The Fence: A Police Cover-Up Along Boston's Racial Divide (45 page)

Question Two involved only Burgio: Did he commit assault and battery against Mike? The question covered the accusation that Burgio kicked Mike in the face. Question Three also involved only Burgio: Did he intentionally inflict emotional distress on Mike?

Question Four involved all four—Burgio, Williams, Daley, and Kenny Conley: Were they deliberately indifferent to the use of excessive force? Question Five was for Burgio, Williams, and Daley: Were they deliberately indifferent to Mike’s medical needs?

Question Six involved just Dave Williams and Kenny Conley: “Question Six is the so-called cover-up theory,” the judge said. The legal definition for a cover-up was tricky. Federal civil rights law did not cover an
attempted
cover-up. It only addressed a cover-up that succeeded in blocking justice. So if the jury ruled against the officers in any of the other questions, then that meant the alleged cover-up had failed. “There’s no violation for an attempted cover-up that fails.” Question Six would be moot.

In sum, the judge advised them: “You apply your common sense to evidence in this case as you are reasonable men and women so that justice may be done.”

Now inside the jury room, Carol Goslant had the verdict slip before her. She was in charge of organizing the jury’s consideration of each question. “I was eager to get to it,” she said later. For the first time in more than two weeks, everyone was free to talk about the charges, the evidence, and the witnesses. It seemed complicated at the start—all the legal principles combined with having four defendants—but very quickly Goslant discovered everyone readily shared her view that Mike’s civil rights had been trampled during a brutal assault. The deliberations would revolve around meting out responsibility.

“I was heartened,” she said. The jury dug in and began with Question One.

Elsewhere in the courthouse, the waiting game had begun. While the jury deliberated throughout that afternoon and into Tuesday morning, the lawyers mingled in the hall, hung out in the cafeteria, called into their offices to deal with housekeeping matters for their many other cases and clients. In all his years of practice, Willie Davis never hung around during jury deliberations, but that was because the old federal courthouse was located only a few blocks from his office in Faneuil Hall. The new courthouse was too far a walk, so he stayed put. His partner Fran Robinson, meanwhile, was holed up back at the office preparing for the worst. She was trying to figure out ways to protect Kenny’s assets—as small as they were—in the event the jury found him liable. The jury had his perjury conviction as evidence, and that alone could be used to decide against Kenny. She couldn’t bear hanging out in court. “I was worried,” she said. Kenny was doing his best to keep up routines—errands, the gym, walking his dogs—and Fran had his home and cell phone numbers on hand to call as soon as there was any news.

Mike was in the courthouse, sticking close to Roach, Sinsheimer, and Roach’s partner and law school classmate Robert Wise. Kimberly was not with Mike; she was working. “I didn’t want her there,” Mike said. He wanted to spare her the ordeal. Despite the stoic exterior, Mike wasn’t feeling particularly optimistic. He didn’t doubt the accused cops were guilty, but no one else—not Bob Peabody, not Ted Merritt—had been able to make a case against them. “No one had proven it. I didn’t expect to.”

Rob Sinsheimer, as antsy as he tended to be, resisted talking about the case. Jury speculation was a useless, wasteful exercise, “a rookie thing to do—to wonder, guess, prognosticate.” He did his best to busy himself and try not to think about the trial.

Inside the jury room, jurors had made considerable headway by Tuesday morning. They’d discarded the defense’s chaos theory as unpersuasive. It was a “smokescreen,” Carol Goslant said, that failed to obscure the wrongdoing. “We knew right away these were the officers who had been involved.” Deciding Burgio and Williams were culpable, she said, turned out to be a “fast decision.” That meant Question Six—the one about a cover-up and the one directed at Dave Williams and Kenny Conley—was moot. They barely discussed it, except to note its irrelevance based on the other findings.

The sticking points were Ian Daley and Kenny. Some jurors were convinced Daley was one of the beaters while others argued the evidence hadn’t shown that. It was a question the jury kept circling back to before deciding not to hold him liable in the beating. Kenny Conley also drew considerable attention. Most had been impressed and found him likable, but Bob McDonough was one who wasn’t sure that was enough. “The tunnel vision—I didn’t go for that.” He wondered whether Kenny was like “the nice young kid next door who’s really selling drugs.” It was a tough one to figure out.

