The Fence: A Police Cover-Up Along Boston's Racial Divide (43 page)

There was no looking back at this point. Sinsheimer believed, of course, the case was winnable, but not easily. The game plan, as Roach had told jurors, was a process of elimination, and the immediate need now that opening arguments were completed was to give the jury a powerful dose of the harm done to Mike Cox.

They called as their first witness Donald Caisey of the gang unit. The idea was to call a cop whose testimony would be brief and set the scene at Woodruff Way. Caisey filled that role. He testified about arriving at the dead end after the beating and coming upon Mike, seeing all the blood, and thinking Mike had been shot. “My experience with the injuries that he had is very similar to someone being shot in the head. Someone shot in the facial area where blood comes out of every hole or area in the face.”

The stage was now set for Mike. With Kimberly in the gallery watching, Mike strode to the witness stand and was sworn in. His voice was soft, and the reporters, knowing this was a key trial moment, shifted in their seats to hear.

“Mr. Cox,” the judge said, “could you pull your chair in a little bit?” It would not be the last time the judge would have to instruct quiet Mike Cox to speak louder into the microphone.

“Would you state your name, please, for the jury?” Roach asked.

“My name is Michael Anthony Cox.”

Moments before starting, the judge seemed to have rattled Steve Roach by refusing his request for a brief recess. It would have been a chance for Roach to collect his thoughts, but now he had to hurry and jump right in. The rushed start seemed to show during Roach’s initial handful of biographical questions.

“Where do you live?” Roach asked Mike.

“I live in Dorchester, Massachusetts.”

Seconds later, Roach asked again, “And do you reside in Boston?”

“Yes.”

“Which part?”

“Dorchester.”

Roach led Mike through a courtroom rendition of
This is Your Life
. Following his lawyer’s lead, Mike described growing up, his family, his marriage, becoming a police officer, and working with Craig Jones in the gang unit. After a while the judge grew restless with all the background. “Let’s get to this case, Mr. Roach.”

Roach followed suit. “Directing your attention to January 25, 1995.”

For the next hour Mike held the courtroom transfixed with a narrative that began with an urgent call that a fellow officer had been shot at Walaikum’s. Mike explained how he and Craig became the lead car at an intersection when the Lexus raced downhill and almost ran into their cruiser. He described the street clothes he wore that night, and, when Roach approached him with the long black parka, he stood to examine it. The jacket was admitted into evidence as Exhibit 15. He remained standing and, using a pointer, identified on the aerial blow-up of Woodruff Way the location of the Lexus and police vehicles. He stood again a few minutes later to demonstrate to the jury how he’d run to the fence after a suspect, “and I reached up like this to grab both of his arms.”

Mike then described the first blow, and how, when he turned to see who’d hit him, he was hit hard again. That’s when Mike’s voice cracked. Tears welled in his eyes, which he wiped away. He fought the emotions, not wanting to lose control completely.

“Where on your head?” Roach asked.

“In the front of my head.”

“Can you point to the jury where you believe you were struck?”

Mike pointed to his forehead. “It’s about a two-inch scar up there.”

Mike was next on the ground on all fours. He looked up. “I could see there was a person standing in front of me who had on boots.” The man was dressed in a dark-colored uniform, “and he was white. And as I started to look up, that person kicked me directly in the mouth.” The beating just kept coming, and he never saw his assailants’ faces. Then he heard someone yell, “Stop, stop, he’s a cop,” and the blows stopped.

Roach asked Mike if he recognized the voice yelling stop.

“It was Dave Williams.”

The testimony had momentum—vivid, horrific, and with few objections from the defense lawyers to offset the flow. The judge was the one who broke the spell after Mike mentioned Williams. “Is this a good place to stop?” he asked Roach. “It’s one o’clock.”

But Roach was feeling sure-footed now. He didn’t want the day to end just yet, not before getting to the gore. “Just a couple of more, your honor?”

“Go ahead.”

“Did you notice whether you had any blood on you?” Roach asked.

“I just knew I was bleeding from all over.”

“Can you describe where all over?”

“Bleeding from my nose, my mouth,” Mike said. “I don’t recall being able to see too well, you know, from my head I knew I was bleeding from all over.”

The jury would be heading home, tasting blood.

“Your honor,” Roach said, “if you wish, we can stop at this time.”

Juror Sharon Schwartz, the suburban homemaker, was moved by Mike’s testimony. “His injuries were grotesque,” she said. Bob McDonough sat there thinking “he was very believable.” The engineer Carol Goslant thought Mike was a “strong witness in that I believed him; he’d been through a terrible ordeal.” The next day’s
Boston Globe
story read: “Cox wiped away tears as he softly recounted for a federal jury how he went from officer to suspect to brutalized victim in a matter of minutes.”

While nationally Americans were closely following calls for President Clinton’s impeachment for his scandalous relations with White House intern Monica Lewinsky, and while Bostonians were trying to keep up with a number of pressing local matters, from worry that their football team, the New England Patriots, might move to Connecticut, to concern about the sorry performance of public school students on the new statewide standardized tests measuring expertise in English, math, and science, Judge Young’s Courtroom 18 became a world unto itself focused on Mike’s case for justice.

The skies outside were overcast when Mike returned Wednesday morning to finish sharing his memories of the attack. In particular, he recalled for the jurors the moment Ian Daley tried to arrest him at gunpoint and then, once Daley realized he was a cop, muttered, “Oh shit, Oh my God.” Mike remembered later being in the hospital when Dave Williams blurted, “‘I think,’ you know, ‘cops might have done this.’”

Guided by Roach, Mike explained how memories slowly returned as the weeks and months passed; for example, he recalled Dave Williams had yelled, “Stop, stop, he’s a cop,” after running into Williams at a funeral that summer. Roach finished by asking whether he saw Williams sitting in the courtroom. Mike replied he did.

“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 constitutional 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,” Smut Brown said to open his account of the scrum of officers beating a man he thought was one of his pals, rather than Mike Cox. Sinsheimer asked whether he saw that officer today. Smut surveyed the crowded gallery looking for Williams, who’d moved back from the first row where he’d sat during Mike’s testimony.

But Smut 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 glasses.

“Nope,” he said.

“How about the fact that Michael Cox 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 shit.” 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.