The Fence Part 13

"As I was running towards him."

Merritt then loaded up and asked Kenny a set of rapid-fire questions about Mike c.o.x: Did you see "another individual" running after s.m.u.t Brown? Did you see "anyone else in plainclothes" right behind Brown? Did you see an officer in plainclothes at the fence "standing there, trying to grab" Brown as the suspect scrambled over the fence?

To every question, Kenny said: "No, I did not." Openly and politely, he answered everything Merritt threw at him-to a fault. Merritt, finishing up, masterfully baited Kenny with a hypothetical question incorporating information he was gathering from others about the events at the fence: "If these other things that I've been describing, a second-another plainclothes officer chasing him and actually grabbing him as he went to the top of the fence, you would have seen that if it happened?"

Kenny, without hesitation, said, "I think I would have seen that."

It was the kind of exchange that makes any prosecutor's list of greatest moments. A more sophisticated witness would know to avoid this sort of hypothetical question that was like a bed of leaves concealing a steel trap. But Kenny was being Kenny-ever-helpful, straightforward, and even naive. Yeah, if Mike c.o.x was hard on Brown's heels and grabbing at Brown at the fence, I think I would have seen that.

Kenny hadn't seen Mike, but Merritt, in that quick repartee, had finessed it so that Kenny had concurred with the very argument Merritt was planning to use to prosecute him: Kenny Conley himself says he would have seen Mike c.o.x if c.o.x and Brown were at the fence together; ergo, dear jury, the fact that Conley denies seeing c.o.x means Conley is lying! Case closed.

Next to losing his mother, the federal indictment on perjury charges was the worst day in Kenny's life. He was immediately suspended without pay from the force. The department seized his badge and gun. But while he tumbled into an emotional free-fall, his two sisters and close friends rallied the only way they knew how.

The tickets-about the size of a business card-began selling early in November. Poster-sized versions appeared in storefronts around the neighborhood, one-by-two-foot slabs of cardboard announcing, "A Time for a Friend." The party was scheduled for Friday night, November 28, nearly three years to the day from the death of Kenny's mother. The ticket promised a "DJ" and "Raffles" and requested a donation. Kenny first learned about the fund-raiser when he spotted a poster in Java House, the shop on East Broadway around the corner from his family's house on H Street, where most mornings he grabbed a light coffee. Then, as the end of November approached, a flier circulated in his old district station, where Kenny was now officially persona non grata. "Let's Go Folks!" the flier began. "Ken Conley Time." The date was included, along with the names of the contact persons: "McDonald, Mags or Hopkins." Danny McDonald had been Kenny's partner, except for the night he rode with Bobby Dwan. Billy Malaguti was a veteran cop and union representative. Tommy Hopkins was one of Kenny's pals.

Kenny had specifically told his twin sister, Kris; his sister Cheryl and her husband, John; as well as his boyhood pal and fellow cop Mike Doyle, that he did not want a party. He didn't want to be the center of attention; he was ashamed about the fix he was in and just wanted to hide. But that was like asking them to deny their roots. Holding a "time" for a friend was the Southie way; it was in their DNA.

The night after Thanksgiving, a clear, cold night with temperatures below freezing, hundreds of Kenny's family and friends poured into the hall rented for the occasion. The Florian Hall in Dorchester was a Boston fixture, a single-story brick building famous for blue-collar parties of all kind-family, political, and work-related. It was visible from the southbound lane of Interstate 93 running through the city. Highway drivers that night not only caught a glimpse of a sea of parked cars, including police cruisers, and partygoers streaming through the double front doors under the hall's own red-neon sign, they also saw Kenny's name flashing on the digital billboard erected alongside the highway at the headquarters of Local 103 of the International Brotherhood of Electrical Workers.

Besides friends, plenty of off-duty cops were in attendance. Bobby Dwan, for one, was there. So too were a few sergeants who were Kenny's patrol supervisors. Cops who knew Kenny and, like Bobby Dwan, knew Kenny was a straight-shooter. But Kenny also realized there were cops showing up, cops he didn't know very well, who a.s.sumed he was lying about Woodruff Way to protect fellow officers. Kenny got that feeling when some came over to offer a thank-you with a knowing wink and a nod. But, said Kenny, they were wrong to think that about his grand jury testimony. "I was telling the truth. I was not going to risk my career and family. I was just getting started with Jen."

It led to awkward moments. Kenny was standing in the hall drinking a beer, talking with friends, when a hand came up and over his back from the crowd behind him. Kenny grabbed the hand. "I didn't know who the h.e.l.l I was shaking hands with," he said. He turned to look and froze. "It was him." Jimmy Burgio was pumping his hand. Kenny walked away, "p.i.s.sed off, I would say." And Burgio wasn't the only unwelcome guest. Dave Williams showed up, but as soon as word got around among Kenny's friends, he was asked to leave. The cold shoulder was hardly the stuff of a one-for-all-and-all-for-one.

