The Fence: A Police Cover-Up Along Boston's Racial Divide (44 page)

“You’re a cop and you don’t see the blood?” juror Bob McDonough was asking himself. How could Dovidio have not seen that? “He was lying through his teeth.”

Later, when the jury was shown a photograph of Jimmy Burgio, McDonough was reminded Jimmy Burgio was the one defendant who’d been a no-show. “I’d thought it was strange he didn’t come,” McDonough said. “It seemed arrogant.” McDonough studied the photograph, and his impression of the beefy cop with his goatee only hardened. “I was thinking he looked like a guy you wouldn’t like. He looked like a Mafioso.”

McDonough commuted by train each day to the trial. Walking from South Station to the courthouse, he found himself growing wary of his surroundings; in particular, of any Boston cops on foot patrol or in a police cruiser. If he spotted a cop, he would cross the street to avoid any close contact. “I just didn’t like what I was seeing and hearing in court.” He knew he was probably overreacting. “But I just didn’t know—I mean so many of these guys were lying—and you hear about people getting to juries.

“Talk about the blue wall of silence,” he said. “It’s real.”

It was different come Kenny’s time. Like the jurors, Kenny watched as a confederacy of cops took the stand and hemmed and hawed, straining belief. Most days he sat in the gallery with his older sister’s husband, off to the left and behind the table occupied by his attorneys, Willie Davis and Fran Robinson. He wanted his turn.

The moment came ten days before Christmas Day—an unseasonably sunny day in the snowless holiday season. Kenny had not done anything special to prepare—no rehearsals, no coaching from lawyers. His lawyers just wanted Kenny to be himself.

“He was ready,” Fran Robinson said. “He had a lot to tell.”

The lawyers were confident but for one worry: The judge was taking “judicial notice” of Kenny’s perjury conviction. He disclosed to jurors the outcome in Ted Merritt’s prosecution earlier in the year—Kenny had been found guilty of lying to a grand jury and obstructing justice when he said he never saw Mike Cox at the fence.

“You have to accept it,” the judge said. “You can’t question it.”

But, the judge continued, the jury was to free to decide how to factor that information into this trial. “We’ll hear what Mr. Conley has to say about other things.” The jury might view the prior conviction as evidence of a cover-up, as evidence undermining Kenny’s credibility, or not at all. “It’s entirely up to you.”

It all meant that even before Kenny uttered a word he was behind the eight ball. “The jury’s being told he’s a liar,” Fran Robinson said. “How do you defend that?”

Their answer was to let Kenny Conley loose, and once he took the witness stand, Kenny found a groove in Willie Davis’s hands. “Are you familiar with the term tunnel vision?” Davis asked Kenny.

“Yes, I am.”

“Would you tell the jury what you mean by tunnel vision?”

“Tunnel vision would mean,” Kenny said, “that you lock on a particular object and you would basically black out everything else in the surrounding area.”

“And is that what happened to you that night?”

“Yes.”

Davis drew attention to reasons that someone in Kenny’s shoes might “lock on” a suspect that night: First, a fellow police officer had reportedly been shot at Walaikum’s, and, second, as far as Kenny knew, Smut Brown was armed. He spoke in a low voice, a courtroom manner he used by design, requiring jurors to practically lean forward in order to listen carefully.

“Were you ever in a position to see whether or not guns were thrown from the Lexus?”

“No,” Kenny said.

“Did you believe at that time that the man you saw running toward the fence may have had a gun?”

“Yes,” Kenny said.

Davis had Kenny talk expansively about his “activity log” for that night’s shift. Kenny had never claimed credit for arresting Smut, and the other side always portrayed the “omission” as proof Kenny was trying to hide his presence at the cul-de-sac; he didn’t want a paper trail leading to him. Kenny explained that, officially speaking, he did not arrest Smut. “Arrest means that I would be arresting him, filling out the reports, and following up in court,” he said.

“Did you do that with Mr. Brown?” Davis asked.

“No, I did not.” He wrote in his log that he’d “assisted” units from Roxbury and Mattapan. “Because we assisted them,” Kenny said matter-of-factly. “They had the initial call,” he said. Any time he crossed into another police district, he and his partner were backing up other officers who were “handling the reports and the arrests.”

