THE DA’S OMISSIONS & UNTRUTHS 2018
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”D.A. John Pappas’s 12/17/18 Press Release: A Critique” by website author Elaine A. Murphy
Opinions expressed on this page are those of website author Elaine A. Murphy, Senior Justice Fellow, Schuster Institute for Investigative Journalism, Brandeis University
D.A. John Pappas’s 12/17/18 Press Release: A Critique
In announcing that the Commonwealth will drop charges against Sean Ellis for the 1993 murder and robbery of Boston Police Detective John Mulligan on Dec. 17, Suffolk County D.A. John Pappas and Boston Police Commissioner Gross did not exonerate Ellis. Instead, they stated their beliefs that Ellis had a role in the murder, but a retrial of him was unlikely to succeed due to the fading memories of some witnesses, the unwillingness of other witnesses to testify, and "... the involvement of three corrupt police detectives to varying degrees in the [Mulligan homicide] investigation [that] has further compromised our ability to put the best possible case before a jury."
Ellis's was convicted of the crimes at his third trial in 1995 after his first two trials ended in mistrial due to hung juries. His convictions were overturned in 2015 by Suffolk Superior Court Justice Carol Ball, who found “justice was not done” at his trials due to (1) the bias of three investigators of Mulligan’s homicide who were involved in contemporaneous crimes with the victim, and (2) prosecutors’ withholding of discovery materials from the defense. When the surprise announcement of his dropped charges was made — with no notice given to either him or his attorneys — Ellis was awaiting his fourth trial, scheduled for September 9, 2019. The D.A.’s Office issued a press release explaining Pappas’s decision to vacate the charges.
As a longtime advocate for Sean Ellis, I do not believe he was Det. Mulligan's assassin or that he assisted the shooter in the robbery and murder. My opinions are based on facts I have learned over 23 years of dedicated research into the Ellis case. In the essay that follows, I take issue with (1) two outright untruths contained in the D.A.'s press release (reiterated in his public statement) and (2) the D.A.’s assessment of the quality of key evidence used against Ellis.
The 1993 murder of Boston Police Detective John Mulligan was a brutal crime that rocked the city and caused great pain to Mulligan's family. Mulligan was shot point blank, five times in the face, between 3:30 and 3:45 A.M. while sleeping in his SUV parked outside the Roslindale Walgreens as he worked a private security detail. Boston Police Commissioner William Bratton assembled a task force of over 50 of his "best and brightest" officers to find the killer or killers of the uniformed detective.
Because of the gangland-style shooting ("a message" commentators said) and Mulligan's heavy-handed policing methods, investigators at first presumed a revenge motive and began probing his police work. But within ten days they halted the investigation, saying they'd found the murderers: two teens, Sean Ellis, 19, and Terry Patterson, 18, who'd shopped in the drugstore that morning, saw the detective asleep, and in a random "crime of opportunity" shot him in order to steal his service revolver as a "trophy."
TWO UNTRUTHS IN THE DISTRICT ATTORNEY’S PRESS RELEASE
UNTRUTH # 1:
Suffolk County D.A. John Pappas cited as one of his chief reasons for dropping the Ellis charges "... the involvement of three corrupt police detectives to varying degrees in the investigation ... Detectives Kenneth Acerra, Walter Robinson, and John Brazil disgraced themselves and tarnished their badges in a wide variety of criminal conduct unrelated to this case – the extent of which was unknown to prosecutors or defense counsel in 1995."
THE FACTS: This statement is true … but incomplete. After the Ellis trials, it was discovered that three members of the Mulligan homicide task force -- Detectives Kenneth Acerra, Walter Robinson, and John Brazil -- were engaged with others from their Area E-5 station house in a lucrative scheme of drug dealer robberies that was in full swing at the time of Mulligan's murder. The men falsified search warrants in order to gain access to apartments and "under the color of law" (i.e., in the guise of making proper drug busts) seized drugs and money. But they kept most of the loot for themselves, turning in only small amounts and declaring the false numbers on their police reports. Once exposed, Brazil turned evidence on Acerra and Robinson in exchange for immunity from prosecution, and the two pleaded guilty to multiple counts of perjury and robbery and served three years in federal prison.
