It didn"t always happen with clients, but Sheketoff had grown fond of Robert "s.m.u.t" Brown. He didn"t think s.m.u.t came close to being a cold-blooded street criminal capable of killing. He"d seen plenty of those types in his career. He saw instead a charmer, with a spark in his eye, who grew up in tough surroundings and had made plenty of bad and stupid choices. He loved his kids. Drug dealer? Yes. Killer? No.
"He had a very good side to him," Sheketoff said.
With s.m.u.t, Sheketoff"s goal was to show the jury s.m.u.t had nothing to do with the fatal shooting; that s.m.u.t was as surprised by the outburst of gunfire as the patrons fleeing Walaik.u.m"s; that the killing was sudden and not premeditated; and, finally, that s.m.u.t was outside when all h.e.l.l broke loose. In sum, s.m.u.t did not share the mental state required for a joint venture and was not guilty in the tragic slaying of Lyle Jackson.
While preparing for trial, Sheketoff sometimes found it hard to focus solely on the murder. The reason was the c.o.x beating. It may have been ancillary, but the beating was like a giant elephant in the room. He thought he"d seen it all. "Maybe this is too cynical, but I don"t think there"s anything particularly unusual about police beating up suspects, you know, going overboard." But c.o.x was different. "What"s hard to comprehend," he said, "is when it turns out it was a police officer who was almost killed, but the police solidarity is such that no matter how old, how young, male, female, black, white, the police officers-they all keep quiet about what happened. That"s scary."
s.m.u.t added to Sheketoff"s curiosity about the beating. From the time of his arrest, s.m.u.t told his public defender and then Sheketoff about witnessing the cop pile-on. "Long before the trial, I knew from Robert that he had seen the beating."
The murder trial began on October 28, an overcast, 60-degree day, with the jury taking a bus ride to see the crime scene at Walaik.u.m"s and travel the more than ten miles of the chase through Roxbury into Mattapan, and ending at the dead end of Woodruff Way. The restaurant was so cramped jurors were taken inside in three groups of five, five, and six. Throughout, the prosecutor served as tour guide, pointing out relevant sites-the locations, for example, where the men tossed the guns out of the Lexus during the car chase. When they reached the dead end, he urged jurors to study the layout. Looking around, Sheketoff, for one, was brought up short. "Wow, this is pretty small," he said. He found himself wondering again about Mike c.o.x. "I couldn"t imagine how a couple dozen cops were there, and no one saw what happened?" He didn"t buy it.
The next day Lyle"s mother, Mama Janet, took the witness stand-the first of twenty-six witnesses who testified during the eleven-day trial. It was a good call by the DA to start with her. She vividly brought back to life for the jury the murder victim, her twenty-two-year-old son, the father of a five-year-old-boy, working at a department store and trying his best to make his way in the world. She described how she got a telephone call in the middle of the night and ran around the corner to Walaik.u.m"s, where Lyle, riddled with bullets, was being loaded into an ambulance. Her son died six days later.
While the prosecutor was trying all four men as partic.i.p.ating in a joint venture, he still had to settle on two as the actual shooters. From the witnesses police had a.s.sembled, he concluded the gunmen were Tiny and Marquis Evans. The proof came mostly from the one witness the DA"s office determined was most reliable-a twenty-eight-year-old Jamaican named Alton Clarke. Clarke had been a constable in Jamaica prior to moving to Boston. Clarke had told police he saw two gunmen run from the restaurant and climb into the Lexus. He said they climbed into the car"s front seats. The two shooters, therefore, were the driver and front-seat pa.s.senger-and that meant brothers Tiny and Marquis.
s.m.u.t was surely helped by Clarke"s testimony; for starters, Clarke got it right and wasn"t calling s.m.u.t one of the two shooters. But it got even better. Clarke went on to say that when the two gunmen jumped into the Lexus, he saw the other two men-namely s.m.u.t and Boogie-Down-were already in the backseats.
Sheketoff was delighted. In fact, Sheketoff learned prior to trial that the government had only one witness to argue s.m.u.t was part of a murderous joint venture, a friend of Lyle"s who claimed s.m.u.t pointed out Lyle Jackson seconds before the shooting started.
Marcello Holliday began by telling the jury he and Lyle socialized at the Cortee"s Lounge to "mess with women," where he drank "one or two beers." They headed to Walaik.u.m"s after closing time. He said he saw s.m.u.t huddled with the Evans brothers and then overheard s.m.u.t "whisper something to Tiny and Marquis." He quoted s.m.u.t saying, "that"s one of them right there," indicating Lyle at the food counter. Following those words, Holliday said Marquis pulled out a gun.
