The Fence - Dick Lehr [110]
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 circumstances, 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 Cox 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 assault, 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 assailants, 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 pass. 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