lived with it for nearly four years and, in the days leading up to the December 7 start, had rehearsed hard for this moment.

He moved deliberately across the thick blue carpet and faced the twelve jurors.

“Good morning,” he said.

“Good morning,” the jury of eight women and four men replied in unison.

Roach paused. He looked at them. Then he began: “Ladies and gentleman, this case is about police brutality, police cover-up and a blue code of silence.”

The jurors, seated in two rows in wooden chairs, listened intently to every word.

The Cox trial was among the first to be held in the new federal district court built on the waterfront in South Boston. Overlooking Boston Harbor, the facility featured a brick dome and curving glass wall that, one architecture critic noted, “falls freely as a sail for seven stories, with nothing touching it, rigged with turnbuckle stiffeners like those on a ship.” The corridors on each floor were open balconies bathed in sunlight. “They line the glass wall like boxes at the opera,” the critic said, “looking out to a magnificent drama of harbor and skyline.”

On the fifth floor, Courtroom 18 was the domain of Judge William G. Young. Young was a history buff who saw that the fixtures in his oak-paneled courtroom replicated those in one of the oldest courthouses in the state—or nation, for that matter—in Newburyport, Massachusetts, a seaside town north of Boston. When he was a judge in the state Superior Court, the Newburyport courthouse had been his favorite. Young applied some personal finishing touches as well. Instead of the portraits of jurists that typically adorned courtrooms, he hung two oil paintings by his father. Both were of ships at sea—
Spinnaker off Target Rock
and
Whale Ship Emerald
.

The Long Island, New York, native was a graduate of both Harvard College and Harvard Law School. During his seven years as a state judge, he presided at the “Big Dan’s” trial in which four men were convicted of raping a woman in a bar. Jodie Foster later starred in the movie about the case. In 1984, President Ronald Reagan appointed him to the federal bench.

Like the jury, the judge settled in to listen to Steve Roach. Young wore wire-rimmed glasses and shifted comfortably in his inky robe. The elevated bench hid the fact that he was short, maybe five-five, which came as a bit of surprise for someone whose voice carried so clearly and sonorously. Looking out, he saw a courtroom filled to capacity. Five oak tables in the large well were all in use. Roach, Sinsheimer, and Roach’s associate had one. The various defense attorneys occupied the others—Kenny Conley’s lawyers Willie Davis and Fran Robinson; Ian Daley’s attorneys; Dave Williams’s attorney; and Jimmy Burgio’s attorney. None of the other defense attorneys wanted to be at the same table with Burgio’s attorney, Tom Drechsler. The judge had ended the fuss by assigning seats.

In the gallery beyond the oak railing, Kenny sat off to one side, making sure to stay away from Dave Williams and the others. He wanted nothing to do with them. Williams sat to the right, his brow furrowed. Ian Daley was seated in another pew. The one face missing in the crowd was Jimmy Burgio’s. He was nowhere to be found. In civil cases, defendants are not required to attend, and Burgio stayed away. Mike and Kimberly Cox sat in the front row directly behind their lawyers. Family, friends, off-duty cops, and reporters filled the oak benches set up in five rows.

Before making way for Roach, the judge took a few minutes to talk to the jury. Chosen first thing in the morning, the jury included a bank teller, a bartender, a teacher, two retirees, and the manager of a restaurant. One, Carol Goslant, was an electrical engineer; Bob McDonough worked for Titleist, the golf ball manufacturer, in the training and development department; Sharon Schwartz was a homemaker.

“You twelve men and women are the judges of the facts,” the judge said. He explained Mike Cox had accused the defendants of his beating and that it was his burden to prove their liability by a “fair preponderance of the evidence.” In other words, his evidence implicating the accused must be “more likely to be true than not true.” The judge made clear to distinguish Kenny Conley. “He’s not suing Mr. Conley on the excessive force theory.” The case against Kenny involved two claims—that he saw the beating and did not intervene to break it up and that he participated in a cover-up afterward. “The law forbids police officers from engaging in a cover-up,” he said. “That means that we are entitled to expect police officers to play it straight.”

