Bob Peabody ran into a wall with Dave Williams. The unproductive standoff was emblematic of the overall lack of progress in his investigation. In seven months he"d put five Boston police officers and another two munic.i.p.al police officers before the grand jury for questioning. With Farrahar, he"d interviewed twenty-two police officers and munies in the offices of the Anti-Corruption Unit in Fort Point Channel. He"d worked up a theory of culpability revolving around the big three-Burgio, Williams, and Daley-with Burgio as the princ.i.p.al a.s.sailant. In his reconstruction, Burgio exited the pa.s.senger side of Williams"s cruiser to find c.o.x standing right in front of him at the fence. "My theory was he was the first at the fence and brought c.o.x down." Peabody found unofficial confirmation in Jimmy Burgio"s choice of defense counsel. Burgio showed up for his interview in July accompanied by Thomas Drechsler, one of the smartest attorneys around, who often represented police officers in trouble. "To me, that confirmed Burgio"s the guy," Peabody said. "Why else would he have the top attorney?" It was, of course, rank speculation mixed with gallows humor, but Peabody was only half joking.
In truth, Peabody had not made any real headway toward charging anyone. Burgio took the Fifth and refused to answer any questions in July. When Ian Daley showed up for his interview one overcast evening in August, his tape-recorded session lasted all of three minutes. Just long enough for Daley to give his name, rank, police ID number, and refusal to cooperate. "I respectfully decline to answer on the advice of counsel," he said, citing his const.i.tutional privileges against self-incrimination.
Then Joe Teahan and Gary Ryan invoked their rights against self-incrimination-a move that confused and surprised Peabody. He"d not suspected either in the beating-indeed, they"d attended to Mike-but once they joined Burgio and Daley as the only officers taking the Fifth, he was tantalized and began thinking they had information. "They might have heard something. I wanted to get that." He sought immunity for both-a court order protecting them from prosecution in exchange for their testimony. But once under oath, Teahan and Ryan had nothing helpful to say; they said they"d arrived after the beating. Peabody was flummoxed. "I thought, "What? We went through all this for nothing?"" He realized he should not have immunized Teahan and Ryan without a proffer-a preview of what they had. "That was just also a learning curve for me."
For all the effort, his investigation had not only failed to advance the case but it actually turned up less than Internal Affairs. Richie Walker, for one, was in full retreat. He"d told Jim Hussey he"d seen another officer running after Mike toward the fence. When Walker met with Farrahar, he described briefly seeing Mike run toward the fence, but made no mention of seeing anyone behind Mike.
With Jim Hussey, Walker had said Mike"s beating was the talk of the Roxbury station house later that night. With Farrahar, Walker flat-out denied anyone later discussed the beating. Walker was asked: "Did you have any conversation with either Officer Daley or Officer Jones or Sergeant Thomas in regards to the injuries that Michael c.o.x sustained?" "No, sir," Walker replied. "I just asked how is he doing." Peabody, unable to study any of the IA records, had no way of knowing about Walker"s about-face. Walker was like so many of the other witnesses he"d questioned; he saw nothing.
The grand jury also never heard from Bobby Dwan. Dwan told Hussey he"d seen two uniformed Boston cops, one white and one black, in a commotion by the fence. He said when he arrived he"d seen both Teahan and Ryan moving about the dead end. But Peabody and his investigators never interviewed Bobby or Kenny Conley. Both would have cooperated had they been summoned, but the summons never came. For his part, Kenny had put the contentious end to his last session with Hussey behind him. He wasn"t the sort who brooded. He"d resumed his life"s routines-his night shifts in the South End, his basketball playing. Kenny certainly heard the same rumors everyone was hearing-about Burgio and the others-but he wasn"t paying much attention. It didn"t involve him. "I pretty much forgot about it."
Somehow, Kenny and Bobby had fallen through the investigation"s crack; Peabody did not realize Kenny and Bobby were at the dead end. He was not allowed access to their interviews with Internal Affairs, and he also apparently never received their written reports. "We somehow didn"t get our hands on that," Peabody said later. The presence of Kenny and Bobby at Woodruff Way, Peabody said, "never came up."