Finally, when Holliday was asked to describe what s.m.u.t was wearing, Holliday answered a tan Pele jacket-Pele being "the name of the jacket that was written on the back."
Sheketoff was quick to interrupt. "What was the answer to that?" s.m.u.t was not wearing a tan coat inscribed with the soccer star"s name. He had been wearing a brown leather jacket the night Lyle was killed.
Holliday tried to take it back, saying he actually wasn"t sure what s.m.u.t wore. But the damage was done. Sheketoff had emphasized the discrepancy for the jury.
Sheketoff sat listening intently as Holliday finished and, standing to cross-examine him, felt the testimony from the government"s single witness against his client had turned out to be "manna from heaven." He challenged Holliday"s math on his drinking. "One or two?" Was that credible for Hip-Hop Night at the Cortee"s when he was on the prowl for girls? He asked Holliday more questions about the "Pele" jacket to further drive home the witness"s foul-up. Most important, Sheketoff pounced on the word Holliday had chosen to describe s.m.u.t talking to the Evans brothers: whisper. Walaik.u.m"s was packed that night. Even if s.m.u.t had whispered something, how could Holliday have gotten it right with all the noise? In relatively quick fashion, Sheketoff showed the jury Marcello Holliday"s testimony was not evidence it should rely on.
In presenting his case, the prosecutor called eleven Boston police officers to the witness stand-officers like Jimmy Rattigan, who described crashing his cruiser to avoid colliding head-on with the fast-moving Lexus, and officers like Roy Frederick, the off-duty cop who retrieved one of the weapons near his front yard. Critical in any murder prosecution was calling the arresting officers to the stand. The jury therefore heard Craig Jones testify about capturing Tiny Evans on the left side of Woodruff Way. Richie Walker took honors for s.m.u.t Brown, even though, in fact, Kenny Conley had caught s.m.u.t. But because of flawed police reports crediting him, Richie Walker was the cop who took the stand and promised to tell the truth. He told the jury how he ran between the Lexus and a police cruiser, stepping over two fallen suspects, Boogie-Down and Marquis, and then hustled through a hole in the fence to take up after the fleeing s.m.u.t Brown.
Jimmy Burgio was the officer who took credit for arresting Boogie-Down, but he was nowhere to be found. Burgio, due to the c.o.x investigation and the fact he"d taken the Fifth, was off-limits. The prosecutor therefore summoned Dave Williams to speak for his partner, Burgio, and about the arrest he"d taken credit for-Marquis Evans.
It was late in the day. s.m.u.t sat at the defense table next to Bob Sheketoff. Williams was the last of a string of officers called to testify. Dressed in uniform, Williams strode into the courtroom and made his way toward the witness stand. s.m.u.t watched the tall, broadly built cop with the mustache settling into his chair. His mind began spinning. s.m.u.t instantly recognized Williams from the fence. Williams was one of the cops he"d watched haul Mike c.o.x down and beat him. s.m.u.t couldn"t hear Dave Williams"s voice answering the prosecutor"s questions-it was all white noise. His mind was in a paroxysm, crazy with the recognition. He leaned into Sheketoff.
"That"s the guy," he said. "That"s the guy."
But Sheketoff didn"t hear his client. He was listening to Williams testify-and was in the midst of his own epiphany. "I"m thinking I know who beat up Mike c.o.x."
He found unbelievable Williams"s account of him and Burgio apprehending two suspects in front of the Lexus. For one, it was contradicted by Richie Walker, who said he"d stepped over Boogie-Down and Marquis lying facedown between the Lexus and Williams"s cruiser. Then Williams went on to say he"d chased Marquis fifteen to twenty yards and never knew about a fence with a hole in it encircling the dead end. The distance Williams described would have taken him through the fence and down the hill.
Sheketoff was stunned. It was a story where Williams, conveniently, ended up as far away from the c.o.x beating as possible. When it came his turn, Sheketoff rose and immediately went after the Boston police officer. He began by bringing out the fact Williams was caught lying by Internal Affairs about the cruiser he and Burgio rode in.
"It was just considered a minor infraction," Williams said.
He then went for the jugular and challenged Williams about c.o.x. Pointing to the area on a map of the dead end where c.o.x was beaten, he asked, "You and Burgio weren"t over here?"
