The Fence: A Police Cover-Up Along Boston's Racial Divide (39 page)

“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 Cox,” he said. “But Conley is just a pawn 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 Cox,” 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 Cox beating. Merritt’s criminal investigation, though still ongoing, became stymied and stuck in the morass of the fallout over Conley’s conviction. Instead of opening doors, the Conley matter became a bitter and paralyzing distraction.

Three years had passed 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 Cox was left to find his own justice. His was the last case standing.

CHAPTER 17

On His Own

T
hree 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 Cox beating. He was facing trial in December when Cox’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 assist 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?”

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 Cox 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. “Fuck 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 fucking coward.”

“Is this where you want this to go?” Burgio said.

Kenny did. “You pussy,” 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 fucking 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 shit.”

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 Cox. 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 Cox’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 Cox 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 class. Sinsheimer then worked as an assistant 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 Cox 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 Cox case, then, was “right up my alley,” Sinsheimer said later.

Trial preparations were growing increasingly intense during 1998, a hectic pace of analyzing 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 Smut Brown testified that Dave Williams hit Mike at the fence. “Brown gave up Dave Williams,” Sinsheimer said, “and actually hearing Brown say Williams hit 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. Cox 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. Cox 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 repetitive.”

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.