But other jurors were unwavering about Kenny—that he’d been unfairly entangled in the scandal. “He was honest, straightforward, and his story never changed,” Sharon Schwartz said. Listening to his testimony about the foot chase and tunnel vision convinced her Kenny did not see Mike or the beating. “The way he testified solidified my point of view that he was innocent.” She couldn’t believe he’d been convicted of perjury.

“Most people felt he got a raw deal.”

Jurors went round and round—about Daley and, to a lesser extent, Kenny. By Tuesday afternoon, they’d ironed out remaining differences and reached unanimity. Through the court officer sitting outside the room, Goslant sent word to the judge. The jury then hung around waiting to be led back into the courtroom. They’d completed their work, to be sure, but a number felt a bit shortchanged, as if their hands were tied.

“I was frustrated higher-ups weren’t on trial,” Schwartz said. “I was frustrated this was a civil trial and not a criminal trial.” To her, the six questions had not gone far enough. “I would like to have ruled against the whole department.” The case, she thought, exposed a dangerous culture of lying that went beyond the four accused officers. “I would like to have said there was corruption in the Boston Police Department.”

Mike was downstairs when he heard the verdict was in. He rode the elevator and hurried down the hall to Courtroom 18. The lawyers were gathering at their tables inside the well. Mike took a seat in the gallery toward the back. The news was breaking so quickly he hadn’t called Kimberly; even if he had, she wouldn’t be able to get to the courthouse in time. The courtroom seemed empty compared to during the trial. Mike realized he practically had the bench to himself. No one was to his left or right. He was alone.

It was 3:45
P.M
. when the jury took their seats in the jury box.

“Madam Forelady,” Judge Young said, “has the jury reached a unanimous verdict?”

“Yes, we have.” Carol Goslant handed the verdict slip to the clerk.

The clerk took the paper. The jurors stood up in the jury box.

“On the use of excessive force theory,” the clerk read, beginning with the jury’s ruling on Question One, “We find for Michael A. Cox against David C. Williams and James Burgio.”

Continuing reading for the jury, the clerk then announced Burgio had committed an assault and battery on Mike. And that Burgio and Williams had been deliberately indifferent to the use of excessive force. And that Ian Daley had been deliberately indifferent to Mike’s medical needs.

The clerk’s voice carried throughout the courtroom, but the rulings weren’t registering with Mike. He thought the clerk was saying the jury had decided for Burgio and Williams, that they were not liable. “I didn’t hear it right.” Maybe it was because he was so conditioned to bad outcomes. “Nothing had gone well since
that
night.”

Mike sat frozen in his seat. But in a few more seconds the truth began to sort itself out, and once that happened, once Mike could feel the truth sinking in and taking hold, he came undone. The clerk was completing the reading of the judgment against Burgio, Williams, and Daley. Mike Cox leaned forward and covered his eyes. He wept.

The judge dismissed the jurors, and the courtroom cleared. In the days to come, Carol Goslant would take her daughter to one of Boston’s holiday traditions—a performance of Tchaikovsky’s
Nut-cracker Suite
. She saw officers directing traffic in the city’s theater district and wasn’t sure she’d ever think of Boston police in the same way. “It scared me a little.” Mike Cox stayed with her. She wrote him a holiday card with a nondenominational greeting: “Peace and Good Will to All.” Inside she wrote Mike was a “man of high integrity” and “courage.” She wished him well.

Inside the courthouse, word of the verdict had spread quickly, as reporters scrambled to catch up to a breaking story that would be front-page news in the next day’s
Boston Globe
and
Boston Herald
.

Willie Davis had immediately called Fran Robinson. “It’s okay,” he announced happily. “It’s okay.” Robinson tracked Kenny down. He was working out at a gym in Southie and had heard the good news on the radio. Kenny took some deep breaths. He was still facing prison—this jury’s verdict didn’t change that. But something felt very different. He’d had his day in court, and when he was given the chance to tell his side, a jury backed him.

