The Fence Part 14

The group had come from a fund-raiser for the Special Olympics at a union hall in Southie. No one had known Burgio was working the door. Kenny had what he called a "package on," meaning, "I was drinking." Since his sentencing, he'd been drinking hard-too hard.

Maybe they should go somewhere else, another friend suggested.

Kenny looked at Burgio dressed in his uniform-a reminder that throughout the c.o.x investigation, Burgio had stayed on the street, a full-fledged member of the police department. Kenny lost his badge the year before on the day he was indicted.

Kenny pushed the car door open. He'd made up his mind. "f.u.c.k him. I'm not letting him keep me out of a place where I live."

He walked past Burgio and into the bar. He and his friends ordered a round, but Kenny didn't have much to say. Unless things changed, he was going to prison. In court earlier in the week, Ted Merritt had sought a sentence of forty-six months, a year longer than the thirty-four months the judge ended up imposing. Even with the lesser amount of time, his lawyer, Willie Davis, was demonstrably upset; by comparison, he noted that Stacey Koons, one of the L.A. cops caught on videotape beating Rodney King, had received a thirty-month term. "Tell me that's justice," Davis had told reporters while shaking his head. Kenny's twin sister, Kris, was hurrying her wedding plans to make certain Kenny could attend. Kenny might have been out on bail and appealing his conviction, but he had nightmares about being scooped up off the street and taken away to prison.

He stood inside the bar thinking about Burgio. "He's sitting there working like nothing's going on, nothing's happened. Three days prior I had just been sentenced to thirty-four months for something I had nothing to do with." It was starting to drive him a little crazy. He and his friends drank a few beers, and then it was time to go.

Outside, Kenny looked over and saw Burgio talking to someone from the neighborhood. Kenny said nothing and headed up the street. He and his friends were nearing the car when he suddenly turned around. "Something came over me that I wanted to go over and confront him." It was the toxic blend of his thoughts, the drinking, and "all the frustration built up." He'd snapped.

Burgio saw him coming. "Kenny, how you doing?"

"How am I doing?" Kenny asked rhetorically. "I'm not doing too well, Jimmy. I'm going to jail for thirty-four months because you're a f.u.c.king coward."

"Is this where you want this to go?" Burgio said.

Kenny did. "You p.u.s.s.y," he yelled. "You should get up and speak like a man and stop hiding behind things."

"You don't know what you're talking about." Burgio's voice was expressionless.

"I don't know what I'm f.u.c.king talking about?"

Kenny was drunk and yelling. Burgio was sober and calculating.

"Go home before I P-C you." Burgio warned. He knew that threatening to place Kenny in protective custody would stoke him further.

Kenny yelled wildly at Burgio, readying for a fight. By now his friends were surrounding him and pulling him away.

"You wouldn't want to do this when I'm in uniform," Burgio taunted.

Kenny said any time, any place.

"I'm off in twenty minutes. Pick a spot."

Kenny's friends hauled him away to the car, with Kenny yelling. "I'm going to jail for you, you piece of s.h.i.t."

Burgio watched as the car drove off. He considered Kenny Conley all talk. When Burgio finished work at the bar, he saw no sign of Kenny or his friends. "Nothing happened." Smugly, he added, "He wouldn't want to fight me."

Kenny's friends had taken him home. By the next morning, Kenny was disgusted with himself for trading insults like a school-yard thug. The one thing-Burgio never once denied the accusations about c.o.x. He never said, "I didn't do it." Instead, it was cryptic macho-posturing: "You don't know what you're talking about." Words that meant nothing.

In a weird way, Kenny was truly looking forward to c.o.x's trial; he was going to testify-finally tell his story. That was going to be a huge relief.

Maybe, then, Burgio would finally get his due.