The judge told jurors they could take notes. They could ask questions by passing a message to him through his clerk. Finishing up, he explained the lawyers would next deliver their opening arguments—“the guide book of what evidence they hope that they can put before you.”

Judge Young was outspoken in his criticism of trial lawyers who styled themselves as courtroom thespians. He hated that some studied acting. “I’m actually quite hostile to the idea of acting lessons,” he once said. Lawyers, he said, were principally teachers—“teachers of the facts.” It was a demanding task, requiring skills that were “much less than those of an actor and much more the skills of a dedicated teacher. Not glib, not histrionic.”

The judge didn’t have to worry about Steve Roach. For the next fifty minutes, Roach told jurors in workmanlike fashion about Mike’s beating and why the defendants were culpable. “We’re going to show you that these four defendants violated Michael’s civil rights as a result of a brutal beating that took place in the early morning hours of January 25, 1995 and that there was cover-up afterwards.”

Using a map of Woodruff Way blown up into a poster, he pointed out the route of the police chase snaking through the city and then the lineup of cars screeching to a halt at the dead end. He said Williams hit Mike at the fence from behind with either a flashlight or a baton, Burgio kicked him in the face, and Daley got in some licks as well. During the “savage onslaught,” once they realized Mike was a cop, “They ran. They took off. They abandoned him.” That’s the moment the cover-up began.

“They knew they couldn’t claim that this was a suspect who was resisting arrest.” Conley joined the cover-up, he said, by denying he’d seen Mike at the fence—a denial that was the basis for his recent perjury conviction in another trial.

Roach’s own nervousness seemed to show when he faltered while describing Mike’s injuries. “He still has traces of urine in his blood and now it’s four years later.” Realizing the error, he started over. “He still has traces of blood in his urine, rather.”

He never mentioned the blue wall of silence by name, but Roach made clear that police officers were of no help when it came to determining responsibility for the assault. “Not one cop who streamed in that night will come here and say they saw Michael Cox being beaten by a police officer,” he said. For emphasis, he added, “Not one.”

Their case, then, was largely circumstantial. The strategy he and Sinsheimer had devised beforehand was to circle in on the accused by a process of elimination—showing that the assailants had to be the cops they’d accused. To do that, Roach and Sinsheimer decided to rely on Joe Teahan and Gary Ryan, Mike’s gang unit colleagues. Teahan’s account that he and Ryan were in the fourth or fifth car to arrive at the dead end meant the beaters were in the few cars ahead of them. Roach wanted little to do with the fact their accounts were at times contradictory, understanding that he could best seal the deal at the dead end by embracing Teahan and Ryan’s basic storyline about finding Mike alone and bloodied—the functional equivalent of the yellow police tape used at crime scenes.

“One key fact that I would like to point out,” Roach said, “is that Officers Ryan and Teahan closed the universe.” He meant that the only people who could have done the beating were the cops who were at the dead end at the time of Mike’s assault: Craig Jones; Richie Walker, who chased Smut Brown; and then Jimmy Burgio, Dave Williams, and Ian Daley. “The only people who were there who could have done it,” Roach said, “are the three defendants, Daley, Burgio and Williams.”

The point was Roach’s principal and final one: “Ryan and Teahan closed the universe on the people who were there,” he repeated. The evidence in their case, he concluded, will show “that it had to be at least those officers who beat him and at least those officers who covered it up. Thank you.”

Sinsheimer welcomed Roach back to their table. He thought Roach had been terrific. “The culmination of years of work, succinct, boiled down. There wasn’t a phrase in there we weren’t ready to prove.” Roach’s words were also the last for the opening day of the trial. It was nearing one o’clock, the hour Judge Young had marked to end.

“Keep your minds suspended,” the judge advised, a reminder there was still plenty to come. Even so, Sinsheimer was pleased the jurors were heading home with Steve Roach’s words percolating in their minds as the first impression of the case to come.

Everyone in Courtroom 18 was well aware the case was unfolding along with the holiday season, and Judge Young made clear to all of the attorneys his expectation that the trial conclude before Christmas. If ever there was a judge who could deliver on that promise, it was Young—a stickler for preparation and efficiency. He regularly discussed with the attorneys the progress of the case and the time needed for witnesses.

