Appeals Court again hears case of South Boston cop

By Jim Smith

BOSTON — The convoluted criminal case involving former Boston police officer Ken Conley was again before the U.S. Court of Appeals in Boston last Wednesday. A federal prosecutor argued that district court judge Robert Keeton had erred when he ordered a new trial for Conley last September. Conley’s new defense team, meanwhile, argued that the government had withheld newly discovered evidence, had unfairly prejudiced the jury with irrelevant, inflammatory details, and had failed to disclose that one of the witnesses against Conley had declined to take a polygraph test and had acknowledged that he might need to be hypnotized in order to remember details about the scene of the crime.

The case against Conley stems from the brutal beating of a black police officer, Michael Cox, in the early morning of Jan. 25, 1995 when fellow police officers mistook him for a fleeing homicide suspect. After numerous unsuccessful attempts to determine who was criminally responsible for the vicious beating of Cox, federal authorities charged Conley with perjury and obstruction of justice, alleging that he lied to a grand jury in 1997 when he said he had not seen Cox at the scene.

Although Conley was never implicated in the beating of Cox, jurors convicted him in June 1998 of perjury and obstruction of justice after concluding that he must have seen Cox moments before the assault. He was then sentenced to 34 months in federal prison.

Juries in that criminal case and in a subsequent civil case found that Conley had neither participated in nor witnessed the attack on Cox. Three other officers, two black and one white, were found liable for the beating of Cox six months after Conley’s trial, yet no criminal charges were ever brought against them.

Conley’s conviction produced a firestorm of protest in the Irish-American community of South Boston, where Conley resides. At the annual St. Patrick’s Day parade in 1999, thousands of residents wore stickers in support of Conley. Some suggested that Conley was a scapegoat who was targeted by politically motivated federal authorities who were frustrated with the blue wall of silence that surrounded the case.

Local and national political leaders subsequently joined in the protest, along with editorial boards of the Boston Globe and Boston Herald, which called the ongoing prosecution of Conley a travesty of justice.

Adding fuel to the firestorm of outrage in South Boston was the U.S. Department of Justice, which gave an award last fall to the chief prosecutor in the case, assistant U.S. attorney Theodore Merritt, citing him for “superior performance” in the prosecution of Conley.

Judge Keeton, who presided over the trial of Conley in 1998, has now twice ordered a new trial. In June 2000 he ruled that Conley deserved a new trial because of “newly discovered evidence” and “conflicts and contradictions in the record as a whole.” The U.S. Court of Appeals ruled in May 2001 that Keeton had erred in applying an incorrect legal standard, and it ordered Conley to begin serving his prison sentence.

In September 2001, in response to a civil action brought by Conley’s lawyers, Keeton again ordered a new trial for Conley, ruling that federal prosecutors had withheld exculpatory evidence from the defense. He also concluded in that ruling that Conley would likely be acquitted in a new trial.

During last Wednesday’s oral arguments before the Appeals Court, Merritt told the three-judge panel that granting Conley a new trial would be tantamount to “standing justice on its head.” Conley’s new defense team, which is led by Robert S. Bennett of Washington, D.C, argued that a miscarriage of justice has occurred and a new trial is warranted.

Outside the federal courthouse, Conley, who is now 33, said he feels confident. “I have an excellent defense team, and I’m still receiving tremendous support from people who believe that I deserve a fair trial,” he said.