D.A. Pappas went on to characterize Acerra, Robinson, and Brazil’s admitted corruption as “unrelated to this case” and further, "Based on the facts and circumstances known to us, we don't believe Det. Mulligan was involved in [Acerra, Robinson, and Brazil’s] schemes."
THE FACTS: Neither statement is accurate. Attorney Rosemary Scapicchio brought forward new documentary evidence in her 2013 retrial motion for Ellis that showed victim John Mulligan was indeed an active member of the men's perjury-and-robbery enterprise, to wit:
· 1996 federal grand jury testimony of Boston drug dealer Robert Martin, who described in detail how Mulligan, Acerra, Robinson, and two other Area E-5 detectives robbed his two apartments of large amounts of drugs and money 17 days before Mulligan's murder, and
· a Boston Police Internal Affairs investigation, ongoing at the time of Mulligan's 1993 death, into credible allegations that he and Walter Robinson robbed a Brighton drug dealer together at gunpoint in 1991.
Thus, the men’s criminal conduct in other cases was, in fact, inextricably linked to the Mulligan investigation. The co-mingling in crimes of perjury and robbery by the victim and these three investigators of his homicide presented a conflict of interest for Acerra, Robinson, and Brazil as they served on the Mulligan task force. The three handled most of the evidence used against Ellis. Their potential bias is why Judge Carol Ball overturned Ellis's murder and robbery convictions in 2015, and why the Mass. SJC unanimously upheld her decision in 2016. [Click HERE for the courts’ reasoning (11).]
Further, in asserting that Mulligan was NOT involved in the men's "schemes," Pappas ignores documentary evidence of Mulligan's involvement in drug robberies with Acerra and Robinson — evidence that has been affirmed by two Massachusetts courts.
That Pappas ignores this documentary evidence is a stance I find unconscionable by a top Massachusetts law enforcement official.
Pappas stated, "The trial prosecutors, Phyllis Broker and Jill Furman, were the model of professionalism at every stage of the proceedings. They hid nothing from the jury or the defense.”
THE FACTS: Both Suffolk County Justice Carol Ball in 2015 and the Mass. Supreme Judicial Court in 2016 found prosecutorial misconduct in Sean Ellis's 1995 trial -- specifically, that Chief Prosecutor Phyllis Broker withheld from Ellis's trial lawyers multiple, detailed police hotline tips and also the infamous tip related by Boston Det. George Foley about Boston officer Ray Armstead, Sr. (now deceased) killing Mulligan because of a “beef.” This withholding of discovery materials was a secondary reason the courts overturned Ellis's convictions.
In the 2014-15 Ellis evidentiary hearings, prosecutors argued that these materials were turned over to the defense -- but they lost. Judge Ball found the prosecution’s arguments "unconvincing," citing sloppy paperwork riddled with duplication and omissions. Indeed, Phyllis Broker, testifying remotely by video, said she had "no specific memory" of particular documents in the Mulligan case and could only describe her "general practice" in handling discovery materials.
In stating that these prosecutors did NOT withhold the tips police received about third-party suspects, Pappas again willfully ignores the findings of two Massachusetts courts
THE QUALITY OF EVIDENCE IN THE CASE
I take issue with several statements in the Suffolk County D.A.’s 12/17/18 press release regarding the evidence used against Ellis. My alternative viewpoints, described below, derive from my years of research into court documents and discovery materials, including police reports, taped interviews, and grand jury transcripts. At first my access (1998-2003) was courtesy of Ellis’s trial attorneys, Norman Zalkind and David Duncan; subsequently, I dedicated many years of volunteer efforts (2006-present) assisting attorney Rosemary Scapicchio in researching and preparing Ellis’s 2013 retrial motion. Additionally, between 1998 and 2007 I conducted interviews of multiple individuals involved in the case.
