The Fence Part 16

"Could you point him out, please?" Roach said.

"Sure. He's the gentleman in the front row, the third aisle over."

Williams sat expressionless, his tall, muscular frame folded into the bench.

Roach was finished but Mike was not; he stayed put to be cross-examined by the lawyers for Williams, Burgio, and Daley. One by one they attacked his memory, saying it was unreliable due to his extensive injuries. They noted that from the beginning Mike had always said he chased not one but two suspects toward the fence-a memory everyone knew was incorrect and which, they argued, made all of Mike's testimony doubtful. But Mike's response was disarming; he didn't claim to have perfect memory of Woodruff Way. "That's what I recall," he said. "Now, if I'm mistaken, I don't know." In a way, admitting he could be wrong about some things made him more believable, not less.

Trying to impeach Mike through his memory was their best hope. They asked Mike about a prior occasion when he was mistaken by other officers as a suspect. Hadn't Mike been grabbed by a cop and then another yelled, "Stop, he's a cop"? Wasn't Mike conflating that incident with the pummeling at Woodruff Way? Wasn't Mike mistaken about saying he heard Dave Williams yelling that command during his beating?

Tom Hoopes went last, and he sought aggressively to hit Mike hard on two points he'd raised during his opening. But Hoopes ran into a roadblock as soon as he suggested Mike was partly responsible for the night's tragic outcome once he and Craig took over the lead position in their unmarked cruiser. The judge quickly interrupted the lawyer's revival of the cowboy theme.

"This is an incredible reach," Young said. He accused Hoopes of "wandering around as to whether someone violated departmental policy." Even if the rule was broken, a victim of police brutality "still has his const.i.tutional rights." It simply had no relevance in the case, the judge warned Hoopes.

Hoopes simply switched to the other point of attack-greed.

"Sir," he asked Mike, "would it be fair to say that you and your wife have a debt of about $200,000 from her medical school bills; is that right?"

Roach and Sinsheimer jumped to their feet to object.

They didn't have to. The judge tossed a pencil into the air. Everyone watched the writing instrument bounce across the bench. Young summoned the attorneys to his sidebar. Mike watched from the witness stand. He was exhausted but had weathered the effort to break him down.

When the huddle broke, the judge turned to face the jury. "We're trying a straightforward matter here, a matter worthy of trial," he said. "But this reference to greed and reference to other motivations for bringing a lawsuit is improper. And I have instructed counsel that it's improper." The lawyers had been slapped around, hardly the kind of last word any defense would wish for during a key cross-examination.

Mike's lawyers now went about trying to circle in on Williams, Burgio, and Daley. Joe Teahan and Gary Ryan testified about discovering Mike alone on the ground, battered and bleeding. No one else was around, and Teahan said only four or five Boston police cruisers were already there.

"No more than that?" Sinsheimer asked.

Drechsler objected immediately, and the judge, agreeing, told Sinsheimer, "Do not lead the witness." But Sinsheimer had made his point. Teahan's testimony planted firmly the idea that the dead end was the "closed container."

Then they called the only witness who provided testimony directly implicating any of the accused. "I seen a black officer hit him over the back of the head with the flashlight," s.m.u.t Brown said to open his account of the scrum of officers beating a man he thought was one of his pals, rather than Mike c.o.x. Sinsheimer asked whether he saw that officer today. s.m.u.t surveyed the crowded gallery looking for Williams, who'd moved back from the first row where he'd sat during Mike's testimony.

But s.m.u.t found him. "The guy in the green suit back there," he said.

The case was moving along as planned, but Sinsheimer and Roach were in for an unexpected comeuppance. Roach wanted Craig Jones to testify about the comment Dave Williams made back at the Roxbury station after the beating: "I think my partner hit your partner." Defense lawyers objected, saying having Craig quote Williams was inadmissible hearsay, a legal rule of evidence that generally bars the admission of out-of-court statements made by others. The judge decided he would allow the comment in as an exception to the hearsay rule. But he warned that Roach was at risk of causing a mistrial if he was unable to prove Williams was part of a cover-up by combining this comment with other evidence. "If I let this in and when all the dust settles I don't think it was in furtherance of a conspiracy, this is a mistrial as to Burgio, and maybe as to others.

