Time to drop the Conley case

WASHINGTON
OF ALL THE tasks a public prosecutor performs, none is more difficult than stopping a case that has gone on too long and is rotten to the core.

That point was driven home for me last week when a three-judge federal appeals court panel in Boston upheld a lower court's dismissal of a conviction in a 10-year-old case that should have been history at least five years ago.

The case involves the savage beating of a police officer by colleagues, the escape of those colleagues from criminal responsibility, then the sole conviction in the case, for perjury, of another cop who was probably the only officer that long-ago night in Mattapan who did the right thing.

Ken Conley has been stoic throughout this oft-publicized mess that stopped a promising career, but, fortunately, in recent years he has not lacked for advocates against the injustice done him.

One thing that has not changed over the decade is the hideousness of the incident, involving as it did not only race but the infamous blue wall of police silence and the withholding of evidence from the accused. Police officers chasing a shooting suspect encounter an undercover cop, of color, and beat him to the point of disability before he can identify himself. None of them is ever convicted, all the penalties are administrative, but the one conviction in the case is of Conley, who actually arrested the suspect and has never wavered in his insistence that while he was apprehending the bad guy he never saw his brother officer being beaten.

His conviction was overturned by the first district judge who examined the case in depth, a judgment reversed five years ago by the full appeals court. However, in sending the case to a second district judge, the court set the stage for another overturning of Conley's conviction, in large part because an FBI memo destroying the usefulness of one of the two major prosecution witnesses (the other was the involved suspect), was impermissibly withheld from the defense. It was that second judicial victory that a three-judge panel upheld last week.

Everyone should sympathize with the dilemmas now facing US Attorney Michael Sullivan, who can either appeal again to the full appeals court, retry Conley, or let this sorry affair finally end. Sullivan wasn't here for the original prosecution and didn't sign the latest government appeal brief. For bureaucratic and internal political reasons, dropping a case, even a lousy one, is a hard step to take, however immense Conley's grounds for exoneration now are.

I have a tiny, but relevant personal understanding of Conley's ordeal. Just as Watergate was blowing up in Richard Nixon's face in 1973, I found myself in a silly but dangerous criminal matter involving the American Indian Movement's occupation of the hamlet of Wounded Knee on the Pine Ridge reservation in South Dakota. This was Nixon, so instead of a subpoena I was looking at a three-count indictment for accompanying the people who flew three private planes to drop supplies by parachute to the occupiers. As the case developed, one of my attorneys back here was a young Bob Bennett, on his way to becoming one of the go-to defense lawyers in this town. Bennett, without fee, is in charge of Conley's appeals now.

The case against me was garbage, but this was Nixon, whom we later discovered had taken an interest in the affair as his own troubles metastasized. The big break for me came when Elliot Richardson was named attorney general. Within four months of taking office, Richardson dropped the case, saying that there was ''insufficient evidence" to proceed.

I went bananas, fuming that there was not merely insufficient evidence, there was no evidence at all, and that Richardson was smarmy for hiding behind the dodge in his statement. A week or so later, he called me privately, and, with the mischievous wit for which he was famous, thanked me for clobbering him in public. I was too perfectly principled and young to understand through my righteous indignation, so the great man explained. I had helped him with the prosecutors in the field and I had helped him with the crooks and connivers in the White House by losing my cool, and since he had several much bigger fish to fry, Richardson was happy to be rid of my case. As the years passed, until he died, he got a regular laugh out of the story, and, eventually, so did I.

The murky legal and bureaucratic phrase ''in the interests of justice," has multiple meanings, rarely to delineate right from wrong. For me, and I suspect for Conley, it means dumping a lousy case against a person who was wronged by zeal more than corruption. What Elliot Richardson saw in my case was first of all a lousy case, but secondly one that would impede larger interests of justice -- which would ultimately include the vice president and the president. So he dropped it the easiest way be could find -- by declaring the evidence insufficient and infuriating me, at least for a few weeks.

What Sullivan or the Justice Department big shots here should see is another lousy case that hung around years longer than it should have. In these days, dumping lousy cases is one way the public can maintain confidence in the authorities. Enough already.

Thomas Oliphant's e-mail address is oliphant@globe.com.