"No, sir," Williams said.
"Did you see anyone in that area over here behind your cruiser, in this area?"
"No, sir."
"Did you see any altercation that involved Officer c.o.x at any time?"
"No, sir."
The prosecutor began objecting, and the judge called a timeout. He had the lawyers walk to his bench for a conference outside the earshot of the jury. What, he asked, was Sheketoff up to? "I heard Officer Walker"s testimony," Sheketoff said. "So it seems to me that this guy was not out chasing anybody. He was out doing something else."
But what"s the relevance? The judge warned Sheketoff. "I"m not going to have this a trial of whether or not Mr. c.o.x was injured rightfully or wrongfully by police officers," he said. "This isn"t going to be a trial of Mr. c.o.x"s problems."
Sheketoff had indeed wandered off track. The case at hand was murder, not justice in the c.o.x beating. But he was outraged and unable to stop himself from momentarily subst.i.tuting the public"s interest over his client"s. "Not that it really was any of my business," he conceded later, "but I"m also a citizen of the Commonwealth."
While s.m.u.t and the others were on trial for the murder of Lyle Jackson, the U.S. attorney"s office in Boston began a.s.suming control of the investigation of Mike"s beating. Bob Peabody and Lieutenant Detective Paul Farrahar went over to federal courthouse, a worn, granite and limestone tower built during the Depression in downtown Boston, as part of the transition, to meet the federal prosecutor and FBI agent heading up the new probe. The c.o.x case had made it to the big leagues-the top of the investigatory food chain, the U.S. attorney, District of Ma.s.sachusetts, U.S. Department of Justice.
The case was a.s.signed to S. Theodore Merritt, a forty-four-year-old a.s.sistant U.S. attorney, originally from New York City. His given name was Stephen, but he went by Ted. Merritt had attended Harvard College and then Villanova Law School. He went to work for the federal government right away, in early 1978, after pa.s.sing the bar exam. He began as a staff attorney in the Civil Rights Division in the Department of Justice. Seven years later, in 1985, he moved to Boston to become a prosecutor, first in the Criminal Division and then in the Public Corruption and Special Prosecutions Unit.
In court, the dark-haired Merritt often came off as humorless and all-business. He wore a neatly trimmed mustache and was average in height and build-standing no more than five feet, nine inches tall-but loomed larger, given his intensity. Some opposing attorneys found him menacing, a prosecutor who always made it clear he was acutely aware of the enormous power of the federal government and how it could upset people"s lives. By the mid-1990s, specializing in public corruption, he"d made his mark as a prosecutor who mostly prevailed in court, and when he did, took no prisoners.
His cases included those of the ex-police chief of Winthrop, a town just north of Boston, who for more than a decade accepted $70,000 in bribes from the operator of video-poker machines; the Ma.s.sachusetts state trooper who, while on duty, beat up a man outside a bar and lied afterward to cover it up; the guard in a county prison who threw a cup of boiling water on an inmate, in restraints, who was awaiting trial for the rape and murder of a young girl. In each, Merritt either won at trial or got the suspects to plead guilty.
During the meeting with Peabody, Ted Merritt and his investigators were given a quick rundown of the stymied investigation. The targets were identified-Jimmy Burgio, Dave Williams, and Ian Daley-as was the theory that Mike c.o.x was a.s.saulted by at least one and possibly three cops. In the big leagues that belonged to the "feds," the main strategy to break a logjam was to find a cop to "squeeze." Best case scenario: This cop was on the periphery of the crime and either had witnessed or possessed information about the actual wrongdoers. Once identified, the feds would then go after the cop, apply their considerable legal muscle so that he suddenly faced a choice: Either get hurt by the government or cooperate. The pitch went something like this: We don"t want to hurt you; we want your cooperation. But if you don"t cooperate, we will hurt you. "This is how they work," one veteran Boston defense attorney said. "They target people, they give them bad choices, and they hope they choose Team America." In the end, the witness was a stepping-stone, a p.a.w.n in a larger prosecutorial game.