From her seat, Fran Robinson liked what she saw. Kenny was open, respectful, and likable. He was effectively debunking the “Southie stereotype” that Ted Merritt had whipped up and exploited at the criminal trial. “Here’s this well-spoken guy on the stand, dispelling the stereotype of dumb jock,” she said. “Then his rapport with Willie dispelled the other key element of the Southie stereotype—racist.”

Most important, they took aim at the portrayal of Kenny as a brick in the blue wall of silence protecting Williams and Burgio because of their ties as fellow cops. Kenny explained that, sure, he knew Dave Williams as a classmate in the police academy, but they were not close friends; he rarely saw him outside work.

What about another son of Southie? “Have you ever asked Mr. Burgio to go out and have a couple of beers?” Willie Davis asked.

“No.”

“Has Mr. Burgio ever asked you to go out and have a couple beers?”

“No.”

“It’s fair to say Mr. Burgio is not a drinking buddy?”

“That’s right,” Kenny said.

The message was clear: Kenny was not one of them.

“I believe that’s all, your honor,” Davis said.

When their turn came, the defense lawyers called only three witnesses—municipal police officers who’d been at Woodruff Way. It was, at best, a token effort to open up the scene and suggest munies, rather than their clients, had hit Mike.

Burgio, Williams, and Daley remained silent. They were not about to testify—that would open them up to a lengthy and wide-ranging cross-examination by Mike’s lawyers. Besides, Ted Merritt was making cameo appearances in Courtroom 18, seated in the gallery scribbling notes. No way did any of the three want to risk saying something the federal prosecutor could use against them in his criminal probe. “There was a certain grim reaper quality to his presence,” said Kenny’s lawyer Fran Robinson.

Fourteen days after the trial began—and four days before Christmas—the lawyers delivered closing arguments to the jury. The defense lawyers, one by one, stood and told the jury that Mike’s circumstantial case was weak and flimsy. Tom Hoopes said Mike had nothing on Ian Daley. Daley had tried to arrest Mike, he reminded jurors, and was shocked when he realized his mistake. Didn’t that show Daley was not one of Mike’s beaters? His client, he argued, did no wrong, saw no wrong, said nothing wrong.

“The plaintiffs serve you a banquet,” Hoopes said. “They ask you to eat it and come in and deliver a verdict to them.” But time and again they called officers whose testimony was questionable and contradictory—officers like Joe Teahan, Gary Ryan, Craig Jones—and Mike himself. “Is the water a little dirty from the witnesses? Does the wine turn in your stomach a little bit from the witnesses?

“Does the apple have a worm in it? Can you trust that kind of food?”

Tom Drechsler told jurors what Jimmy Burgio would have said in his own defense had he testified—that he was too preoccupied arresting Ron “Boogie-Down” Tinsley to have either hit Mike or seen anyone beating Mike. Echoing Hoopes, the lawyer called Mike’s case a lot of “finger-pointing” and “rhetoric.” No witness had linked his client to the assault. “In the opening statement, I promised you that no one would come forward and say they ever saw James Burgio do anything, and that promise has been fulfilled.”

Dan O’Connell trashed Smut Brown. “Okay, Mr. Brown. We know your pedigree.” The lawyer recounted Smut’s lengthy criminal record. “Yeah, people can change,” O’Connell said, “but this leopard didn’t change his spots by any stretch.” Smut, he noted, had several pending drug-dealing cases to contend with after this trial ended, and that was Smut’s likely motivation for testifying against the police officers. “Do you think for any stretch he doesn’t hope to get something in nature of relief from those cases? Do you really think he doesn’t expect some assistance.”

Smut was damaged goods, he said, a liar. “This is the person they offer to you to believe, when he says David Williams hit Michael Cox. I suggest to you it’s entirely unworthy of belief.” It wasn’t even a close call choosing between Dave Williams or Mike Cox’s circumstantial case featuring Smut Brown. “Here’s a person, David Williams, I suggest, that comported himself in the best traditions of the Boston Police.”

Following a recess, Rob Sinsheimer walked to the podium. Throughout the trial he’d lobbied and finally persuaded Steve Roach that, with his experience, he should deliver their final argument. “May it please the court, counsel, Madam Forelady, ladies and gentleman: It is now my solemn duty and obligation to have just a few last words with you on behalf of Michael Cox.”

For weeks he’d been jotting notes with the closing in mind. Lines came to him at night, while driving or taking a shower—ways to organize the speech, tie together the pieces of the case. It was what happened to most trial attorneys, living the case day and night.