It all meant Peabody had less to work with, and by the time of his face-off with Williams on Friday, December 1, he"d lost the zip and confidence he"d started with. Sunday evening from his home, he typed an e-mail to Ralph Martin. The session with Williams, he told his boss, was "not what I hoped for."
Peabody continued, "He stood his ground when confronted with damaging statements he supposedly made to others who have testified. He flatly denied yelling, "Stop, he"s a cop!" when c.o.x was getting hit and denied telling Craig Jones later that night, "I think my partner hit your partner.""
Williams, wrote Peabody, "said he saw and did nothing other than chase the murder suspects."
If it all sounded defeatist, Peabody wasn"t ready to fold yet. Williams, he said, was the key. "I think he saw it and has convinced himself that this is the story he is going to give, or he really didn"t see what happened, believes that his partner was probably involved and has decided to protect him as best as he can." Peabody said he had an idea. "It is time to confront Williams. Lay our cards and theories on the table and see what he says. There are sufficient contradictions now on the record to smoke him out if he"s hiding it." Peabody wanted to arrange a meeting with Williams and his attorney.
He wanted to let it all hang out. It would be a Hail Mary.
Mike jerked upright and leaned over the back of the couch. Groggy with sleep, he took a split second to get his bearings. Then he carefully pulled back the curtain to peek outside. He was convinced he"d heard something. But Supple Road was quiet. He looked up and down his street. He saw nothing, at least not what he was looking for. His unmarked police cruiser sat in front of his house, untouched.
Mike had taken to sleeping on the living room couch after finding the first tire slashed one morning when he left the house for work. "I was trying to catch them." But he hadn"t, and over the next few weeks, the other three tires were cut up. His car was clearly targeted; it was the only one on the street that was. .h.i.t. Mike was certain cops were the culprits, cops who"d adopted yet another technique to communicate what they thought of him, "that I was becoming some type, you know, of rat." In the police world, tire slashing was known to be one way cops expressed displeasure with one another.
The hara.s.sment started as officers received subpoenas in late summer to appear before Peabody"s investigative grand jury. Mike"s return to work was not going well. "I"d just walk into a room and, you know, people look at you like you"re dirt." Mike listened to some commanders rea.s.sure him his beating was unacceptable, but the talk was empty, particularly when he could just look around and see actual suspects still on the job. No one had yet been disciplined in any way, despite all the lies the investigation had already established. Some were even promoted. Sergeant Dan Dovidio, for one, rose to the rank of sergeant detective. Not only that, he was transferred to Internal Affairs. It couldn"t have gotten any more bizarre-the supervisor who"d retreated to the police station when nearly every cop on duty was racing to the shooting at Walaik.u.m"s, the supervisor who"d told Williams and Burgio at Woodruff Way to lie about riding in the same cruiser, was now seen by the commissioner as having the right stuff to uphold the department"s integrity and standards of conduct.
It was all a bit hard for Mike and Kimberly to take. "Life for me became more and more difficult," he said, "and I just didn"t understand, you know, why? What did I do to create all this hostility?" Mike had several times changed their telephone number and had it unlisted, but that didn"t matter. The crank calls continued, albeit with periodic breaks. Then one night a crew of Boston firefighters and fire trucks arrived in the middle of the night, apparently summoned by a false report that the c.o.x house was on fire.
Now there were the tires. When Mike lay back down on the couch, a video camera, pointed out of the living room window, continued making its slow, whirring sound. The camera was aimed straight at Mike"s cruiser. The car"s shadowy image was displayed on a monitor attached by cables to the camera.
Farrahar"s Anti-Corruption investigators had installed the camera. It was a primitive setup, requiring Mike to actually "do a lot of rewinding and setting up of this equipment, turning it on and off." Kimberly was unimpressed; the setup, she said, was a "joke. It"s like it was something from 1950s. The picture was so unclear, it was just basically fuzz." It seemed so ineffective. "See a picture? I mean, looking at it, I couldn"t make out much of anything; maybe shadows." Within a couple of weeks, she and Mike had had enough of the Boston Police Department"s putative high-tech capabilities. The camera was more a nuisance than anything else, and they insisted it be removed. Mike would keep trying to capture the slashers on his own.