Kenny would go back and forth in the months afterward on whether the party was a lousy idea. Celebrating a cop accused of perjury and obstruction of justice certainly looked bad. But he could not fault what was at its core-family support. "Maybe it was bad timing, but it was out of the kindness of these people, getting together. No one was thinking about the politics of it." Kenny couldn't worry about appearances. Besides, the party did serve its purpose. It buoyed his spirits, knowing his family and his many friends from the old neighborhood believed him, even if federal prosecutors, the FBI, and the Boston police bra.s.s did not. And over time, the gra.s.sroots support for Kenny continued to spread. Stickers appeared on car b.u.mpers, and signs were propped in the windows of homes around Southie: "Justice for Kenny Conley."

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 c.o.x 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 a.s.sault, 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 c.o.x 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 c.o.x 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 c.o.xes 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 a.s.signed to supervise a contingent of officers from the Ca11 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 Ca11'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 hara.s.sment 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 c.o.xes 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 pa.s.sed 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 When 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 c.o.x 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 a.s.sistant state attorney general by the state's first black attorney general, Edward W. Brooke III. He went on to become an a.s.sistant 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, Ma.s.sachusetts, 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 a.s.suming 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 pa.s.sed 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 pa.s.ses. 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 pa.s.sers. 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 c.o.x, 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 c.o.x. 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 c.o.x or at the beating. Merritt's case was circ.u.mstantial, built mainly on three legs-what he would call the "interlocking" testimony of three witnesses: Mike c.o.x, Richie Walker, and s.m.u.t Brown. Mike said he was right behind s.m.u.t Brown during the short run to the fence. Richie Walker seemed to back that up, saying he saw Mike chase s.m.u.t Brown to the fence. s.m.u.t Brown then finished it off, saying once over the fence, he turned and saw a "tall, white guy" standing by the a.s.sault of Mike c.o.x-the same white cop, Brown also surmised, who eventually captured him after a foot chase through the woods.

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 doc.u.ment 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 const.i.tutional 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 s.m.u.t Brown. s.m.u.t 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 s.m.u.t questions crucial to the pursuit of Kenny Conley. s.m.u.t 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 s.m.u.t-n.o.body questioned that-so if s.m.u.t was saying the white cop who ran him down was the same white cop he saw at the fence, then s.m.u.t 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 s.m.u.t any further about why s.m.u.t thought the cop who arrested him was the same cop he'd seen at the fence. He never had s.m.u.t 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 s.m.u.t the evidence he needed, a circular but nonetheless compelling inference that sounded like s.m.u.t was directly fingering Kenny. There was "no prosecutorial purpose" to trying to verify s.m.u.t'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.

s.m.u.t 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.

s.m.u.t 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 c.o.x case. Soon after testifying at Merritt's grand jury, he was busted for selling c.o.ke at a Sunoco gas station in Dorchester. He'd driven his red Nissan Maxima to meet a buyer who'd beeped him. Unfortunately for s.m.u.t, cops were conducting a stakeout. Initially they thought s.m.u.t was his younger brother. s.m.u.t 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 s.m.u.t Brown had made his day. "He said to me, 'You ain't nothin' but a piece of s.h.i.t,'" s.m.u.t said. The cop then stuck his hand in the rear pocket of s.m.u.t'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 s.m.u.t fizzled.

s.m.u.t 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 c.o.x, who was in court with Kimberly. Merritt walked Mike through what he remembered about running to the fence after s.m.u.t Brown.

Federal prosecutors then called Richie Walker, the second leg in his interlocking web of circ.u.mstantial 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 s.m.u.t 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 s.m.u.t was seated with his mother and Indira; it was part of her job at the trial to "babysit" the government witnesses. s.m.u.t 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. s.m.u.t, pointing out a tall, white guy walking away from them, said, "Him! The guy at the fence!"

s.m.u.t 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,'" s.m.u.t said. "I'm like, 'Yo, it is the guy! I know it's him.'" It would take s.m.u.t 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 a.s.sumed he was the cop from the fence. "He's big, too, with a hat on, and I'm thinking-same guy." s.m.u.t had never had reason to doubt the a.s.sumption. Ted Merritt had certainly never asked s.m.u.t to explain why he thought the two cops were the same person. Left un-examined, it seemed as if s.m.u.t was saying he'd seen Kenny Conley at the fence-a looping deduction that was good for Merritt's case.

But s.m.u.t 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 c.o.x investigation. s.m.u.t 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.

s.m.u.t 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." s.m.u.t 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."

s.m.u.t 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, s.m.u.t could not. "I would have said, 'I seen him out in the hallway.'"