The next morning began with a quick succession of opening arguments from the attorneys for Williams, Daley, and Burgio. They went about attacking the circumstantial case Roach was pledging to present against their clients. It wasn’t close to being as clean and clear as Roach portrayed, they argued, and was bereft of direct evidence, except for the testimony of a drug dealer named Robert “Smut” Brown who had zero credibility.

The first up was Williams’s attorney, Dan O’Connell. The veteran trial practitioner had replaced Carol Ball as Williams’s lawyer when Ball became a state judge. “It’s my privilege to represent Dave Williams,” he told the jury, “who’s seated over there, a Boston policeman.” Each defense attorney seemed to stake out certain themes, and O’Connell’s was that the plaintiff’s evidence was a jumbled mess. “Mr. Roach wants, has indicated that this evidence is going to show certain things happened,” he said. Except there’s a problem: “It’s internally inconsistent depending on which witness talks.”

Next up, Ian Daley’s attorney, Tom Hoopes, went after Mike. He said Mike and his lawyers had come to court acting as if “they wear the white hats.” Not even close, he said. “Things are not as white or black as the plaintiffs suggest.” He called Mike Cox and Craig Jones “two cowboys” for cutting in front of Daley to become the lead police car. They violated a rule that unmarked cruisers not lead chases and put themselves in “harm’s way,” he said, implying Mike Cox was asking for trouble.

Like O’Connell, Hoopes called the case wrongheaded, forcing his client to now defend himself despite his innocence. “Why? Because Mike Cox has brought the suit that you sit on here today. Seeking what? Seeking money.” Mike, he said, was money grubbing. “I’m going to come back at the end of this case, ladies and gentlemen, and ask you one thing. I’m going to ask you not to let gray become green. I’m going to ask you not to let money color, subvert, and twist justice and the truth.”

The gloves had come off. Tom Drechsler, representing Jimmy Burgio in absentia, jumped right in where Hoopes left off. “We don’t want to be here. We didn’t bring this lawsuit.” Mike Cox, he said, “has brought this lawsuit for the purpose of getting money, financial remuneration.” Drechsler ridiculed Roach’s bid to use Teahan and Ryan to seal the dead end. “This is not a closed container.” Police continued streaming down Woodruff Way and were running up from below on foot through a hole in the fence. “Municipal police, state police, Milton police, MBTA police, Housing Authority police, security guards—all were present at this location this particular night.”

Drechsler said the evidence Roach was touting was smoke and mirrors—completely unreliable, given the wild and fast-breaking events at the dead end—“a very chaotic, confusing, dark situation.” Sure, Mike Cox was beaten, but those guilty of the assault fled like ghosts into the night. Jimmy Burgio was a hero, not a beater. “My client did nothing more that night but make an arrest of one of these desperadoes, these murderers.” Most important, he told jurors, they would not hear a single witness linking Burgio to the assault.

“You will hear not one witness say they saw James Burgio raise his hands to anyone or strike anyone or hit anyone, no less Officer Cox. The only thing you’ll hear evidence about James Burgio doing,” he said, “is handcuffing a prisoner.”

Forget what Roach told you. “This isn’t a process of elimination.”

Taken together, the defense was a combination of attack on Mike’s motives and a chaos theory for the beating that would make impossible the jury’s task of assigning guilt. It was certainly true Mike’s case was circumstantial, and it was certainly true, as Drechsler noted, no witness would testify Burgio kicked Mike in the face.

This worried Sinsheimer. He could see why Burgio might be optimistic about his chances. Ted Merritt, despite naming Burgio a target in the criminal investigation, had never sought his indictment—a fact illustrating weaknesses in the evidence. Sinsheimer was worried about “getting over the rail” in their case. By that he meant getting past the possibility of the judge issuing a directed verdict for Burgio. That was when a judge threw out a case because the evidence was so lacking it was unworthy to even send to the jury for its consideration. With Dave Williams, they at least had Smut Brown saying he saw Williams hit Mike. With Burgio, the case was entirely circumstantial.