Kimberly was put off by the whole thing. To her, the clunky surveillance equipment was a token, even patronizing response. "I didn"t think that was a serious attempt for them to find out who was doing this." In fact, it became a symbol for how the couple now viewed the overall investigation-halfhearted, bungled, and wanting.
By early fall, Mike had seen enough. He"d always believed in the system, but he now reached the conclusion the system had fallen short. "I was failed by the police department." Just as he was on his own when it came to the tire slashers, Mike decided he was on his own in the search for justice. "I had to do something," he said, "regardless of what the DA"s office or the police department was going to do." The continual hara.s.sment, rather than a deterrent, had become a prod. "I decided, along with my family, that I needed to find out, you know, who was involved, who did this." Mike realized he was going to have to take matters into his own hands.
He hired Steve Roach and began meeting regularly with the attorney. Then, in late fall, as Bob Peabody was unsuccessfully pushing Dave Williams to come clean, and six days after Bill Bratton"s appearance at Harvard Law School, Mike sued. He sued his fellow cops, his police department, and his city. He said his civil rights were violated when Boston police officers repeatedly beat and kicked him until he blacked out. He charged that David C. Williams and Ian A. Daley witnessed the attack, did nothing to stop it, and then left him injured and unattended on the street. He took on the police culture of silence and said the two officers joined others in a cover-up and failed to report the a.s.sailants. And Mike took on the Boston Police Department. The department, he said, "fails to investigate allegations of misconduct by police officers, fails to properly supervise police officers and fails to properly train police officers and their supervisors after having prior knowledge of multiple incidents of misconduct, especially against young black male suspects, other powerless citizens and plainclothes officers."
Mike was in metamorphosis-moving from cooperating victim in others" investigations to aggressor in the quest to hold his a.s.sailants accountable. He"d been a punching bag that night at the fence, and he"d felt like one ever since. It was now about "my self-esteem" and "my family." He could no longer be a bystander.
"It was humiliating what happened to me," he said. "There"s no reason to treat anyone like that. And then to just leave them. And if they do it to me-another police officer-would they do it to another person if they got away with it?
"What"s to stop them? Who"s to stop them?"
On December 31, an estimated one million revelers turned out for Boston"s First Night activities. It was the twentieth year the city hosted a long day"s celebration into the night, featuring towering ice sculptures, a parade, puppet shows, music concerts, and, at midnight, a fireworks display over Boston Harbor. For the occasion, more than two hundred Boston police officers and ninety-one police cadets were deployed to keep the city"s record of a festive and peaceful New Year"s Eve intact. "We"re going to keep this a safe and enjoyable way for people to celebrate," Mayor Menino promised beforehand.
Mike c.o.x was not feeling particularly celebratory or safe. He"d filed a federal civil rights lawsuit against his police colleagues and his department. He knew he was stepping way out of line. "I have accused them of things which I don"t necessarily know anybody else in the police department has ever done before." The claims could cost them their jobs and monetary damages, and "it could send them to jail."
Taking legal action may have brought some satisfaction, but Mike now wrestled with the fear factor. For Mike, it went like this: He"d become a troublemaker, and the quickest way for those troubles to end was "by me not being on this earth or being killed." That was the way Mike c.o.x"s year ended-believing his life was at risk. It wasn"t the unfounded fear of an outsider. Mike was one of them. He"d been a cop for six years and knew the score. He understood completely that his lawsuit meant that he was locked in combat against the police culture, and, by taking it on, he had become the enemy.
Photographic Insert THE PHOTOGRAPHS.
Mike c.o.x"s boyhood home in Roxbury at 60 Winthrop Street.
Mike c.o.x in his 1984 high school yearbook. His cla.s.smates voted him "cla.s.s flirt."
Kenny Conley in elementary school in South Boston.
s.m.u.t Brown"s mother, Mattie, and father, Robert Brown Jr.
s.m.u.t Brown in elementary school in Roxbury.
Kenny Conley celebrates his graduation from the police academy on June 19, 1991. With him are his mother, Maureen, and his father, Ken.