Mike c.o.x was doing his best to make that happen, working with his attorneys to gear up for the civil rights trial. His lawyer Steve Roach had early on asked another Boston lawyer with extensive trial experience to join the case. Robert S. Sinsheimer was, in many respects, Roach's mirror image: intense-to the point of seeming hyperactive-indefatigable, and physically unimposing. Slight in build, Sinsheimer topped out at five-five, and Roach wasn't much taller. The Brooklyn-born lawyer had grown up north of Boston and then attended Dartmouth College, majoring in government and graduating in 1975. He went directly to law school, attending Suffolk University Law School in Boston, where during his last year he was on the winning moot court team. Upon graduation in June 1979, he taught legal writing at Suffolk for two years, which was when he met Steve Roach, a student in his legal writing cla.s.s. Sinsheimer then worked as an a.s.sistant district attorney in Plymouth County, gaining his sea legs in the courtroom, and beginning in 1983, he started out in private practice specializing in criminal defense work.

Sinsheimer had far more trial experience than Roach, but that wasn't his sole appeal; he'd had a taste of what it was like to take on the Boston Police Department. In the early 1990s, he'd represented a man falsely accused in the murder of a drug dealer in Dorchester. During the trial, Sinsheimer shredded the credibility of the police investigation, and the jury quickly acquitted his client, deliberating for less than two hours. Sinsheimer afterward filed a civil rights lawsuit against the department. While accepting Roach's offer to help out in the c.o.x case, Sinsheimer was busy representing another man wrongfully convicted of attempted murder. He uncovered that police perjury-or testilying-had helped convict his client. By late 1997 he succeeded in getting the conviction thrown out. In his ruling, the judge condemned the police investigation, calling sworn testimony by officers "a fraud upon the court" and a "disgraceful episode."

The c.o.x case, then, was "right up my alley," Sinsheimer said later.

Trial preparations were growing increasingly intense during 1998, a hectic pace of a.n.a.lyzing police records, deconstructing the failed internal police investigations, and taking depositions from up to twenty police officers and officials. Sinsheimer and Roach sat through most of Ted Merritt's successful prosecution of Kenny Conley in June, looking for pointers on a plotline for their own civil rights case. They came away with an unexpected bonus when s.m.u.t Brown testified that Dave Williams. .h.i.t Mike at the fence. "Brown gave up Dave Williams," Sinsheimer said, "and actually hearing Brown say Williams. .h.i.t Mike was new." It was a eureka moment of sorts, and the lawyers knew they were going to call Brown to the stand in the civil rights case to do a replay of his testimony from the Conley trial.

Sinsheimer thought another eureka moment came when a top police official filed a sworn affidavit openly acknowledging the department's blue wall of silence. "Officers are reluctant to break the 'code of silence' and to testify against their colleagues," Ann Marie Doherty, chief of the Bureau of Internal Investigations, had written as part of her explanation for why departmental probes into the beating had failed. During three days of deposition in June 1998, Sinsheimer could tell Doherty wished she could take back the affidavit that helped Mike's effort to expose a police culture of lying. "It was an admission that would cost the department," he said. By then, too, Doherty was gone, transferred by Police Commissioner Evans to a new post overseeing the police academy. To succeed her, Evans chose Jim Hussey, who'd handled the Internal Affairs inquiry into the beating.

The taking of depositions was exhausting. Tempers flared. Over the summer, Mike sat through six grueling days of often pointed questioning from attorneys representing the officers, the police department, and the city-and on the seventh day he'd had enough.

"The record should reflect," said Tom Drechsler, Burgio's attorney, "that Mr. c.o.x has just left the room without asking for a recess and he has gotten up and left in the middle of a question."

Steve Roach quickly came to his client's defense: What do you expect? "You're browbeating him," he said. "Mr. c.o.x was visibly upset and he left the room to take a break."

Drechsler and the others denied any such thing; countering, they accused Roach of using hand signals to coach Mike on how to respond to their questions. "It's prompting his client," Drechsler complained. "It's inappropriate. The record doesn't reflect the gestures."

Roach wouldn't give an inch. "Questions in the now seventh day of this deposition have been abusive," he charged. "They have been repet.i.tive."

The gloves were off. Each side got nasty. "Oh, please," Drechsler said, fed up with what he considered Roach's persistent interference. He called Roach's conduct "highly unprofessional and highly inappropriate."

