The Fence - Dick Lehr [129]
Everyone came away thinking a clear identification had occurred, including Kenny and his attorneys. For his cross-examination, Willie Davis took the standard tack and attacked Smut as a coke-dealing lowlife whose testimony was unreliable. Merritt’s legal sleight of hand worked so well, in fact, that the next day’s news story in the Boston Globe drew the following conclusions from Smut’s testimony: “Boston police Officer Kenneth M. Conley stood nearby as a fellow officer was beaten senseless by three or four other officers who mistook him as a suspect.” It had sure sounded that way, even though Smut never said Kenny Conley and always said the “tall, white guy.” Brown, the newspaper reported, “said he made momentary eye contact with Conley, who chased, captured, and arrested him.”
Kenny badly wanted to take the stand in his own defense, but having a defendant testify was always high-risk. His lawyer, Willie Davis, convincingly argued against it. Instead, Davis tried his best to attack the credibility of Merritt’s case and argue that with the chaos of the dead end and Kenny’s “tunnel vision,” it was reasonable to believe Kenny missed seeing Mike Cox or the beating while chasing Smut Brown. He asked rhetorically, if Kenny were lying, why would he say he ran to the fence? “Why would he put himself there?” If Kenny wanted to lie and cover up, he said, why didn’t he concoct a story about being far away from the beating? “Why didn’t he do that?”
But by the time Willie Davis made his closing argument to the jury, little had gone well. Even little things—such as courtroom atmospherics—worked against him. One juror complained to the judge she felt intimidated by Kenny’s wall of friends. The judge ordered the spectators to vacate the front row and sit farther back. More important, Davis was at a disadvantage. He was without the explosive FBI report on Walker, lacked the knowledge and resources to call experts about “inattentional blindness,” and, like everyone else, missed how Smut’s virtual identification had been manipulated by the assistant U.S. attorney.
Merritt was the one with all the cards and, in closing, he expertly argued Kenny Conley, in defiance of common sense, had lied to protect Jimmy Burgio, who Kenny knew “growing up in South Boston.” Referring to Dave Williams, Merritt inserted the distinguishing characteristic, “Kenneth Conley’s academy classmate.” He recapped key testimony and reminded jurors that Smut Brown watched officers beat Mike. “Brown then saw a tall, white plainclothes officer around that group,” he said, “and Brown took off, eventually being captured by that same tall, white plainclothes officer, who you know is the defendant, Kenneth Conley.” It wasn’t tunnel vision that prevented Kenny from seeing Mike, he argued. “It was a deliberate cropping Cox out of the picture.”
Finally, in a flourish, Merritt made clear the motive for Kenny’s stonewalling: the blue wall of silence. “When a witness takes an oath to tell the truth in the grand jury, there is no exception for police officers who don’t want to implicate another police officer who violated the law.” He then noted the power of the code, emphasizing Kenny chose to lie even when the beating victim turned out to be another police officer. “What does that tell you about the power, the forces that were motivating Officer Conley, and what does that tell you about the chances when a victim is a citizen?”
Seated next to his attorney, even Kenny was impressed by how the prosecutor played to the jury’s passions. “Listening to Ted Merritt, I think I’m guilty,” he said later.
The jury thought so too. Following seven hours of deliberations, the jury found Kenny guilty of one count of perjury—of saying he’d not seen Mike Cox at the fence—and one count of obstruction of justice. When the verdict was announced, Kenny, dressed in a brown suit, began rubbing his forehead hard, as if trying to comprehend the news. He hung his head and slumped over the table. Behind him, Jen, his sisters