D.A. Pappas states that, “The trial evidence and testimony in 1995 proved Mr. Ellis’ guilt beyond a reasonable doubt," and jurors found "the case against him overwhelming."
It's true that Terry Patterson was quickly convicted of Mulligan's robbery and murder in 1995, largely based on his fingerprints having been found on the exterior Mulligan's SUV -- or so police said. But the case against Patterson subsequently fell apart, and he was freed from prison in 2006. (More on the fingerprint evidence below, in comments about the Commonwealth’s nolle prosequi filing.) [Click HERE to learn why Patterson is now free (1).]
Convicting Ellis proved problematic for prosecutors and took three trials -- with his first two jury panels unable to conclude he was in a joint venture with Patterson, as prosecutors argued. Ellis’s first jury voted 9 to 3 to acquit; the second panel voted the reverse, amounting to an even split of jurors in the first two trials (12 to 12) over confirming Ellis’s guilt beyond a reasonable doubt.
It’s important to note that jurors in Ellis’s third trial heard no new evidence and, in fact, LESS evidence than the first two panels had heard, since prosecutors did not call two previous witnesses whose stories had complicated their case theory in trials one and two. [Click HERE to learn the evidence that jurors in trial three did NOT hear that the two previous panels did hear (2a).]
Pappas points out that “...Mr. Ellis was near the scene of the crime moments before it was committed... and fled the scene in its aftermath."
Ellis did shop at 3:00 A.M. at the Roslindale Walgreens the morning of the murder (which occurred 30-45 minutes after his errand), and he freely admitted this to police, speaking to them voluntarily without a lawyer present and directing them to the LUVs diapers he purchased, and their timed -and-dated receipt. He also gave detectives Terry Paterson’s cell phone number to confirm his story. Ellis's attorney, Rosemary Scapicchio, says, “He puts himself right in the middle of a homicide of a detective. Who would do that if they actually committed a crime? … Now they have someone who they can hold out to the public who actually admits he was there.” Scapicchio notes that Det. John Brazil led Ellis’s questioning session and describes Brazil as “desperate” to make a quick arrest to halt the investigation. (Brazil later admitted to felonies he committed in a crime ring then being perpetrated by other investigating officers —that included homicide victim John Mulligan [explored below])
--Meanwhile, a man who lived near Walgreens, Victor Brown, saw two men in their 20's park in front of his house at “exactly 3:20 A.M.on his digital clock” that morning. One man was tall and thin and wearing a white-collared shirt; the other was shorter and stockier and dressed all in black. Brown saw the men go into the woods and, moments later, head onto a path in the general direction of Walgreens.
Prosecutors theory: The men were Sean Ellis and Terry Patterson, and they walked back to Walgreens intent on killing Mulligan -- to be seen by a second witness (Ivan Sanchez) as they came OUT of the woods on the Walgreens side. But the times of the Brown’s and Sanchez’s sightings did not jibe -- indeed, they were backwards... [Click HERE for details (3)]
...and the clothing worn by the tall man (presumably Ellis) as described by Brown did not match the clothing worn by either of the men whom Ivan Sanchez sawcoming out of the woods near Walgreens (the Sanchez sighting is described in more detail below). [Click HERE for details (4a)]
--Twelve hours after the murder, Walgreens shopper Rosa Sanchez told police that when she came out of the store, her husband Ivan, who was waiting in his car, told her he saw two men coming out of the woods and it "scared" him. She asked him if one of them was the tall man she'd seen earlier by the cop’s car (indicating Ellis, who she described as now standing at the payphones outside Walgreens with a second, shorter man). Ivan said, "Only the short one." Rosa then AGREED with the interviewing detective that that added up to a total of THREE men outside Walgreens. [Click HERE to read pertinent excerpts from Rosa Sanchez’s 9.26.93 police interview (10).] THE THIRD MAN TIP WAS NEVER FOLLOWED UP BY POLICE…and:
— IVAN SANCHEZ'S REPORT TO ROSA THAT SEAN ELLIS WAS NOT ONE OF THE 2 MEN HE SAW WALK OUT OF THE WOODS (AS PROSECUTORS SAID) WAS WITHHELD FROM THE JURY WHEN THE PROSECUTOR OBJECTED TO IT AS "HEARSAY."