Steve Roach, Rob Sinsheimer, and Robert Wise led Mike out of the courtroom and onto the elevator. The mood was restrained. “What for me was a high level of professional achievement was for him, at best, bittersweet,” Sinsheimer said. They’d won, but Mike was far from feeling this was “a champagne popping moment.” They took the elevator to the second floor, where they got off and began walking down a sweeping stone staircase into the lobby of the grand courthouse. The lawyers planned it that way. Television lights and cameras awaited them. There were more media than at any point during the trial about the worst case of police brutality in the city’s history.

The attorneys stepped up to the microphones. “Michael Cox and his family are pleased that the jury saw through the code of silence,” Steve Roach said. Roach did most of the talking. Mike made only a few comments. “I just told the truth.” His eyes were still wet, and he struggled to gain control of his emotions. “I just told the truth.”

Mike was feeling “happy in a sad kind of way.” He stepped past the cameras and the frenzied media bustle, and headed for the door. The hour was barely five o’clock, but outside it was twilight. Snow would soon begin to fall, replacing the day’s fog and rain. Mike walked out the door and into a city ablaze in holiday lights. He just wanted to get home, where he was Mike Cox, thirty-three, a husband and father of three. But for all the tumble of emotions, one fundamental truth was clear: He’d done it. He’d won justice where everyone else had failed. Leaving the civil rights trial behind, he found himself thinking about the police force he felt had betrayed him, and he said to himself, “Okay, do you believe me now?”

Epilogue

F
ollowing the verdict, the spotlight turned from the individual officers to Police Commissioner Paul Evans and Boston Mayor Tom Menino. Based on Judge Young’s plan for Mike’s civil rights action, a second trial against the department and the city was scheduled to start in early 1999.

The court of public opinion was now fully behind Mike. Leading the charge was Brian McGrory, a popular metro columnist in the
Boston Globe
, who decried the city’s determination “to do battle with the decorated cop it failed to help, in a civil trial scheduled to begin next month.”

In one column McGrory wrote: “There is a single, significant difference between the brutal beating of Michael Cox in Mattapan by a group of Boston police officers and the savagery committed against Rodney King on a Los Angeles highway in 1991: a videotape.

“Picture the consequences if a neighbor at the end of Woodruff Way stepped outside with a camera in those pre-dawn hours of Jan. 25, 1995, to record a group of cops kicking and pummeling Cox as he rolled into a fetal position on the frozen ground.

“CNN would have replayed the tape at the top of each hour for days, highlighting the horrific twist that the victim was, in fact, a plainclothes Boston police detective mistaken for a suspect. A blue-ribbon commission would have been named to address the brutality within the Boston force. Shouts for sweeping reform would have echoed across the political landscape.

“Instead, the quiet rustling coming from the city government is the sound of Mayor Thomas M. Menino and Commissioner Paul Evans seeking cover from controversy.”

Menino and Evans soon changed course. In early February, their lawyers worked out a settlement with Mike’s attorneys. There would be no trial—no opportunity for jurors to consider whether Menino and Evans condoned a police culture that turned a blind eye to police brutality and lying. The city would pay Mike and his family about $900,000 plus attorneys’ fees, which pushed the package to more than $1.3 million.

Mike was relieved to be done with it. The financial settlement was fine, to be sure. For him, though, the case was never about money. “I’d gladly give every dime and some to go back to how my life was back before this ever happened.”

Just before the settlement was made public, Mayor Menino finally uttered his first public comment in four years, telling the
Boston Globe
the Cox case was “an occasion we’ll never be proud of. It’s not a happy day, a good day, for the Boston Police Department.”

In the end, the only justice would be Mike’s justice. “We have hit a blue wall,” Donald K. Stern, the U.S. attorney in Boston, said on January 27, 2000, at a press conference called to announce he was shutting down Ted Merritt’s investigation.

The deadline for bringing criminal charges—known as the statute of limitations—had expired on January 25, the fifth anniversary of the beating. “We do not feel we have enough evidence to charge anyone with the underlying beating,” Stern told reporters. “The federal investigation is in an inactive state.”

Burgio, Williams, and any others may have been found liable in Mike’s civil rights case, but they’d eluded any criminal prosecution.