Besides starring on the varsity football and basketball teams, Mike c.o.x (second from left) was a resident adviser in his dormitory. Pictured with Mike is one of his best friends from high school, Vincent Johnson (third from right).
s.m.u.t Brown and a friend in the mid-1990s.
The night of the beating began with a police stakeout of Hip-Hop Night at the Cortee"s, a night spot popular with the street gangs.
The shooting of Lyle Jackson at Walaik.u.m"s at 2:00 a.m. triggered the police chase that ended in the beating of Mike c.o.x.
The damaged Lexus used by the shooting suspects to flee police at the dead end of Woodruff Way in Mattapan. The police vehicle next to it was occupied by officers Dave Williams and Jimmy Burgio.
District Attorney Ralph Martin, Boston Mayor Thomas Menino (left), and Police Commissioner Paul Evans (right) at a press conference.
Bobby Dwan was Kenny Conley"s partner the night of the c.o.x beating.
Kenny Conley, suspended from the police force, appeals his 1998 federal conviction of perjury and obstruction of justice.
Dave Williams. He was Burgio"s partner the night of the c.o.x beating.
Jimmy Burgio.
Mike c.o.x in the days before his civil rights trial.
Kenny Conley back on the force.
s.m.u.t Brown today in a Maine prison.
PART III.
Justice Denied, Then the Trial.
CHAPTER 14.
The White Guy at the Fence.
By the time he appeared before Bob Peabody"s grand jury in December, Dave Williams was likely feeling more emboldened than ever. He"d come up with explanations for the incriminating utterances he"d made the night of the beating, had stuck to them during repeated questioning, and had not faced any heat. In fact, the worst that had happened was being named in Mike c.o.x"s civil rights lawsuit, and Williams let Mike know what he thought about that.
He called Mike after receiving notice of the lawsuit. "I got something in the mail."
"Yeah, I a.s.sumed you would," Mike said.
Mike was at his desk in the Internal Affairs office. Williams said he wanted to see him right away. "Well, I"m here," Mike said.
Without hesitation, Williams marched into Internal Affairs. He asked what Mike was up to suing him and the department. He reiterated his talking points from their chance encounter in Franklin Park: You know I know you, he said.
Yeah, Mike said, he knew all that.
"I hope you don"t think I hit you," Williams said.
"Just do the right thing," Mike said.
Williams grew agitated. Right thing? Right thing? "f.u.c.k everybody," he said.
"You should f.u.c.k everybody," Mike said. He told Williams he did not owe anyone anything. "So why cover for them?"
They talked in circles and then Williams left. It took Mike a few minutes to fathom the strangeness of the moment: a prime suspect in the beating challenging the beating victim in the offices of Internal Affairs. And it turned out Mike"s boss, Deputy Superintendent Ann Marie Doherty, had even spotted Williams. But she did not intervene and merely told Mike later that William"s presence was not appropriate.
Williams had dug in and was now on a roll. It seemed even when he lost, he won. He got the result of the last excessive force case pending against him, the one involving teenager Valdir Fernandes, who claimed to Internal Affairs and in a lawsuit that Williams slapped him around on his porch. Williams learned he"d been found guilty of physically abusing the teenager. Two officers had backed Williams, brazenly submitting reports that were virtually identical, except for signatures and a few token changes in wording and grammar. But there was a glitch; the identical accounts didn"t quiet line up with Williams"s. The two noted that Williams, after the boy spit near him, "grabbed Valdir above the jacket." Williams, in his report, never mentioned touching the boy at all. The discrepancy was enough for the Internal Affairs investigator to rule that Dave Williams"s account was "less credible" than the boy"s. Making matters worse were the photographs of the boy showing "bruises consistent with being slapped in the face."
For once it looked bad. But appearances were deceiving. Once again, even an adverse result proved much ado about nothing. No disciplinary action was taken against Williams, and, eventually, the city paid Valdir Fernandes $7,000 in a settlement to end the lawsuit against the police.
Two months after making the Hail Mary proposal to his boss, Bob Peabody got his wish in early 1996 to take a final run at Dave Williams. He and Lieutenant Detective Paul Farrahar arrived at Williams"s lawyer"s office, located in a building near Quincy Market, the popular shopping area in the shadow of the elevated Southeast Expressway that cut through Boston"s downtown, on a gray February day.