“You’ve heard it said that we have the burden of proof,” he told the jury. “We don’t duck from that at all.” His voice felt dry; it was a mixture of his allergies and the importance of the moment. “What I would like to do is explain to you exactly why we believe the evidence you’ve seen is more than adequate, indeed is abundant for you to find it’s more likely than not that these defendants are the ones who did it.”

Sinsheimer had pumped himself up. He was feeling that day after day they had methodically gained momentum. He considered one turning point was Sergeant Dan Dovidio’s testimony. “It wasn’t so much that it was legally relevant, but you felt the atmosphere changing in the room.”

Sinsheimer was confident, particularly regarding the brutality charges against Burgio and Williams. In its best light, the circumstantial evidence, combined with Mike’s testimony that a white cop kicked him, pointed to Burgio, while the same evidence, combined with Smut Brown’s testimony about Dave Williams, showed Williams was in on it too. It was a huge loss not having the jury learn what Williams told Craig Jones at the Roxbury station, but Sinsheimer still thought they had enough.

The case was not nearly as powerful against Conley or Daley. They’d been unable to add much to the judicial notice of Kenny’s perjury conviction and were left relying largely on that fact to argue Kenny saw the beating and was both “deliberately indifferent to excessive force” and part of a cover-up.

With Daley, the judge nearly threw out the claim he was a beater, troubled by the thin evidence. But the case was stronger in showing that Daley left Mike after trying to arrest him—“a deliberate indifference to his medical needs.” Moreover, Sinsheimer was convinced Daley, if not a beater, saw and knew plenty about the beating, but had shut down and stonewalled justice.

“There’s no contest to the notion that this was offensive to human decency,” Sinsheimer said as he stood within a few feet of the jury box. He then marched through the evidence, triangulating the short time frame during which the beating occurred with a head count of the suspected officers at the dead end. He stressed Smut Brown had no motive to lie and was therefore credible, despite his criminal record. He revived Joe Teahan’s arrival and statement that maybe four or five cars were already there to seal the scene. “I suggest to you if we can account for those four or five cars, then we’ve met our burden of proof.” Then he recapped a process of elimination that zeroed in on his targets.

“Now, what do you hear from the defendants?”

Sinsheimer had reached a key and climactic line, a moment when he’d planned to turn and point outward to the gallery where the defendants sat. It would be a dramatic gesture setting up the answer to the question he’d left hanging in the air.

But as he did, as he looked out, he saw Mike Cox seated alone, and he caught Mike’s eye. Mike appeared to be choking up. Sinsheimer was thrown off briefly. “It made me emotional,” he said later, “and I thought for a fraction of a second I might lose it, appreciating the magnitude of the case and what Mike had gone through.” He turned back to the jury and collected himself. “What do you get in response?” he asked.

“Nothing but lies,” he said. “And silence.”

Sinsheimer paused to let the words sink in.

“Lies and silence,” he repeated.

Sinsheimer walked back to his chair. Judge Young told jurors it was time for them to deliberate. “We should have lunch in there for you now,” he said. The judge said they could eat first and then begin their discussions or they could start working right away. “Once we give the case to you, you are in charge.”

Everyone in the courtroom stood as the jury left at 1:22
P.M
. The judge’s chief clerk led them across the hallway behind the courtroom. They entered a rectangular-shaped room with a long oak table in the middle. The jury room’s four windows had an unremarkable view of a sprawling asphalt parking lot and, beyond it, the piers and undeveloped waterfront of South Boston. A court officer was stationed outside.

Some jurors grabbed sandwiches and drinks while others used the bathrooms at the far end. Soon enough each had chosen one of the oak chairs padded with blue cushions, and, on the afternoon of December 21, with the holiday season in full swing, they took up the case. “We wanted to get out of there,” Bob McDonough said, “but we also wanted to do the right thing.” Carol Goslant was the foreperson, and before taking a vote on any of Mike’s claims, “we began by discussing the events of the night.”

Judge Young, in his instructions, had gone over the six questions the jury was to decide. “Let’s come to the first question,” he’d said. Question One involved Jimmy Burgio, Dave Williams, and Ian Daley: Did any of them use excessive force? Mike Cox “doesn’t complain about being grabbed or stopped, even if the whole thing was a mistake,” the judge explained. “What he complains about is the use of excessive force.”