"You have a very suspicious and paranoid mind, Tom," Roach said.

"Well, excuse me, but I don't need personal insults and criticisms from you."

"Well," said Roach, "that's what you're doing to me."

Drechsler admonished Roach. "Don't use words like 'paranoid' and things like that unless you're a qualified psychologist and you're prepared to testify on the record. That's a personal insult. I'm not getting personal with you and I'd appreciate and expect for you to refrain from personal insults, okay?"

But the fireworks did not let up. For the remainder of Mike's final day of deposition, Roach stood guard, constantly interrupting and challenging his opponents in a bid to block and parry a beating by words from the phalanx of attorneys.

The opposing lawyers were not impressed with Roach's lawyering. They seemed to consider Roach out of his league. "We'll take your lessons on trial practice another day," one smartly told him.

Indeed they would-come December with the start of Mike's case.

Mike c.o.x had never thought much of the diagnosis made soon after his beating that he suffered from post-traumatic stress disorder (PTSD). He didn't much believe in psychiatry, and, to him, the best therapy would be winning his federal civil rights case. Even so, his lawyer Steve Roach took him to a second psychiatrist for another opinion-both for Mike's own well-being and for the purposes of the lawsuit. Roach personally drove Mike twice to the doctor's office in the bedroom community of Chelmsford, thirty miles north of Boston. Mike and the Harvard-trained forensic psychiatrist spoke privately while Roach waited outside. The doctor also met with Mike and Kimberly together.

The psychiatrist found Mike friendly and cooperative, but a bit guarded. He a.s.sessed Mike's intelligence in the "superior range," with no indication of delusions, hallucinations, obsessions, or compulsions. "His insight is limited, however," wrote Dr. Ronald P. Winfield in a report prepared in May 1997, "in that he continued to feel and to state that he did not believe that he had a psychiatric disorder."

Mike's views notwithstanding, Winfield affirmed the earlier diagnosis for PTSD, a disorder he determined was "directly due to the beating which he suffered at the hands of fellow Boston Police Officers." Observing that Mike's symptoms had persisted in the several years since the beating, Winfield said his condition was "chronic."

Of particular interest, the psychiatrist found that Mike's "pre-existing psychological makeup made him particularly vulnerable." He cited a study showing that Vietnam War veterans who'd been gung-ho about the war prior to combat were more susceptible to developing PTSD. "The destruction of one's beliefs is an intensely painful emotional blow," the psychiatrist noted.

Winfield then compared that dynamic to Mike's experience. Before he was beaten, "Michael c.o.x believed in the American Dream; he believed in the goal of a color-blind society. Michael's personal and professional demeanor reflected these values, and he incorporated them into his life: He sought success through education, perseverance, and hard work."

The pummeling at the fence-and his abandonment by fellow police officers-had changed all that. "To him, it was a violation and a repudiation of the Dream by which he had directed his life.

"Like Vietnam Vets, Michael was exposed to a trauma that at once endangered his life and undermined his beliefs."

The psychiatrist also minced no words in emphasizing the singular power race played in his a.s.sault. Trauma, explained Winfield, was defined clinically as the experience of being made into an object. While a beating of this sort would be difficult for anyone to process, "objectification has a special depth of meaning, and emotional resonance for black Americans." During two centuries of slavery, the psychiatrist noted, blacks were considered objects, "chattel; i.e., an item of property."

For Mike, concluded Winfield, the trauma as a black man "being made into an object" was therefore "especially intense, destructive and psychologically malignant: psychological ghosts of night riders, lynchings and Jim Crow were resurrected."

During the evening after Kenny Conley's conviction in June, the crank calls resumed at the c.o.x household. "You're an a.s.shole," a voice told Mike. Mike hung up. Later in the night the phone rang again, but Mike hung up as soon he recognized the gravelly voice. It made him furious that even though he was the one who'd been beaten, somehow, in the perverted logic of the cop culture, he still was the wrongdoer for pushing for justice. Now a cop had been convicted of perjury and it was supposed to be his fault.