Waiting in a windowless conference room was Williams and his attorney, Carol S. Ball. Peabody had known Ball for years; she was a former a.s.sistant district attorney and he"d long admired her feisty, high-energy advocacy. "I could talk to her and vice versa, and so I asked for this audience." The meeting had come together quickly. Ball had been named to the bench and would soon leave her practice to become a Superior Court judge. She would have to quit representing Williams-and, for that matter, all her clients.
The ground rules were simple: The session was unofficial and off the record. Peabody"s hope was to persuade Williams to come around. He and Farrahar decided beforehand to do the "good cop, bad cop thing," with Peabody playing the role of bad cop. His approach would be: "C"mon, Dave, here"s your chance. Tell us what happened. I think you know more. I think you saw more."
The prosecutor began by explaining why he"d asked for the meeting. He told Williams his story about chasing Marquis Evans was contradicted by two other police officers. He urged Williams to "come clean rather than protect his partner that night."
But Williams was unmoved. "He was terse," Peabody said later. "He"s a big man. I"m a big man, too, but I"m not as big as he is, not as wide. He just said, "That"s all I know."" It was as if Williams was saying: You"re not intimidating me with your hardball stuff.
Peabody quickly saw the last-ditch tactic was a bust. "We weren"t getting anywhere," he said. "I just couldn"t crack him." Reluctantly, he threw in the towel.
"It was a short meeting."
Peabody"s last hope was Ian Daley, who initially struggled and asked Jimmy Rattigan for advice about what to do, but then clammed up. Like Jimmy Burgio, Daley invoked the Fifth Amendment when summoned to meet with Anti-Corruption investigators during the summertime. But by early March 1996, Peabody was talking with Daley"s lawyer, trying to turn Daley into a cooperating witness. Peabody believed Daley had had a "ringside seat" at the dead end and, if Peabody could flip him, Daley would make an ideal witness.
Peabody and Daley"s attorney, a former local prosecutor named Tom Hoopes, went back and forth. Hoopes was a seasoned pract.i.tioner. Before making any deal, he wanted Peabody to reveal the evidence gathered against his client. He demanded that Peabody actually let him read the transcripts of the secret grand jury testimony.
Hoopes wanted, in short, to see Peabody"s hand in what amounted to a legal poker game. He was doing what most any defense attorney would do-consider cutting a deal that would minimize or even eliminate criminal liability in return for the client"s testimony. His primary legal responsibility was protecting his client from criminal charges. But in this instance there was a second and nearly equal concern weighing heavily against any form of cooperation. Cops don"t want to testify against other cops; to do so was tantamount to professional suicide. But there was a scenario that could justify Daley becoming a witness: if other cops had already started talking and were hurling accusations against him. Under those circ.u.mstances, Daley could explain he hadn"t run to the courthouse and been the first cop to make a deal; he"d done so reluctantly and only to defend himself. Most cops would understand that.
Jockeying with Peabody, Hoopes had to keep all this in mind. He needed to know what Peabody had on his client, and, to get that, he indicated that Daley was considering a deal. What, if anything, had other cops said against his client? Had anyone gone so far as to finger Daley in the beating? Hoopes needed answers. He swung by Peabody"s office on the first Monday in March, and the two lawyers discussed the c.o.x investigation.
Peabody, afterward, wrote his supervisor an e-mail. "He has revised his latest demand to view GJ testimony re: his client"s (Daley) involvement," he wrote. "Instead, he asks that I give him an oral summary of what evidence (to date) impacts his client and/or how he is involved." It may have been wishful thinking, but Peabody said from talking to Hoopes, "I got the impression that Daley may want to cooperate."
If true, Peabody saw a huge upside. Hoopes, in the give-and-take, said his client would be able to get Peabody "halfway there" in solving the a.s.sault, but that he was unable to "name names." Peabody wasn"t sure what this meant. Did it mean Daley was not able to provide a specific blow-by-blow-saying which cop hit Mike first, dragged him from the fence, and so forth-but that Daley had seen the beating and could identify the a.s.sailants, if not by name then by description? Or did it mean Daley had not witnessed the actual beating, but, seconds afterward, saw the cops who"d done it standing right there talking about their brutal handiwork? Peabody may not have known the answers, but he was sure of one thing: Daley was a valuable witness whose cooperation he wanted.