— IVAN SANCHEZ WAS NOT CALLED TO TESTIFY IN ELLIS’S THIRD TRIAL. Thus, the third, convicting jury was not confused by the 3:00 A.M. time of Sanchez’s sighting of two men leaving the woods — a full twenty minutes earlier than the roughly 3:25 AM time Walgreens neighbor Victor Brown put on his sighting of two men entering the woods from his nearby street. (Prosecutors said they were the same men.)
An alternative interpretation for Victor Brown's sighting of the two men (other than to commit a murder that no one witnessed) can be derived from the police reports: [Click HERE for the explanation Judge Ball opined jurors could find plausible. (12)]
--There were no eyewitnesses to the murder, and no physical evidence connecting Sean Ellis to victim John Mulligan, apart from a photo ID of Ellis made by the above-mentioned Walgreens shopper, Rosa Sanchez. Sanchez was a teenage family friend and relative of homicide investigator (and later convicted felon) Det. Kenneth Acerra (see“Untruth #1, above), and her ID was made under questionable circumstances: She was given two tries to make it. She first identified a different man and left the station, but moments later was ushered back in by Acerra and Walter Robinson. This time she selected Ellis’s photo immediately — from the unchanged photo array. [Click HERE for details of the unorthodox photo viewing sessions (5).]
Rosa Sanchez was the niece of the woman Acerra was living with at the time, with whom he had a child (who was, therefore, Rosa’s cousin).
Acerra DID NOT DISCLOSE HIS PERSONAL RELATIONSHIP WITH ROSA SANCHEZ for over a year — and did not do so until one of her family members mentioned their friendship with Acerra to prosecutors while preparing for the 12/94 motion hearing to disallow Sanchez’s photo ID as evidence.
The man Rosa first identified from the array —neither Ellis nor Patterson— was the SAME MAN her husband, Ivan, had identified from the same photo array several days earlier, rating his certainty a “7 out of 10.”
--The circumstances of Rosa Sanchez's coming forward to police the day of the murder were consistently murky — and changing. [Click HERE for details. (6)]
--At the trials, Rosa Sanchez was asked why it took her 20 minutes in Walgreens to buy one bar of Spring soap, and she told a story that conflicted with the account given to police by another Walgreens' shopper. [Click HERE for details (7)].
TO REITERATE: THE ONLY EVIDENCE TYING ELLIS TO DET. MULLIGAN WAS A FAMILY FRIEND AND RELATIVE OF ONE OF THE CORRUPT DETECTIVES WHO WAS AT THE TIME COMMITTING ROBBERIES WITH VICTIM JOHN MULLIGAN.
D. A. Pappas writes: "As the SJC concluded 18 years ago, there is no reliable evidence that Acerra, Robinson, or Brazil procured or produced false evidence in this case..."
--As detailed above (in the lead-in to Untruth #1), it was discovered after the trials that three members of the Mulligan task force -- Detectives Kenneth Acerra, Walter Robinson and John Brazil -- were engaged with victim John Mulligan (and others in their Area E-5 station house) in a lucrative scheme of drug dealer robberies operating at the time of Mulligan's murder (these are the three "corrupt police detectives" D.A. Pappas referred to, whose participation has compromised prosecutors' ability to portray a clean homicide investigation).