He didn't know Kenny Conley, but he resented the support Conley was getting, whether nefariously-as with the crank calls-or above board: the fund-raisers, the "Time for Kenny," and the media interest in his plight. No one had staged a rally or fund-raiser for him.

"The support I received has been quiet support by good friends and family, you know, a few people within the department," Mike said. "His support has been overwhelming."

In truth, some of the reasons for the disparity were less about the men and more about their neighborhoods. Roxbury was a neighborhood splintered socially and politically, while Southie's cohesiveness was legend. Roxbury had nothing matching "Southie pride." Early on, too, Mike had rejected the few overtures made by some of Roxbury's political and religious leaders; he was private by nature and wanted no part of turning the incident into a political or racial cause. Kenny Conley, meanwhile, with his friends' help, had gone public unabashedly with his insistence of innocence.

Importantly, part of Kenny's public crusade was to make clear he was no cover boy for the police cover-up. He railed against the a.s.sault and the mistreatment of Mike c.o.x-and that included hara.s.sing telephone calls, tire slashing, or any form of ostracizing Mike. Kenny couldn't control anonymous cops who mistakenly thought he was standing tall for the blue wall. What he could do was openly criticize the inability to get to the bottom of the beating. "I'd like to get across to Michael c.o.x," he told reporters, "that I had nothing to do with it and if I could have helped him I would have."

c.o.x and Conley: They'd become an odd couple. One from Roxbury, the other from Southie. Prior to January 25, 1995, they were young cops with nothing but bright futures ahead. Then they "met" at the fence on Woodruff Way chasing s.m.u.t Brown. The utter failure to solve Mike's beating had derailed both their lives: Mike was the pariah-he'd protested too much; Kenny faced thirty-four months in prison due to a misguided federal prosecution. Both outcomes resulted because the beaters and eyewitnesses went mute. c.o.x and Conley were now unlikely allies against the blue wall of silence.

It was unbelievable to Mike, the glares he'd gotten from the off-duty cops in the courtroom while he testified at Kenny Conley's trial, the cold shoulders he got when walking the halls of police headquarters. When he supervised a detail of officers working a Red Sox game at Fenway Park, he got looks from some of the cops under his command. He'd overhear bits of their m.u.f.fled talk. "He's the one," or, another time, "That's the one, c.o.x." Mike used to like doing the games; he'd work an average of about four a month. But no more. Even though the Sox, led by their ace, Pedro Martinez, opened the 1998 season on fire, going 18a8 in April, Mike quit signing up for the Fenway Park details. They made him too uncomfortable.

His wife and family wanted him to quit. One sister-in-law living in Michigan who worked at the Ford Motor Company mentioned she could help him find work with the automobile giant; a sister who worked at Gillette headquarters in South Boston said the company often hired former police officers in corporate security; the father of one of his son's teammates on a youth baseball team was a senior executive at Fidelity, and he offered to help land him a position with the financial services company. In police circles, he was approached about joining the Ma.s.sachusetts State Police or the FBI. Each time Mike said, No, thank you. His dream about police work in Boston may have been shattered, but he wasn't going to walk off the job. First, he needed the paycheck-he had three kids and a wife just starting a medical career-and while he couldn't quite explain it or say it made sense, he felt "being a police officer I'm also a lot safer."

So Mike stayed on, although his work performance was on a steady decline. He struggled to keep up with the cases a.s.signed to him in the Internal Affairs Division, and he was regularly apologizing, he said, "for lagging behind." It wasn't just the stress and distraction of the looming civil rights case; persistent headaches dogged him, and he had trouble concentrating. It seemed to take forever to write up his reports. Looking for relief, he was taking daily doses of Duradrin, a powerful prescription painkiller for migraines. By the summer, Jim Hussey, his boss, decided to lighten his workload.