Paul Newman once starred in a film showcasing this cla.s.sic federal strategy. The 1981 film, which also starred Sally Field as a newspaper reporter, was Absence of Malice. In it, a fict.i.tious federal prosecutor named Elliott Rosen, based in Miami, is under intense pressure to solve the mob hit of a union boss. Rosen decides Newman, playing a liquor distributor and the son of a deceased crime figure, must know-or could find out-something. He puts the squeeze on Newman, having FBI agents tail him and IRS agents scour his books looking for something to pressure Newman into cooperating. Even though it"s bogus, Rosen then leaks to reporter Sally Field that Newman is the subject of a federal investigation into the murder. Rosen hopes Newman, feeling his life might be in danger from others in the underworld, will come around. But Newman knows nothing-has, in short, nothing to trade-and he spends the movie working his way out from under the intense federal scrutiny and exacting revenge against the corrupt Rosen.
Ted Merritt was no Elliott Rosen. (Rosen"s corrupt practices included having FBI agents illegally bug Newman"s telephones.) But, like Rosen, Merritt was inheriting a big case in the unsolved beating of Mike c.o.x, a case where every other investigator had come up short. The c.o.x investigation was no different, either, from the standard operating procedure. Find a cop to squeeze. The question was: Which cop?
During the fall, Merritt and his investigators began combing through all the files and transcripts from prior probes. They had everything, including early reports filed to the police department"s Internal Affairs Division, which had been off-limits to Bob Peabody. It was during this process of carefully reading their way into the case that they came across some of the material Peabody never had-namely, the incident reports originally filed on March 3, 1995, by Kenny Conley and Bobby Dwan. Merritt was fascinated by Conley"s. In particular, Merritt focused on where Conley described chasing s.m.u.t Brown: "I then observed a black male, about 5" 8" in height, wearing a brown leather jacket, who I observed exit the suspect"s motor vehicle from the right side, climb over a fence. With the suspect in view, I jumped over the fence and after a lengthy foot pursuit, I was able to apprehend the suspect in the rear of a building."
To Merritt, it surely felt like a discovery-a diamond in the rough. Here was a cop saying he scaled the fence where c.o.x was beaten. Conley must have seen something. It only made sense. Yet nearly two years had pa.s.sed since Conley"s report to Internal Affairs, and no one had pursued the matter further with him. Conley never even took credit for arresting Brown-that went to Richie Walker. It all seemed odd. Cops usually wrestled for credit. Was Conley hiding something?
It would be early 1997 before Merritt"s investigation was going at full speed, but Kenny Conley had high potential. The Conley report vaulted to the top of the pile.
In his closing remarks to the Suffolk County jury on November 7, Bob Sheketoff said Lyle Jackson"s shooting was "spontaneous" and not a planned killing, or joint venture, as the prosecutor was claiming. Focusing on the lack of credibility of the lone witness against s.m.u.t, he portrayed Marcello Holliday as an intoxicated patron at Walaik.u.m"s who couldn"t tell up from down. "Could he have had three or four beers, maybe a few more than that?" He reminded jurors that while Holliday accurately described the others" garb, he got s.m.u.t"s wrong. "He couldn"t remember one single thing about my client, not one." Most important, he returned to Holliday"s use of the word "whisper." "That place was abuzz." If s.m.u.t Brown said anything, how could Holliday have heard? "Did he say, "That"s one of them," or did he say, "I don"t want any?"" Or maybe " "Sure, I"ll get you a hamburger?"" Sheketoff said Holliday could not make out normal conversation, never mind a whisper. "Don"t let some person who tried to tell you what a whisper was, whose testimony is contradicted by every other eyewitness in terms of the sequence of events, don"t let him convince you beyond a reasonable doubt."
Sheketoff was feeling pretty good about his client"s chances. He didn"t think, however, it looked good for either Tiny or Marquis Evans. Both had taken the unusual step of testifying in their own defense. It was disastrous. Tiny"s demeanor, hard looks, and stutter worked against him. He said his brother and Boogie-Down walked ahead of him into the restaurant. He lost sight of them, and, seconds later, the shooting began. Tiny"s claim of complete ignorance was beyond belief. Marquis then testified his gun went off accidentally and just kept firing bullets on its own. Sheketoff, seated at the defense table, spotted a juror actually swivel in his chair to turn his back on Marquis. "Talk about someone who has stopped listening," Sheketoff thought. "How more clearly can you express you don"t believe the witness?" In his closing, the prosecutor jumped all over Marquis"s claim of accidental shooting. "Did you believe anything he said?" he asked. "He just happens to have the loaded nine millimeter handgun in his hand. He starts spraying the ground, because he"s afraid. Is there a scintilla, a shred of truth to that? Even a shred? It"s pathetic. That testimony was pathetic. Of course, that"s for you to determine."