But the Perry Mason moment never happened. Merritt had never needed s.m.u.t to directly identify Kenny Conley before, and he wouldn't now. For his part, s.m.u.t was not about to interrupt the proceedings. "I just figured, man, I just want to get this over with. Go get the h.e.l.l out of there." Instead, Merritt artfully unveiled the powerful inference created by s.m.u.t's statements that made it seem as if s.m.u.t 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 s.m.u.t as a c.o.ke-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 s.m.u.t'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 s.m.u.t 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 c.o.x or the beating while chasing s.m.u.t 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 s.m.u.t's virtual identification had been manipulated by the a.s.sistant 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 cla.s.smate." He recapped key testimony and reminded jurors that s.m.u.t 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 c.o.x 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 pa.s.sions. "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 c.o.x 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 sc.u.mmiest of criminals.

"Kenny was no longer this decent guy with tons of potential," she said. "He was found guilty and had to put his affairs in order to go to prison. It was mind-blowing."

One veteran police officer afterward called the verdict a "lose-lose" situation. "Everybody feels sorry for c.o.x," he said. "But Conley is just a p.a.w.n being played."

Three months later, on September 29, Kenny was sentenced to serve thirty-four months in a federal prison and fined $6,000. Kenny stood to speak. "I have felt bad for Michael c.o.x," he told the judge. "If I could help him I would have-if I knew who did it."

Merritt had won the case, but the victory proved pyrrhic. He kept after Kenny to change his story, but he would not-could not. Kenny instead began fighting for his name, appealing the conviction and gaining supporters. It was all part of the gross miscalculation on Merritt's part-to devote a year or more in the pursuit of Kenny Conley in the mistaken belief that he was the witness who could break open the c.o.x beating. Merritt's criminal investigation, though still ongoing, became stymied and stuck in the mora.s.s of the fallout over Conley's conviction. Instead of opening doors, the Conley matter became a bitter and paralyzing distraction.

Three years had pa.s.sed since the night Mike was attacked and abandoned on Woodruff Way, and none of the investigations had gotten to the truth. First the police department's Internal Affairs Division came up short. Then Bob Peabody's Suffolk County grand jury investigation faltered. Finally, Merritt and his team of federal investigators not only failed, they'd undermined justice with the wrongful conviction of Kenny Conley. It was the investigatory equivalent of three strikes.

Mike c.o.x was left to find his own justice. His was the last case standing.

CHAPTER 17.

On His Own Three days after Kenny Conley was sentenced to prison, Jimmy Burgio, burly and barrel-chested, was working a paid detail at Nancy Whiskey's, one of Southie's more rough-and-tumble bars. He was stationed at the door in his Boston police uniform.

It was Friday, October 2, a cool night in early autumn. Burgio had a regular gig at Nancy Whiskey's. He liked the extra money, of course, but he also liked the body contact. The bar drew a hard-drinking crowd; on occasion, a melee would erupt, like a bench-clearing brawl in ice hockey, the sport Burgio was fanatical about.

Burgio's life had been spinning out of control. He was the target of Ted Merritt's federal criminal investigation into the Mike c.o.x beating. He was facing trial in December when c.o.x's own civil rights case against him, Dave Williams, Ian Daley, and Kenny Conley was scheduled to begin in federal court. And just the past June, he had been accused again of police brutality. It had happened at Nancy Whiskey's after the two o'clock closing, when a firm hand was often needed to clear out the barflies. Burgio had gone inside to a.s.sist two bouncers remove a recalcitrant patron. The guy agreed to leave, but said in a minute. Moving with hurricane force, Burgio grabbed him by the arms, twisted them behind his back, and pushed him out the front door.

To Burgio, the moment itself was unremarkable. But a letter followed and, with it, the reason that the incident had stayed with him. The man's lawyer wrote Police Commissioner Paul Evans to say they were going to sue Burgio, the police department, and the city. The patron alleged Burgio slammed his head into the door, punched him until he was bloodied and unconscious, and then threw him outside onto the sidewalk. "It is my client's position that Officer James Burgio used excessive force," the letter said, "and that the Boston Police Department and Mayor Menino was negligent in the supervision, discipline, control and training of its officers."

Like Jimmy Burgio needed another headache. The city eventually paid the man $86,250 to settle his claim, but Burgio, as always, denied any wrongdoing; he was just doing his job to keep the city safe.

Burgio was seated outside Nancy Whiskey's-near closing time, again-when a car drove up and parked, and a bunch of people climbed out, including Kenny Conley.

Kenny spotted Burgio right away. His friends did too.

"There's Jimmy," one cautioned. "You want to go in there?"