When one of his mentors tried to recruit him to apply for an opening in the homicide unit-to work on a new squad looking to solve cold cases involving the street gangs-Mike said no way. The old Mike would have jumped at the choice a.s.signment, but he'd decided he couldn't work again on the frontlines. "It has to do with my ability to trust the individuals that I work with," he said. "Trusting people with my life." Too much had happened, and he avoided police officers and police talk. "I'm not the person you would want to hang out and be around if you want to improve your career."

He was looking to lower his profile, not raise it. Instead of the prestigious homicide unit, he expressed interest in an opening in an obscure, pencil-pushing unit within the IA division-the audits and review section. "They go around and do audits of the drug unit, the seized money section, the tow log," Mike said. It was the ant.i.thesis of the old Mike to prefer paper over street action. The audit section was buried inside a division that was already isolated from mainstream policing. But that was its very appeal. "It involved, I'd say, less contact with police officers and their supervisors, less people," Mike said. "More isolated." Mike was trying his best to be the invisible man.

Not all the calls to the house after the Conley conviction were hateful. Jim Hussey checked in to see how Mike was holding up. He wasn't surprised by Mike's reticence. "He's not a man of many words," Hussey said later. The two chatted, and Hussey said he wanted to resume surveillance of Mike's house for a few days. Hussey was well aware of the crank calls and other hara.s.sment, and he wanted to take "all precautions necessary, just in case there was a loose cannon out there." Hussey was hoping to make Mike and his family feel more comfortable. What did he think?

"That will help me sleep better." The line was more an attempt at dry humor than the truth. Mike never slept well. He stayed awake worrying about his family's safety.

In the more than three years since his beating, he still had not explained to his sons what happened at the fence. Police officers are "good, they're your friends," he'd always told his boys. "How do you explain to a child that you were beaten and basically left for dead by other police officers? And then other police officers witnessed it and no one has said anything.

"How can you tell a child that?"

No one knew better than Kimberly the continued toll on Mike.

"Before," she said, "he was this nice, easygoing person who enjoyed doing things with his family. You know, he would joke a lot, he had fun. We did things together.

"I'm referring to the person that he once was. I'm referring to the fun-loving person who wasn't paranoid, wasn't depressed, wasn't irritable, wasn't difficult to get along with."

Kimberly's comments came during her own deposition. The session began at 9:23 A.M. on August 6, a sunny morning with temperatures in the mid-70s, and ended six hours later. The questioning was conducted in the plush downtown offices of the private law firm hired by the city and the police department.

It marked the first time Kimberly had spoken extensively about Mike, and before the first question was asked, Steve Roach sought to a.s.sert the ground rules. Given the "abusively long deposition with her husband," Kimberly was "only going to be here one day. We feel one day is enough."

"Let's see how we do," replied the city's attorney.

Kimberly began by summarizing her upbringing in New Orleans, her meeting Mike in Atlanta, their marriage, family, and respective careers in Boston. Most of the six hours then became a chronicle of a troubled Mike c.o.x after January 25, 1995.

He was different now, she said, and seemed depressed: "Lack of appet.i.te, always feeling exhausted, wanting to sleep, not wanting to have company over. Wanting to be alone. Just not partic.i.p.ating in daily family life like he used to."

He used to coach his boys in sports, but had stopped. He used to read to them at bedtime, but now rarely did. "He was much more physical with them before," she said. "They're boys, they like to be tough, they like to wrestle, and he doesn't do that anymore."

In January they'd celebrated the birth of their first daughter, Mikaela, but, she said, "When he walks in he takes her and hugs her and kisses her, and then usually he gives her back."

It was all such a sharp contrast to the early days of their marriage, when she was commuting to Philadelphia to attend medical school and they'd not only successfully met the challenges of work and home life, but had grown closer.

Now Mike seemed only partly there. "If we're having a conversation he'll walk out of the room in the middle of the conversation. I'm talking about one thing and he'll leave that subject and go to something else, or he'll pick up the phone and he'll, you know, start dialing, calling someone on the phone and, like, Hey, we're talking."

He could be quick-tempered and unpredictable. "I hate to seem trivial, but just last night I went to the mall to buy some stockings, and that was a big deal.

