The Fence: A Police Cover-Up Along Boston's Racial Divide (41 page)

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, Smut 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. Smut 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, associated 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 Smut 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. Smut saw the encounter as a teaching moment—about respect—but it wasn’t long before the street talk turned into a street fight. Smut 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,” Smut said. The man was pointing the gun at Smut 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 Smut 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.”

Smut was hit 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 Cox 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 Smut’s availability for the upcoming civil rights trial.

Smut 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.” Smut 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.

The next month, Smut was shooting pool in a hall in Dorchester when he ran into Craig Jones and Mike Cox. The two were apparently checking up on Smut’s recovery as part of their own trial preparation. Craig, Smut said, “was like asking, ‘Yo, you know, you gonna come to the civil trial ’cause he, you know, he needs you.’”

From Smut’s point of view, he’d gotten nothing but trouble for testifying. The Conley trial had left him confused, the way his testimony was twisted, but the big picture wasn’t his concern; to the contrary, he wanted to get in and get out. Keep it as simple as possible. He didn’t even want anyone knowing about his involvement. “I gotta live on the street,” he said, “and I don’t want people seeing me with the police and they thinking that I’m doing something that I have no business doing, and I end up getting found dead somewhere.” If not for giving his word he would have told Craig and Mike he was done with Woodruff Way. But he’d told Bob Sheketoff he would do the right thing, and he was going to finish what he’d promised. Yeah, yeah, Smut said. “I’m gonna be there.”

By the year of the trials—Kenny’s trial for perjury and Mike’s upcoming civil rights trial—the Boston media had finally ended its Big Sleep and was following the Cox scandal extensively. Columnists and editorial writers at the city’s two major newspapers, the
Boston Globe
and the
Boston Herald
, joined the news coverage with increasingly pointed commentary about the failure of Police Commissioner Evans and other law enforcement officials to break through the blue wall to bring the beaters to justice.

For his part, Evans demonstrated a keen interest in public opinion. Following a series of police screw-ups, ranging from the tragic death of the retired black minister during a mistaken drug raid to the uncovering by the
Globe
of years of corruption by two veteran officers, Walter “Mitty” Robinson and Kenny Acerra, he wrote an op-ed piece in the
Globe
heralding his new public integrity and anti-corruption initiatives. He said the inference in media coverage that his administration was not interested in rooting out wrongdoing was unfair. “This impression cannot be allowed to go unaddressed.”

Not long afterward, he went on the public relations offensive to counter the
Globe
’s ongoing investigation into Boston police misconduct. For a meeting at the newspaper’s headquarters with editors and reporters, Evans brought along data showing a statistical improvement in the department’s self-policing. “One thing I feel strongly about is that we have to clean up our own problems,” he told the roomful of journalists.

Then, in the wake of another
Globe
exposé in late 1997 about testilying, Evans joined court officials and Ralph Martin, the district attorney for Suffolk County, to announce a crackdown on police perjury that could result in botched trials, wrongful convictions, and few repercussions for officers caught lying. They unveiled a new reporting system by which judges who suspected an officer was lying would notify police and prosecutors for a follow-up inquiry. The plan seemed a step forward and made for a great sound bite. But the talk was more stunt than substance. “I honestly don’t remember anything about this,” Ralph Martin said years after the much-ballyhooed reform was first announced. It turned out the reporting system was never implemented.

By the fall of 1998, the
Globe
’s editorial writer Larry Harmon, who specialized in criminal justice matters, was leading the growing view that Evans and all the other law enforcement agencies had mucked up the Cox case—a tragic comedy of errors and lack of will that hit a new low with the criminal conviction of Kenny Conley. “The US attorney is supposed to squeeze witnesses and send tough messages about the fate of any officer who commits perjury or tries to cover up knowledge of a crime. But he is supposed to squeeze the right people,” read the
Globe
editorial of October 10, 1998.

Then came the dart aimed at the police commissioner. “While Conley readies for prison, at least three Boston police officers who likely have greater knowledge of the case—James Burgio, David Williams and Ian Daley—remain on the job.”

The
Herald
columnist Peter Gelzinis was also unimpressed with the department’s track record regarding Cox and Conley, saying Cox had become an outcast in “a department that’s never been able to locate its moral backbone with this case.

“It is Michael Cox who gets shunned, not the officers who beat him. Not the officers who are directly responsible for stripping Kenny Conley of his career at 29.”

By the end of the month—and a few weeks before the start of Mike’s trial—Evans finally took action that most familiar with the scandal considered long overdue. Burgio, Williams, and Daley were stripped of their badges and weapons and placed on administrative leave. Evans included a fourth, Kenny’s partner, Bobby Dwan, a bewildering move that left Bobby stunned and apoplectic; in short order, he hired one the city’s best lawyers to fight back.

Evans’s announcement made front-page news. But the commissioner was noticeably circumspect when asked why now? Why did he wait nearly four years after the beating to put the officers on paid administrative leave now?