Jurors decided it was indeed pathetic. They convicted Tiny and Marquis of first-degree murder, and the brothers were sentenced to life in prison without parole. The jury then acquitted s.m.u.t and Boogie-Down. s.m.u.t was hugely relieved-he"d gotten justice, but he also considered it rough justice. He understood the legal theory of joint venture and thought if that fit Tiny and Marquis, it fit Boogie-Down as well. But the government had nothing on Boogie-Down, and Boogie-Down was going home too.
Following the verdict, s.m.u.t turned in his seat and looked at his mother, his sisters, and Indira. His mother and Indira had come every day to the trial. s.m.u.t wore that signature smile of his-the curl that mixed mischief and deep relief. Ten minutes later he was a free man, embracing his mother in the hallway outside the courtroom. Then he swept up Indira. He thanked Bob Sheketoff. He had been behind bars for twenty-two months. The family rode the subway"s red line to Mattapan and celebrated s.m.u.t"s acquittal at s.m.u.t"s old haunt. The last time s.m.u.t was in Conway"s was the night Lyle was killed. s.m.u.t stayed for one drink; all he wanted was to go home and be with Indira and eight-year-old Shanae and five-yearold Robert Brown IV.
Sheketoff had something else on his mind. He"d just completed a murder trial with a bizarre side show-the unsolved c.o.x beating-featuring Boston cops testifying at cross purposes and contradicting one another. It stunk of a cover-up. Federal prosecutors, taking over the investigation, were looking to talk to s.m.u.t. Sheketoff was planning to encourage s.m.u.t to cooperate. In all his years, he"d never heard about such grotesque police misconduct and abuse of police-and, after two years, they seemed to be getting away with it. These cops, Sheketoff believed strongly, "needed scrutiny."
By early in 1997, s.m.u.t Brown found himself a part-time job in a manufacturing plant. He also resumed what he knew best-selling cocaine. In February, he was arrested by Boston police and charged with dealing c.o.ke and pot. He made bail. The FBI came around Mattie"s house in Mattapan looking for him, but s.m.u.t wasn"t home. Bob Sheketoff then called and explained Ted Merritt wanted him to testify before a federal grand jury investigating the c.o.x beating. But first, Sheketoff said, Merritt wanted to meet. "I was reluctant," s.m.u.t said. "I was telling him I didn"t want to be in the middle of that. I was like, you know, I"m out here on the street and, you know, I don"t want to be going against the police, man, because I"m n.o.body. Who"s going to believe me?"
Sheketoff urged him to tell Merritt what he"d been telling him for a couple of years. s.m.u.t thought it over. He talked to his mother and Indira and decided to talk. "I thought it was right," s.m.u.t said. But he had other reasons for cooperating. The first had to do with his ill-will toward the Boston police. "In my own way it was like getting back at them for what they did to me. I"m not gonna sit here and say I wasn"t bitter." Finally, there was Mike c.o.x. He respected c.o.x. "He always treated me fair."
The next month, he and Sheketoff showed up at Merritt"s office. Besides Merritt, the lead investigator, an FBI agent named Kimberly McAllister was there. s.m.u.t told the feds what he saw in the seconds after he scaled the fence and before he took off on foot. He described c.o.x-who, at the time, s.m.u.t thought was Marquis-getting beaten. He identified Dave Williams as one of the beaters.
Then s.m.u.t said that standing next to the melee was a "tall, white guy."
Tall, white guy?
Yeah, s.m.u.t said. Tall, white guy-standing there by the beating.
Did he know the cop"s name?
No, s.m.u.t said.
Ever see him before?
No, s.m.u.t said. Except he was the same cop who arrested me.
Merritt was eager to get s.m.u.t Brown before the grand jury.
Kenny Conley was half asleep in the living room of his second-floor apartment in South Boston. His tall, muscular frame was stretched out on the couch. It was Wednesday, March 26, raining outside, and Kenny was trying to get some rest after his overnight shift. There was a loud bang at the door.
He scrambled up off the couch. He"d been living in the second-floor walk-up at 720 East Seventh Street for only a couple of months. The triple-decker was owned by his twin sister Kris"s boyfriend"s brother. It sounded complicated, but that was Southie. Couldn"t beat the friendly rental. Kenny was also feeling good about something else in his life-Jennifer Gay. He had been seeing Jen, pretty, pet.i.te, and brown-haired, since they met during Octoberfest on the waterfront. It was getting serious. For her work as a nursing home administrator, she"d moved during the winter to the town of Lee in western Ma.s.sachusetts, but they were spending most weekends together in Boston.