"He said, Why did you need to do that? Well, I had to go get some stockings, and he had to have a fifteen-minute, you know, argument over the stockings. To me, that's crazy.

"Every little single thing, every single day." Mike was always turning off the kitchen ceiling fan with its four bright lights. "You know, we argue every day about sitting in a semi-dark house because the lights hurt his eyes."

Like Mike, she worried about their safety, but she thought Mike had become obsessed and hypervigilant. "Worrying about what time I get to work, what time I come home from work, what time the kids get home.

"He's preoccupied with making sure the doors are locked, re-checking them at night."

She certainly had her opinion about the source of her husband's struggles. "He feels abandoned, and basically there's been no real way for him to feel that he's received justice about what happened to him.

"I feel that in his mind, if someone had been identified, if there was someone who would take responsibility, you know, for their actions for what was done to him, he could at least have some of-well, there's closure to this."

The lawyer finally asked, "Do you and Michael have any plans to separate."

Kimberly had hung in there, answering the relentless questioning seeking intimate, painful details about the more than three years since Mike's beating. It was like picking at a wound over and over; she'd admitted the marriage had become tense, strained, and, at times, seemed "unbearable." But it was as if this question by the lawyer had gone too far, and her back went up.

Firmly, she replied, "No. We haven't made any plans to separate."

The lawyer and deponent then had their most curt exchange.

"You still love Michael?"

"Yes, I do."

"He loves you?"

"Yes."

The next month, during the early evening of September 14, s.m.u.t Brown had some urgent business to take care of, so he asked some pals to drive him over to Sutton Street in Mattapan. Sutton was a mostly barren one-way street about a block long. It was lined with worn triple-deckers, unkempt yards, and drug dealers. s.m.u.t knew full well about the drug activity; following his acquittal the year before in the Lyle Jackson murder trial, he'd resumed his own illicit activities, a.s.sociated with the outfit known as KOZ.

But this was not about business; it was a family matter. His mother, Mattie, was staying in a third-floor unit at 5 Sutton Street. She was with one of his big sisters and her young daughter. The previous night, his mother had awakened in the middle of the night to partying and loud music in the unit below. She had gone down and complained. One man followed her back upstairs. "He was drunk," Mattie said later. "He came into the apartment cussin', rude and disrespecting me."

When s.m.u.t learned what had happened, he got angry. When he arrived at the house, he climbed the six cement steps and confronted the man on the front porch. His mother was not there; she'd gone out shopping in Mattapan Square. s.m.u.t saw the encounter as a teaching moment-about respect-but it wasn't long before the street talk turned into a street fight. s.m.u.t was getting the better of the fistfight when he noticed the guy was carrying. They began struggling over the weapon, and it fell to the ground. "Then this guy's friend picks up the gun," s.m.u.t said. The man was pointing the gun at s.m.u.t and his friends, and "I'm freakin' out, thinking, man, now I've gotten my friends shot when this was my beef." He pushed the man he was fighting into the gunman. Then s.m.u.t ran off the porch around to the side yard littered with trash. The gunfire began.

"I got a call on my cell phone," Mattie said, "that Robert got shot."

s.m.u.t was. .h.i.t once in the back but kept running. Police and emergency medical workers found him lying in blood in the middle of Sutton Street at 7:19 P.M. He was taken to the emergency room at Boston City Hospital, where his mother joined him.

The shooting made the newspapers. "Robert Brown is the only person, other than Michael c.o.x himself, willing to come forward to testify about what happened that night and who can help us identify specific Boston police officers," Roach told a reporter from the Boston Globe. The attorney was openly worried about s.m.u.t's availability for the upcoming civil rights trial.

s.m.u.t was lucky, though. He quickly stabilized and, after five days, was released. "The only time I wasn't there," his mother said, "was when Indira was with him. I went home and changed clothes and came back. I never left him alone." s.m.u.t left the hospital with a souvenir-the bullet in his back. Doctors decided not to remove it. He left with something else too-a fondness for painkillers. He was soon a heavy user of Percocet.