"Now, do you want it?"

Minutes later, when Roach resumed questioning Craig Jones, he never asked what Dave Williams had told him during a private moment at the station. Mike's lawyers had, in effect, blinked, hoping the rest of their case was enough for the jury to get Burgio.

The jury never heard one of most powerful pieces of evidence.

Jurors were developing a bad feeling about Boston cops, however.

Burgio's longtime partner, Leonard Lilly, for one, left them scratching their heads in wonder when he testified he had no recall of anything Burgio said after the beating. Lilly had driven to Woodruff Way to pick up his pal for a ride back to the station.

"Why did Burgio need a ride?" Sinsheimer asked.

"I don't recall, sir," Lilly said.

"Didn't come up at all?" Sinsheimer asked.

"I didn't say that. I said I don't recall."

"Well," Sinsheimer remarked. His voice turned sarcastic, wanting to draw the jury's attention to the witness's implausible memory failure. "Tell us everything you recall about your conversation with Burgio."

"I don't recall any conversation."

Following Lilly, Sergeant Detective Dan Dovidio surprised jurors with his story of driving to the dead end after the beating and seeing only Williams and Burgio.

"Who, if anyone else, was there?" Sinsheimer asked.

"No one," the patrol supervisor said, even though the jury had already learned that after the beating the dead end was filled with cruisers and cops. Dovidio explained the reason he was summoned was that the cruiser operated by one of his charges, Dave Williams, had been damaged, and he was required to inspect it.

"Take your time," instructed Sinsheimer, "and tell the ladies and gentlemen what you did to inspect the vehicle because of the damage."

"I looked at the damage that I could visibly see, and what Officer Williams described to me as to how it happened."

"What did Officer Williams describe for you?"

"I think he said he hit a patch of ice and he skidded," Dovidio said. "Hit the steel post that was in front of the vehicle, and that he had collided with the Lexus."

"He didn't say, Gee, Sarge, you ought to take a look at all the blood on the back of my cruiser?"

"No. No."

"That didn't come up at all?"

The wiry and gray-haired veteran eyed Sinsheimer from behind tinted gla.s.ses.

"Nope," he said.

"How about the fact that Michael c.o.x was injured behind that cruiser, bleeding on the trunk, bleeding from his face, bleeding on the ground; did that come up?"

"No, it did not."

Juror Sharon Schwartz was angered, thinking, "He's so full of s.h.i.t." In their minds jurors could juxtapose the sergeant's words with a photograph-blown up to poster size-showing swirls of Mike's blood on the trunk. It resembled a painting done by a child. The suburban homemaker was further disgusted to learn about the commendation Dovidio wrote a few days later for Williams and Burgio, an honor that was still part of their personnel records.

"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 c.o.x 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 Walaik.u.m's, and, second, as far as Kenny knew, s.m.u.t 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 s.m.u.t, 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 s.m.u.t. "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 "a.s.sisted" units from Roxbury and Mattapan. "Because we a.s.sisted 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 cla.s.smate 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-munic.i.p.al 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 circ.u.mstantial 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 a.s.sault. "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 s.m.u.t Brown. "Okay, Mr. Brown. We know your pedigree." The lawyer recounted s.m.u.t's lengthy criminal record. "Yeah, people can change," O'Connell said, "but this leopard didn't change his spots by any stretch." s.m.u.t, he noted, had several pending drug-dealing cases to contend with after this trial ended, and that was s.m.u.t'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 a.s.sistance."

s.m.u.t was damaged goods, he said, a liar. "This is the person they offer to you to believe, when he says David Williams. .h.i.t Michael c.o.x. I suggest to you it's entirely unworthy of belief." It wasn't even a close call choosing between Dave Williams or Mike c.o.x's circ.u.mstantial case featuring s.m.u.t 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 c.o.x."

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 circ.u.mstantial evidence, combined with Mike's testimony that a white cop kicked him, pointed to Burgio, while the same evidence, combined with s.m.u.t 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 s.m.u.t 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 c.o.x 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.