But Peabody was also aware of the risk of telling all. "The downside," he wrote, "is that he will see our cards and, now knowing he"s safe, keeps silent." The prosecutor was at a crossroads, desperate even. "I think we should comply with his request," he recommended, and got the okay.
Peabody disclosed to Hoopes that no one was accusing Daley of beating Mike and he had no evidence to charge him. Weeks went by, and Peabody heard nothing back. In early April, after nearly a month, he called Hoopes. Was Daley going to play? He pressed for an answer. Then Hoopes delivered the bad news-thanks, but no thanks. Peabody reported the devastating kiss-off in another e-mail to his boss, the DA Ralph Martin. "Daley said NO despite having the unusual benefit of knowing almost everything our investigation has learned to date about the events of January 25, 1995." Peabody"s worst-case scenario had indeed come to pa.s.s. He"d been outmaneuvered-baited, in effect-by the long shot he"d get Daley to cooperate. For Daley, it was a no-brainer. Why stick his neck out? In a game where justice had taken a backseat, he had no incentive to break his silence. Peabody had nothing on him.
"The test of loyalty oftentimes on police departments," a Boston police official once said, "is, number one: Will you lie for me? And if you won"t lie for me, will you at least be silent?" In short order, the frustrated Peabody had suffered a wrenching one-two punch from Dave Williams and Ian Daley, the two cops he considered key to his prosecution. "You could tell Williams and Daley knew more," he said. "I couldn"t get either of them to take it to the next level." Peabody was not sure what more he could do.
"We"ve sort of run out of gas."
While Bob Peabody was realizing a year into the investigation that he was spinning his wheels, his colleagues happened to be on the losing end of a courtroom battle against another Boston police officer accused of corruption. The cop had been charged with stealing $6,352 in cash from a wallet a civilian turned in to police after finding it on the lobby floor of her apartment building. The officer insisted he had not stolen the money. He"d left the wallet on the counter, he said, and while he was attending to another matter, an unidentified man came into the station and took the cash. The officer certainly seemed caught in a bind prior to the trial-trouble of his own making. Investigators uncovered two incident reports he"d written. The first recorded receipt of the wallet, the $6,352, a Hermes watch, and an airline boarding pa.s.s. The second, replacing the first, mentioned a wallet, the watch, and the boarding pa.s.s-but no cash. Taking the stand to defend himself, the officer testified he wrote the second report not because he stole the money but to cover up the embarra.s.sment of leaving the wallet on the counter. He was guilty of a lie, not larceny. The jury agreed, and, on a Friday in late April, the officer was acquitted.
The media called the verdict a "stinging defeat to Suffolk County prosecutors," a reference to Ralph Martin"s losing track record against Boston cops suspected of wrongdoing. Earlier that year, a judge had thrown out the case charging a cop with raping a prost.i.tute with a nasty public rebuke, and now this losing trial verdict. Not surprisingly, Tom Drechsler represented the cops in both cases, the lawyer of choice for cops in trouble. Jimmy Burgio"s attorney was fast establishing himself as Martin"s nemesis.
In the weeks following this latest setback, Martin entered into discussions with the U.S. attorney"s office in Boston about federal prosecutors taking over the c.o.x investigation. Peabody had not been able to uncover the kind of evidence he believed necessary to convict cops responsible for Mike"s injuries. Bob Peabody needed eyewitnesses. "We didn"t have anybody saying, "It was him, it was him, it was him."" It was no longer enough to build a circ.u.mstantial case, not in the hothouse atmosphere of cop cases. "You want slam-dunk evidence," Peabody said. "We certainly didn"t have it."