Kenny pulled open the front door. The landing did not get much natural light and was a bit dark. Standing there were a woman and a man, both well-dressed.
The woman identified herself as Kimberly McAllister of the FBI.
We"d like to speak with you, she said. We think you can help us with a case we"re investigating.
Sure, Kenny said. Come on in.
CHAPTER 15.
The Perjury Trap Five months later in New York City, the police a.s.sault of Haitian immigrant Abner Louima was the talk of the nation. Louima had been arrested following a disturbance outside a nightclub on August 9, 1997. Taken to the 70th Precinct station house in Brooklyn, he was beaten and sodomized in the bathroom by a patrol officer named Justin Volpe. Volpe kicked and pummeled Louima, and then, with Louima"s hands cuffed behind his back, shoved a plunger up his r.e.c.t.u.m. By month"s end, thousands of demonstrators were protesting outside city hall and the precinct station as part of a march called Day of Outrage Against Police Brutality and Hara.s.sment.
In Boston, when Kenny Conley"s telephone rang on the evening of August 14, he took a deep breath. He picked up the receiver. It was his lawyer, one of two hired by the police union to represent him in a legal mudslide that had begun when the FBI agents came by his apartment.
His lawyer told him to sit down. Then she broke the news: Earlier in the day a.s.sistant United States attorney S. Theodore Merritt had obtained a three-count indictment charging Kenneth M. Conley with twice lying before his federal grand jury and with one count of obstructing justice.
Kenny, the indictment read, "did knowingly make false material declarations before the grand jury." In one count, the government charged Kenny was lying when he said he did not see Mike c.o.x at the dead end; in the second count, the government charged Kenny with lying when he said he did not see the beating. Both const.i.tuted the crime of perjury in violation of t.i.tle 18, United States Code, Section 1623. Then, in a third count, Kenny was charged with impeding "the due administration of justice, that is, a criminal civil rights investigation" of the c.o.x beating "by means of giving false, evasive and misleading testimony." This was in violation of t.i.tle 18, United States Code, Section 1503.
The eleven-page indictment, his lawyer explained, would be un-sealed the next morning in U.S. District Court in Boston, where he would be arraigned. Kenny hung up the phone. He broke down. Then he called Jen at her place in western Ma.s.sachusetts. She told him she was heading back to Boston and would be there as quickly as possible.
The next day, Kenny put on a suit and met his attorney at the Boston office of the FBI to officially "surrender." FBI agent Kimberly McAllister was waiting. She pulled out handcuffs and cuffed Kenny despite the protestations of his attorney, who pointed out that Kenny wasn"t going anywhere and certainly wasn"t a flight risk. Kenny was led away and his lawyer was told to find her own way to the federal courthouse.
The arraignment lasted only a few minutes. Kenny pleaded not guilty to the charges. He was released on a $10,000 bond and headed home. "I just felt alone," he said. For days he didn"t want to leave the house. "I didn"t eat; all I wanted to do was sleep."
If convicted, Kenny faced up to twenty years in prison and a $500,000 fine.
The two FBI agents had not believed a word of what Kenny had said in his living room. The agents had sat together on the couch where he"d been napping, and Kenny had begun the meeting by asking his guests if they wanted a cup of coffee.
No thanks, the agents had replied in unison.
Okay, what can I help you with?
Michael c.o.x.
What do you need?
Kenny, without hesitation, told them everything he knew-which wasn"t much when it came to Mike c.o.x. The agents took notes, and later, in her three-page FBI report, Agent McAllister wrote up Kenny"s account of arriving at Woodruff Way and chasing s.m.u.t Brown over the fence and into the woods. It was basically a rewrite of Kenny"s original statement to Internal Affairs in March 1995 and of his interview with Jim Hussey. Nothing had changed. "He never observed any other individual on the fence or in that vicinity," the FBI agent had written. "Conley stated that he has no knowledge of who is responsible for c.o.x"s injuries nor did he witness anyone a.s.saulting him."
Within days of the interview, McAllister had called Kenny to tell him she was about to file her report with Ted Merritt. Was there anything he wanted to recant?
Recant? Kenny said. No, I have nothing to recant. Why?
