The Fence - Dick Lehr [128]
Federal prosecutors then called Richie Walker, the second leg in his interlocking web of circumstantial evidence against Kenny. On the stand, Walker displayed none of the shakiness reflected in the explosive FBI report that sat in government files rather than where it should have been—in Willie Davis’s hands. Walker completed his testimony by describing seeing Mike reaching for Smut Brown at the top of the fence.
“Members of the jury,” the judge then said, “we’ll take a ten-minute recess.”
The doors flew open as spectators cleared the courtroom. FBI case agent Kimberly McAllister came out and walked over to where Smut was seated with his mother and Indira; it was part of her job at the trial to “babysit” the government witnesses. Smut was immediately put on edge by the surge of off-duty cops and other bulked-up white guys spilling out into the hallway. A man in the corridor suddenly caught his attention. His heart jumped. He turned quickly to Mattie and Indira, his voice cracking. “That’s him,” he said. Mattie asked what he was talking about. Smut, pointing out a tall, white guy walking away from them, said, “Him! The guy at the fence!”
Smut turned and told the FBI agent—there’s the cop he saw at the fence. He did not know the cop’s name but said, that’s him. “She’s like, ‘No, no, no, no, that’s not the guy,’” Smut said. “I’m like, ‘Yo, it is the guy! I know it’s him.’” It would take Smut a while to sort through the moment. He’d always thought the cop he saw at the fence was the same cop who’d arrested him. He thought that because he’d gotten a solid look at the white cop at the fence—he was tall, white, and wearing a cap. Flat on his stomach a few minutes later, he barely saw the cop who captured him, but from a glimpse he assumed he was the cop from the fence. “He’s big, too, with a hat on, and I’m thinking—same guy.” Smut had never had reason to doubt the assumption. Ted Merritt had certainly never asked Smut to explain why he thought the two cops were the same person. Left un-examined, it seemed as if Smut was saying he’d seen Kenny Conley at the fence—a looping deduction that was good for Merritt’s case.
But Smut was realizing this was all wrong. He’d incorrectly merged two cops into one. The mistake meant that walking down the corridor and out of sight was a potential lead in the Cox investigation. Smut tried explaining this to the FBI agent, but she didn’t seem interested. The agent was working to settle her witness down. The short recess was ending, and she wanted to get him on the witness stand.
Smut entered the courtroom feeling flattened. He looked over at the defense table at Kenny Conley. “I have no clue who he is,” he thought. “They got the wrong guy.” Smut walked to the witness stand. He was beginning to sense he was being used.
“Now, please speak into the microphone,” Merritt said after he was sworn. “State your name.”
“Robert Brown.”
“How old are you, Mr. Brown?”
“Twenty-six.”
Smut kept waiting for the courtroom finale when the witness is asked to point out a defendant: Can you please point out the tall, white guy you saw that night at the fence?
No, Smut could not. “I would have said, ‘I seen him out in the hallway.’”
But the Perry Mason moment never happened. Merritt had never needed Smut to directly identify Kenny Conley before, and he wouldn’t now. For his part, Smut was not about to interrupt the proceedings. “I just figured, man, I just want to get this over with. Go get the hell out of there.” Instead, Merritt artfully unveiled the powerful inference created