This conflict of interest on the part of men who handled a great deal of the evidence used against Ellis is why Judge Carol Ball overturned Ellis's murder and robbery convictions in 2015, and why the Mass. SJC unanimously upheld her decision in 2016. [Click HERE for the courts' reasoning (8a)]. Attorney Rosemary Scapicchio has argued that these men sabotaged the investigation, using a “manufactured” photo ID (by Rosa Sanchez, described above) and other methods, to quickly solve the case and deflect attention from their own crimes by pinning the murder on two teens (more on this below).
Pappas is citing the Dec. 2000 SJC ruling in which Ellis's first retrial motion was denied. But this ruling was superseded by the SJC's 2016 ruling, in which Chief Justice Ralph Gants specifically notes that at the time of the 2000 Ellis decision, the SJC did not know that victim John Mulligan was committing crimes with the three corrupt investigators of his murder -- putting these detectives' evidence-collection activities under a cloud and subject to scrutiny by future defense attorneys and jurors in this new light.
As to the "false evidence” “procured or produced" by the corrupt detectives, this issue was explored before two courts:
(1) At the Ellis motion hearings held in Suffolk Superior Court over 9 days in 2014-15. attorney Rosemary Scapicchio presented compelling arguments, supported by new evidence, that the Mulligan homicide investigation was riddled with Acerra, Robinson, and Brazil’s corruption and cramped by police incompetence. (The hearings are described in detail on this website's page, "Retrial Motion Hearings 2014-15").
A few examples:
--Robinson and Acerra were the first detectives to enter Mulligan's West Roxbury apartment after the murder. Mulligan’s girlfriend and her roommate, who lived in Mulligan’s condominium complex, told police that Walter Robinson removed money from the detective’s unit immediately after his murder — money never declared to the police department, Scapicchio pointed out. She believes the funds were illegal proceeds from drug robberies.
-Acerra “found” Det. Mulligan's personal cell phone in the center compartment of his SUV a week after the murder, while searching for a phone charger, he said. Crime scene technicians had scoured the vehicle within hours of the murder, noting such items as lifesavers, cigarettes, and paper clips in this same compartment, but did not find the phone. The phone had no fingerprints on it when Boston Sgt. Robert Foilb tested it, not even Mulligan's, which Foilb testified was "not unusual"; attorney Scapicchio alleges it was stripped of calls. [Click HERE for conflicting police stories of why Mulligan's phone was missed. (9)]
--A woman named Michele "Misty" Hagar, who had a sexual relationship with Mulligan and often visited him in his car, testified that two detectives (whom she couldn't identify) came to visit her after the murder, saying she was the last person called from Mulligan's cell phone. "So someone had those phone numbers," attorney Scapiccio pointed out.
—As described in detail above, Acerra and Robinson were directly involved in the photo ID made by Walgreens shopper Rosa Sanchez (who called Acerra “Uncle Kenny”). The partners drove Sanchez to the homicide unit, conferred with her privately outside after she’d identified another man, neither Ellis nor Patterson, and then ushered her back inside for a second look at the mug shots. This time she “immediately” chose Ellis’s photo in the top-left corner. Scapicchio believes the detectives coached Rosa Sanchez to identify Ellis.
(2) At the Mass. Supreme Judicial Court 2016 hearing of the Commonwealth’s appeal of Judge Ball’s 2015 ruling, attorney Scapicchio was asked by Justice Geraldine Hines about Acerra, Robinson, and Brazil's roles in the 50-man task force — in which “they were not calling the shots.” Scapicchio said the corrupt trio was involved "from beginning to end" in gathering evidence and recapped several key actions the detectives took:
· Dets. Acerra and Robinson were the first police officers to enter Mulligan's condominium after the murder, and two witness reported that Robinson removed money from Mulligan's coat closet, money he never turned in to the department.
· Dets. Acerra and Robinson and Brazil brought forward eyewitness Rosa Sanchez (a teen with family ties to Acerra) on the day of the murder, the only witness to tie Ellis to the victim.
· Dets. Acerra and Robinson were present at Sanchez's first photo ID session, when she pointed to a person who was neither Ellis nor Patterson. Sanchez identified Ellis at a second viewing of the photos moments later -- after speaking privately with Acerra and Robinson outside the building.