“It’s a combination of a lot of things, a lot of information, all coming together, pieces from different investigations,” he told reporters. The implication was that new information combined with a dogged determination had created a critical mass requiring action. But no amount of spin could quell the notion the announcement was window dressing, a public relations move just before a trial where the department itself had been accused of engaging in a “pattern of indifference” to excessive force and the cover-ups that followed. In fact, in terms of the actual evidence, nothing of substance had changed or improved since Bob Peabody’s probe had ground to a halt two years earlier. The truth was Evans could have taken the officers off the street a long time ago.

Mike Cox certainly saw the action that way—as a stunt. “I was pretty infuriated,” he said. “It seems hypocritical to do this on the eve of a civil trial. It’s another move on their behalf to spin the best light they could.” His attorneys were angered as well, but Rob Sinsheimer saw Evans’s announcement as a “crack in their armor.” The timing, he said, looked so bad. “It made them look like they were panicking, and it emboldened us.”

Settlement discussions are part of any lawsuit, and during Thanksgiving week the pace of the talks picked up. Sessions were held in the jury room of Courtroom 18, where the trial was scheduled to start in early December. The presiding judge, William G. Young, attended, urging the parties to find a common ground. He sat at the conference table across from Mike Cox, and, while lawyers did most of the talking, the veteran jurist couldn’t help but notice Mike’s “quiet dignity.” Sinsheimer was always agitating the city’s attorneys with his nickname for the lawsuit: “Boston’s Rodney King case.” From the judge’s perspective, the city was offering relatively substantial money—a figure the newspapers put at $300,000. But there was a sense in the room that for Mike Cox it was the principle that was at stake, not financial compensation. The talks never came close to reaching a settlement—an impasse that seemed further proof of Mike’s feeling about justice and accountability.

The next day, the day before Thanksgiving, the judge issued a series of rulings setting the stage for the trial to finally begin. He cleaned up the case a bit, dismissing parts of Mike’s lawsuit, such as the claim that Police Commissioner Evans was personally responsible for violating Mike’s rights, as well as the charge the city had failed to provide him with medical care. But he rejected the police department’s bid to have the entire case against it thrown out. “The motion of the city for summary judgment is denied,” he said. “It’s denied as to their liability for failure to train, for failure to supervise, and failure to discipline. All of those matters warrant a jury trial and a jury trial will take place.” He also ruled Mike’s civil rights were, without question, violated by officers who beat and abandoned him. “I have a number of Boston police officers beating a suspect, then abandoning him in the dirt after discovering he was a police officer.” The fundamental question facing the jury, then, was whether the officers, the police department, and the city were liable for those violations of Mike’s civil rights.

Citing reasons of fairness, the judge announced he was going to split the case into several jury trials: the first would be against the four officers, the second against the city, and a third, if necessary, to assess damages. “We cannot try the individual defendants along with the city,” the judge said. “We cannot do it because evidence properly admitted against the city is so prejudicial to the individual defendants.”

The judge then further refined the first trial in response to Willie Davis’s concern that evidence against the three accused in the beating would spill over in a detrimental way against Kenny. The solution, the judge said, was to have Mike’s lawyers first introduce evidence against Burgio, Williams, and Daley and then offer evidence against Kenny. Davis and his cocounsel, Fran Robinson, would have preferred a separate trial, but the judge’s ruling didn’t seem so bad. It meant the judge would frequently be instructing the jury that a witness’s testimony was not evidence against Kenny but against the other three—a distinction, said Fran Robinson, that might come across as a signal from the judge that Kenny was not one of the bad guys.

The session ended with some housekeeping. “I sit nine to one,” the judge told the lawyers. “There’s a reason for that.” He didn’t want to waste the jury’s time with drawn-out legal haggling about the admissibility of evidence or other legal concerns that inevitably arise during a trial. “We’ll talk about those things in the afternoon,” he explained. Moreover, the afternoons would provide the lawyers time to catch their breath.

With that, the civil rights action, now regarded as one of the biggest in the history of the Boston Police Department, was ready: Jury selection was slated for December 7. Mike’s lawyers were at once confident and anxious. Sinsheimer, for his part, was eager to finally get going, believing opposing counsel for the cops and the city had underestimated them. Up against a Goliath, he thought he and Roach “made a great team. Steve was the best thing that ever happened to Mike Cox because of his attention to detail.”

What had begun one night at a fence on a dead-end street had grown into a major crisis for the police department, its commissioner, the city, and its mayor. The case had forced Boston to examine its police culture and racism. Would there be justice for Mike Cox? For Kenny Conley? For a city that, with its nasty racial legacy, was heading into a new century? Mike Cox was certainly tired of waiting. He’d realized long ago he could not depend on the police department for the truth. He was on his own, and he was ready. The trial, he said, “is the only forum I have to try to get the truth out.”