The agent said, "I just think maybe you saw something you"re not telling me."
"Which part is that?"
The agent said the part about not seeing anyone at the fence.
Kenny was confused. He"d been open and direct with the agents; he hadn"t littered his answers with "I don"t recall" or thrown up a fog of misdirection by saying, "Oh yeah, I did see people there, but nothing specific because it was all a blur." That wouldn"t have been the truth, and it wasn"t in him to be "cute," the way so many others had to avoid either further scrutiny or naming names. "I said what I said because I didn"t see Michael c.o.x get a.s.saulted. I didn"t see him running after the suspect."
The agent asked one last time: Did he want to change anything?
"Ma"am, I don"t wish to recant any part of my statement."
Ted Merritt seized on the agent"s report as a gift. "He obviously didn"t tell the truth when he was asked to," Merritt said later. Kenny even seemed to be mocking the federal investigators, expecting them to accept a statement they considered preposterous. In short order, Kenny Conley became the cop Merritt would target and convert into a cooperating witness against chief suspects Burgio, Williams, and Daley. Forget about Richie Walker or possibly Ian Daley-they were old news, so to speak, and the racial politics were far from ideal. Both were black, and how would it look for federal prosecutors to be squeezing black cops in the beating of another black cop? Forget other members of Mike"s gang unit, such as Gary Ryan or Joe Teahan, given their a.s.sociation with Mike and the fact that their accounts, however conflicting, were so complicated.
Instead, Kenny emerged from the margins of the case to take center stage. He was a cleaner hit: the muscular white cop from "Southie," built like a brick, standing in the way of justice in the beating of a black cop. Right out of central casting for a prosecutorial drama set in Boston. Choosing Kenny meant that Merritt could exploit the neighborhood"s image as the bigoted enclave violently opposed to busing to desegregate the city"s schools. He could demonize "Southie loyalty" to explain why a cop like Kenny Conley would stonewall the feds to protect fellow officers. Look at Jimmy Burgio; he"s from Southie too. Dave Williams? He and Conley were in the same cla.s.s at the police academy. To Merritt, Kenny was the standard-bearer for the blue wall and its destructive and misguided basic principle: Never squeal on your own.
Merritt moved quickly following the FBI interview to get Kenny before the federal grand jury. The subpoena ordered him to appear May 29. Merritt called ahead of time to say he"d arranged to immunize Kenny with a court order saying Kenny would not be prosecuted for any information and statements he provided the grand jury. In theory, the grant of immunity was an investigatory tool to compel truthful testimony from witnesses reluctant to testify, often because of their own criminal liability. With this legal shield, the witness was free to testify honestly without fear of being charged afterward. The only exception was lying: Witnesses who lied faced perjury charges.
Kenny was planning to appear voluntarily before the grand jury. He didn"t want any deals. No taking the Fifth. No grant of immunity. He thought witnesses who were immunized before testifying had something to hide; he wasn"t like that. But no lawyer in his right mind allows a client to go before a criminal grand jury without immunity once it"s been offered; it would be tantamount to legal malpractice. When he appeared on May 29 to testify, Kenny went along with the government"s offer and was immunized.
Merritt had set a perjury trap. Kenny could either tell the grand jury the story Merritt believed Kenny was hiding-an eyewitness account of the c.o.x beating-or, if he insisted on sticking to that outlandish tale about not seeing Mike, then Merritt would see that Kenny was indicted for perjury. Merritt, of course, was hoping Kenny would fold right away. Then, riding Kenny"s new testimony, Merritt could go after Mike"s a.s.sailants. But if Kenny didn"t, Merritt hoped he"d come around once criminal charges were filed. If not then, Merritt hoped he"d get it when the reality of going on trial hit him. Merritt would contact him periodically to let him know the case would vanish if he changed his tune. The prosecutor was a patient man; he"d keep up the pressure and wait Kenny out. Not one to second-guess himself, Merritt never wondered: What if I"m wrong about Kenny Conley?
Kenny felt like beating his head against the wall. "They thought with the immunity I was going to say to myself, Okay, I"m in the clear now. They thought I was going to go in there and tell them I saw Jimmy Burgio do this, I saw David Williams do that." But Kenny couldn"t do that. Indeed, questioned by Merritt and now under oath before the grand jury, he once again described s.m.u.t Brown running from the Lexus.
"You saw him go up the fence and get down on the other side?"
"Yes," Kenny said.
"And where did you make these observations from?"