· Acerra subsequently got Rosa Sanchez and her husband relocated at the Commonwealth's expense from Humboldt Avenue, Roxbury, to a suburban apartment in Norwood.
· Det. John Brazil took Ellis's voluntary statement a few days after the murder.
· Det. Walter Robinson arrested Ellis.
Court documents filed by Scapicchio also state that:
Det. Kenneth Acerra and his Area E-5 supervisor, Sgt. Det. Lenny Marquardt (an unindicted co-conspirator in Acerra's ongoing robbery scheme), picked up a teenage friend of Ellis's and transported him to the station, where he confessed to hiding the guns in a Dorchester field on Ellis's behalf.
Det. John Brazil, saying he was tipped, directed police cadets to the Dorchester field where they found the two weapons.
Det. Acerra arrested Terry Patterson.
INVESTIGATIVE MISCONDUCT BEYOND ACERRA, ROBINSON, AND BRAZIL’S
Pappas stated that “In the 25 years since Det. Mulligan was murdered in cold blood, not one piece of evidence developed by prosecutors, defense counsel, or anyone else has pointed to anyone but Sean Ellis and Terry Patterson.”
--Scapicchio submitted (in her 2013 Ellis retrial motion) multiple FBI reports detailing the sordid misconduct of victim John Mulligan while in uniform, including shakedowns of merchants, drug dealers, and prostitutes, arguing that these activities suggested many other suspects with motives to kill Mulligan who were NOT investigated.
--Sean's trial attorneys were not told about -- and POLICE DID NOT FOLLOW UP -- any of the MULTIPLE DETAILED TIPS they received over their telephone hotline, several giving names and motives. The name "Armstead" was mentioned in three separate tips police received, but was never investigated. [Click HERE to read Mass. SJC Chief Justice Ralph Gants on why this was not only incompetent, but also plausibly corrupt (13).]
--Police also did not follow up the explosive tip conveyed by task force investigator Det. George Foley that a fellow officer killed Mulligan because of a "beef" over the detective's sexual harassment of his teenage foster daughter. Instead, Foley was disciplined for making the tip. [Click HERE to learn what befell Det. Foley after delivering his tip (14)].
—Police also did not follow up the mysterious “third man” Rosa and Ivan Sanchez reported seeing by the phone bank outside Walgreens (who was neither Ellis nor Patterson), nor did they follow up witness Joseph Saunder’s sighting of an African-American man wearing a white shirt who appeared to be acting as a lookout in the parking lot. (Recall that Walgreens’ neighbor Victor Brown described seeing a tall man wearing a white-collared outer garment walk back through the woods towards Walgreens just after 3:20 A.M.) Indeed, Saunders reported seeing “several” African-American men in the Walgreens parking lot at that hour.
To recap: Despite billing the Mulligan homicide investigation as the most intensive in the history of the department, police did not follow up ANY of the hotline tips they received, or any of the other tips cited above.
THE GUN EVIDENCE
Pappas states: "Mr. Ellis...possessed the murder weapon in the days that followed" the murder and "[his] defense at trial was that Mr. Patterson committed the murder and robbery alone, on his own initiative, while Mr. Ellis was buying diapers... [and] Mr. Patterson gave him the murder weapon and Det. Mulligan’s service weapon after he left the store...
“The murder weapon was recovered near Mr. Ellis’ house, with a fingerprint on its magazine that came back to Mr. Ellis’ girlfriend. With it was Det. Mulligan’s service weapon, stolen from his person …
"The most likely critical issue at a new trial, then, would not be whether Mr. Ellis was involved in Det. Mulligan’s homicide, but rather the level of his involvement with his convicted co-defendant, Terry Patterson.”
This opens up the most troublesome aspect of Ellis's defense, the gun evidence.
