The Fence - Dick Lehr [150]
Following a recess, Rob Sinsheimer walked to the podium. Throughout the trial he’d lobbied and finally persuaded Steve Roach that, with his experience, he should deliver their final argument. “May it please the court, counsel, Madam Forelady, ladies and gentleman: It is now my solemn duty and obligation to have just a few last words with you on behalf of Michael Cox.”
For weeks he’d been jotting notes with the closing in mind. Lines came to him at night, while driving or taking a shower—ways to organize the speech, tie together the pieces of the case. It was what happened to most trial attorneys, living the case day and night.
“You’ve heard it said that we have the burden of proof,” he told the jury. “We don’t duck from that at all.” His voice felt dry; it was a mixture of his allergies and the importance of the moment. “What I would like to do is explain to you exactly why we believe the evidence you’ve seen is more than adequate, indeed is abundant for you to find it’s more likely than not that these defendants are the ones who did it.”
Sinsheimer had pumped himself up. He was feeling that day after day they had methodically gained momentum. He considered one turning point was Sergeant Dan Dovidio’s testimony. “It wasn’t so much that it was legally relevant, but you felt the atmosphere changing in the room.”
Sinsheimer was confident, particularly regarding the brutality charges against Burgio and Williams. In its best light, the circumstantial evidence, combined with Mike’s testimony that a white cop kicked him, pointed to Burgio, while the same evidence, combined with Smut Brown’s testimony about Dave Williams, showed Williams was in on it too. It was a huge loss not having the jury learn what Williams told Craig Jones at the Roxbury station, but Sinsheimer still thought they had enough.
The case was not nearly as powerful against Conley or Daley. They’d been unable to add much to the judicial notice of Kenny’s perjury conviction and were left relying largely on that fact to argue Kenny saw the beating and was both “deliberately indifferent to excessive force” and part of a cover-up.
With Daley, the judge nearly threw out the claim he was a beater, troubled by the thin evidence. But the case was stronger in showing that Daley left Mike after trying to arrest him—“a deliberate indifference to his medical needs.” Moreover, Sinsheimer was convinced Daley, if not a beater, saw and knew plenty about the beating, but had shut down and stonewalled justice.
“There’s no contest to the notion that this was offensive to human decency,” Sinsheimer said as he stood within a few feet of the jury box. He then marched through the evidence, triangulating the short time frame during which the beating occurred with a head count of the suspected officers at the dead end. He stressed Smut Brown had no motive to lie and was therefore credible, despite his criminal record. He revived Joe Teahan’s arrival and statement that maybe four or five cars were already there to seal the scene. “I suggest to you if we can account for those four or five cars, then we’ve met our burden of proof.” Then he recapped a process of elimination that zeroed in on his targets.
“Now, what do you hear from the defendants?”
Sinsheimer had reached a key and climactic line, a moment when he’d planned to turn and point outward to the gallery where the defendants sat. It would be a dramatic gesture setting up the answer to the question he’d left hanging in the air.
But as he did, as he looked out, he saw Mike Cox seated alone, and he caught Mike’s eye. Mike appeared to be choking up. Sinsheimer was thrown off briefly. “It made me emotional,” he said later, “and I thought for a fraction of a second I might lose it, appreciating the magnitude of the case and what Mike had gone through.” He turned back to the jury and collected himself. “What do you get in response?” he asked.
“Nothing but lies,” he said. “And silence.”
Sinsheimer paused to let the words sink in.
“Lies and silence,” he repeated.
Sinsheimer walked back to his chair. Judge Young told jurors