Having come up empty, Peabody began directing his focus elsewhere. He was a.s.signed to prosecute an electrician charged with involuntary manslaughter after three children died in a house fire sparked by the electrician"s faulty wiring. It was a complicated case, and Peabody started preparing for the trial in early January, when he would argue that the electrician"s work in a bas.e.m.e.nt apartment was so atrocious and careless he should be held criminally responsible. Peabody"s career also took an important turn. Working alongside federal prosecutors in the Charlestown "code of silence" racketeering case, he"d made a strong impression. He was offered a job as an a.s.sistant U.S. attorney and would be leaving Martin"s office.
Nonetheless, Bob Peabody continued to chase a lead or two in the c.o.x case. One involved the munic.i.p.al police officers. He got word one munie was overheard telling another, "You shouldn"t have hit him so hard." He conducted interviews, but decided quickly the line was locker room banter. "Gallows humor," he said. The remainder of 1996 was mainly about preparing for the electrician"s trial-his last as an a.s.sistant district attorney-and boxing up his c.o.x files for federal prosecutors. Maybe the feds would have better luck breaking down the police culture and getting cops to talk.
To help out the U.S. attorney"s office, Peabody typed up a four-page, single-s.p.a.ced memo, "Status of c.o.x Investigation." It was a confidential summary of the failed grand jury investigation. "This investigation is stalled," he wrote. He covered Mike"s beating and then described what he"d done to try to solve it, including his confrontation with Dave Williams and the unsuccessful negotiations with Tom Hoopes about Ian Daley. "We have questioned (sometimes twice) every person present that night; persons who would have any information about the c.o.x beating." Peabody didn"t realize it at the time, of course, but he was wrong about having gotten to everyone. He had missed that cops from the South End station were also there, namely Kenny Conley and Bobby Dwan.
The c.o.x case would soon become the worry of federal prosecutors, but Peabody seemed reluctant to let go completely. He recommended the DA"s case be kept in an "active" status just in case one of the police officers testifying before the grand jury would "change his mind whether because of what"s happening internally at BPD or for reasons of conscience."
The notion of a cop doing an about-face as a matter of conscience seemed fantastical, given his experience with the police department. Peabody then had a thought that seemed to hold out greater promise. It involved the four men in the Lexus: s.m.u.t Brown, brothers Tiny and Marquis Evans, and Boogie-Down Tinsley. Throughout his c.o.x investigation, Peabody had purposefully stayed away from them, not wanting to risk in any way the integrity of a murder case. But the four were all headed for trial in late October for the murder of Lyle Jackson. The trial, observed Peabody, depending on its outcome, "may shake one or two of the lesser culpable defendants into our camp."
Wouldn"t that be a twist-cooperation not from the cops but from the criminals?
"Hearsay," he continued, "says that the rear left pa.s.senger saw the whole thing and can ID more than one white cop beating c.o.x."
Peabody was talking about s.m.u.t Brown.
The four were being prosecuted by the DA"s office on the theory the murder was the result of a joint venture, a legal term describing a situation in which one person is held responsible for another"s crime if evidence proves they worked in concert and shared the same mental state. s.m.u.t Brown, even though he did not pull the trigger, could be proven guilty of murder if the prosecutor could show that s.m.u.t and the other three, as a team, killed Lyle.
s.m.u.t was represented by a court-appointed attorney named Robert L. Sheketoff. Sheketoff, forty-seven, had come of age in the late sixties, attending an almost all-black high school in Hartford, Connecticut, and then Brandeis University near Boston, where he majored in politics. For the two decades following his graduation from Yale Law School in 1975, the curly-haired, bespectacled, and bookish-looking trial pract.i.tioner had represented all varieties of the accused, from small-time drug dealers like s.m.u.t to the underboss of the Boston Mafia, Gennaro J. Angiulo. He"d done so without fanfare; while many lawyers regularly sought media attention, Sheketoff couldn"t be bothered. Despite his low profile, he was the legal profession"s inside secret, a brilliant workhorse determined to hold the government to the test during a criminal trial, admired by other defense attorneys, prosecutors, and judges alike for his laser-like skill to instantly a.s.sess a witness"s testimony for holes and inconsistencies.
"Trials are like plays-ad-lib plays," Sheketoff once said, "and you absolutely have to listen to every word. The most important thing you can do is listen to the witness."