At the trials, Sean's Uncle David Murray testified that Sean told him that after he finished shopping inside Walgreens, Terry Patterson ran up to him outside, with bloody hands, and threw him two guns -- the murder weapon and Mulligan's stolen revolver -- saying, "I shot someone," and commanded him to hide the weapons. Murray testified that Sean was confused and overwhelmed and remained that way during the week after the murder, fearing he was being framed.
It is important to note that Sean himself did not testify to this account. Further, the uncle complained to his family that he was being squeezed by John Brazil (more on this below). At the time, Murray was on parole after having served 20 years at MCI Concord for armed robbery
Ellis's girlfriend, Letia Walker, testified under a grant of immunity from prosecution. The story Walker told was as follows:
· After spending the night of September 30 together in her home, she and Sean Ellis taxied to the Hyde Park apartment of his cousin, Tracey Brown, the morning of October 1, 1993 (five days after Det. Mulligan's murder) so Ellis could get fresh clothes. He had recently moved out of his mother's house and was staying with Tracy and her two children in their apartment. (Tracey's baby was the reason for the LUVs diapers Sean bought at Walgreens the morning of Mulligan's murder.)
· While Walker waited, Ellis went inside Brown's apartment and came out holding a backpack. They taxied to Walker's house, and inside Sean pulled his clothes out of the backpack -- along with two guns. He hid the guns under Walker's bedroom nightstand.
· Several days later, Curt Headen and Kevin Chisholm, friendsof hers and Sean's, came to her apartment. Headen (by himself) removed the guns from her bedroom and hid them in a nearby Dorchester vacant lot.
· When shown the recovered guns in court -- Mulligan's stolen service revolver and a .25-caliber pearl-handled gun that police said was the murder weapon -- Letia Walker agreed they were the two guns Ellis brought to her bedroom.
In their summary statements to the juries, Sean's trial attorneys argued forcefully that Sean had nothing to do with Mulligan's murder, and if he helped hide the weapons for Patterson after the crime, the crime was accessory after the fact, not joint venture in murder one. Sean was subsequently convicted on two counts of weapons possession in trial one and was sentenced to five to 25 years for each, to be served concurrently.
* * *
There are several problems with the gun story told at Ellis's trials:
1. Tracey Brown's apartment was an active crime scene on October 1, 1993. Brown and her sister, Celine Kirk, had been brutally murdered there the previous evening, as Brown's 2-year-old son and 10-month-old baby watched. [Click HERE to learn about the murderer (16).]
2. Detectives thoroughly searched Brown's apartment after the double homicide was discovered (the night of Sept. 30) and blocked access to the space with yellow crime scene tape.
3. As noted by the Mass. Supreme Judicial Court, when hearing the Commonwealth's appeal of Ellis's overturned convictions in 2016, it is difficult to imagine that Boston detectives would have overlooked two weapons in their search of Brown’s apartment.
4. Attorney Rosemary Scapicchio doubts that the fingerprint on the gun clip that police claimed was Walker's was actually hers and, had the Ellis case gone to trial four, planned to motion for a retesting of the evidence. [Click HERE to read about the Boston Police fingerprint unit’s lack of integrity during this period (17).]
5. Scapicchio believes the statements that Curt Headen and Kevin Chisholm, gave to police about Headen removing the guns from Walker’s bedroom and hiding them in the field were coerced. Both youths spoke on tape, and each parroted the story told by Letia Walker —the two using almost identical language. Headen’s interview in homicide was— at very least —facilitated (perhaps engineered) by corrupt detectives: He was driven to the station to make his gun-hiding "confession" by Det. Kenneth Acerra and his Area E-5 station supervisor, Sgt. Det. Lenny Marquardt (later an unindicted co-conspirator in the ongoing drug-robbery enterprise run by Dets. Acerra, Robinson, and Brazil). [Click HERE for this author’s take on the youth’s statements (15a).]
