The Fence - Dick Lehr [126]
The trial was fast approaching. He and Jen talked about the case. Kenny wanted her to grasp the possibility he might be convicted. Jen wasn’t surprised that Kenny wouldn’t lie, but she wondered, like everyone, why he hadn’t seen Mike Cox. But she never doubted him. She certainly didn’t want him to go and say what they wanted to make the case go away. “Just say what you know,” she told him. “How can you get in trouble for that?”
In the case he built, Merritt had no direct evidence Kenny was lying. He did not have a witness who could testify he actually saw Kenny looking right at Mike Cox or at the beating. Merritt’s case was circumstantial, built mainly on three legs—what he would call the “interlocking” testimony of three witnesses: Mike Cox, Richie Walker, and Smut Brown. Mike said he was right behind Smut Brown during the short run to the fence. Richie Walker seemed to back that up, saying he saw Mike chase Smut Brown to the fence. Smut Brown then finished it off, saying once over the fence, he turned and saw a “tall, white guy” standing by the assault of Mike Cox—the same white cop, Brown also surmised, who eventually captured him after a foot chase through the woods.
It was a tightly woven package. Except for one problem—Merritt’s case was deeply flawed. For one, Richie Walker had become a mess of contradictions and unreliability. The prosecutor and FBI agent McAllister, studying Walker’s prior statements, noticed that Walker had changed his story. He’d told Internal Affairs he saw another cop running behind Mike, but he never mentioned a word of that during Bob Peabody’s investigation. The FBI agent asked Walker about the discrepancy. Walker came up with a lame-sounding explanation. The first account was untrue, he said, a tale he concocted because he was trying to help. “He felt this way because he knows victim and likes victim,” the agent wrote afterward. “He felt bad that he could not say what happened and therefore convinced himself that he actually saw someone or something.”
The agent had asked Walker to take a polygraph test, and Walker said okay. Then Walker, apparently hopelessly confused, proposed his own truth-seeking exercise: hypnosis. It was a zany, almost circus-sounding idea. Not surprisingly, the FBI did not take him up on it. But Walker didn’t take a polygraph either; he balked the day of the test, saying he’d changed his mind.
The muddle was all there in the agent’s typewritten, two-page FBI report—a document the government was required to turn over to Willie Davis during the pretrial discovery phase. The legal nickname for the exculpatory information was “Brady material,” named after the 1963 case Brady v. Maryland, where the U.S. Supreme Court made crystal clear the constitutional importance of the rule: “The suppression by the prosecution of evidence favorable to an accused upon request violates due process.”
But the government never turned over the radioactive memo. In one letter from Merritt that included a section marked “Brady material,” where the memo should have been cited, the letter simply said: “None.” Without the Walker memo, Willie Davis would never get the chance to shred the credibility of a key government witness.
Then there was Smut Brown. Smut appeared before the grand jury the month following his meeting at Merritt’s office in the federal courthouse. He told the grand jury he saw Dave Williams whack a man at the fence. The man was then beaten by officers, he testified, both black and white, dressed in uniform and in plainclothes.
Merritt then asked Smut questions crucial to the pursuit of Kenny Conley. Smut once again said he saw a tall, white cop in plainclothes standing near the beating and that later, after a foot chase, he was caught “by the big white officer.”
With that, Merritt