Judge orders new

By Jim Smith

BOSTON — Despite being overruled by a federal appeals court in May after he ordered a new trial for former Boston police officer Ken Conley, a federal judge has again ruled that Conley is entitled to a new trial — because exculpatory evidence was withheld by the prosecution.

In an unusual ruling that has angered prosecutors, Judge Robert Keeton acknowledged that he is not sure if he has the authority to rule on the case again. In May, the federal appeals court ordered Conley to begin serving his 34-month sentence after it ruled that Keeton erred a year earlier when he allowed Conley’s motion for a new trial.

At that time Keeton had cited numerous "conflicts and contradictions in the record as a whole" and "newly discovered evidence" in concluding that "it is in the interests of justice that a new trial be allowed." But in May the appeals panel ruled that Keeton had applied an incorrect legal standard in allowing the motion for a new trial.

Keeton’s new ruling, which was issued in writing Monday, is based on civil rather than criminal law and concludes that secret evidence currently under seal could have been helpful to Conley’s defense.

Conley was convicted in June 1998 of lying to a grand jury about what he saw during the early morning hours of January 25, 1995 when a black police officer, Michael Cox, was severely beaten by fellow police officers who mistook him for a fleeing murder suspect. Jurors concluded that Conley neither witnessed nor participated in the beating, but they agreed with prosecutors who argued that Conley must have seen Cox at the scene moments before he was beaten.

Conley supporters believe that the Irish-American cop from South Boston was scapegoated by investigators who were frustrated by the blue wall of silence that surrounded this case for years. In December 1998, a federal civil jury found three officers, two black and one white, liable for the beating and abandonment of Cox. That same jury found Conley not liable for any offense, and yet he remains the only person ever criminally charged in the Cox case.

Last week prosecutors argued that Conley should begin serving his sentence later this month. Keeton has now set a tentative reporting date of September 26 for Conley, allowing time for the appeals court to rule on Keeton’s order for a new trial.