In July 1994, Kevin Chisholm was shot to death on Blue Hill Avenue, Dorchester; three months later, in October 1994, Headen was gunned down by two assailants as he washed his car outside his mother's Dorchester home. The killings eliminated their gun testimony (and cross-examination) from Ellis’s and Patterson’s trials.
5. John Mulligan's stolen Glock pistol and a pearl-handled, .25-caliber pistol, which police determined was the murder weapon, were found hidden under leaves by police cadets on October 7, 1993 -- on a tip brought in by Det. John Brazil, purportedly related to him by Sean's Uncle David. Murray. Scapicchio says, “The guns were absolutely planted" by corrupt police -- and she believes that both Letia Walker and Sean's uncle David were squeezed by police to tell their stories. For a retrial, the attorney intended to investigate "what the police officers did to get [Walker] to tell the story that she told." As noted above, she would also retest the gun clip, for she doesn't believe Walker's print was on it:
· Walker at the time was a young mother of an infant (not Sean's child) and, as Scapicchio wrote in her retrial motion, "A common police tactic was to threaten to get DSS to take a child if a witness did not say what the police wanted the witness to say." [Click HERE to read this author’s opinion on Walker’s possible coercion. (18).]
· Sean's uncle was on parole after serving 20 years for armed robbery. He told several family members that during this period he was being hounded by Det. John Brazil night and day, and that Brazil threatened to send him back to prison for parole violations "if he didn't cooperate."
· On October 2, 1993, FIVE DAYS BEFORE THE GUNS WERE FOUND IN THE DORCHESTER FIELD, Boston detectives quizzed John Mulligan's girlfriend and her roommate about a "pearl-handled gun" owned by Mulligan. HOW DID POLICE KNOW THE MURDER WEAPON HAD A PEARL HANDLE?
· Scapicchio cites witness reports that Det. Mulligan regularly wore a gun secreted in an ankle holster. If the pearl-handled murder weapon was indeed Mulligan's, HOW WOULD TWO RANDOM TEENS know this gun was under Mulligan's pant leg, and how would they procure it, to kill him? Police insisted the killer shot from outside the detective's SUV, through a small opening in the driver’s window, not from the passenger seat, as first theorized.
THIS MYSTIFYING DESCRIPTION OF THE PEARL-HANDLED MURDER WEAPON 5 DAYS AHEAD OF ITS FINDING, AND THE BIAS OF INVESTIGATORS ACERRA, ROBINSON, AND BRAZIL, CONSIDERED IN THE LIGHT OF THEIR ALREADY KNOWN INVESTIGATIVE IRREGULARITIES (MONEY TAKEN FROM MULLIGAN’S CLOSET, ACERRA’S SUSPICIOUS CELL PHONE “DISCOVERY,” THE TWO-TRY ROSA SANCHEZ PHOTO ID OF ELLIS), CAUSED SCAPICCHIO TO POSIT IN HER RETRIAL MOTION,
“THE NEW EVIDENCE RAISES A REASONABLE DOUBT AS TO WHETHER POLICE OFFICERS ORCHESTRATED THE GUNS BEING LINKED TO ELLIS.”
Not mentioned by D.A. Pappas in his summary of the key evidence against Ellis was the forensic evidence from the crime scene. This evidence has never supported prosecutors' theory of the case.
According to the Ellis trial testimony, Det. John Mulligan's body was found the morning of September 26, 1993, when a Walgreens clerk returned to the store after a coffee run and came upon Mulligan unresponsive in his vehicle at about 3:45 A.M. This same clerk had left for his errand fifteen minutes earlier, at 3:30 A.M, at which time he observed Mulligan reclining in his vehicle, apparently reading.
Boston Police officer Stephen Kelly responded to the scene moments after the 3:49 911 call came in from the Walgreens manager. He found Mulligan’s SUV parked “no more than 12 inches” from the edge of the sidewalk, near the payphones outside the drugstore. It had just begun to drizzle. “I worked out in Area E-5 my entire career with Detective Mulligan...I observed a gray ashen look to his face, and I also observed blood and brain matter on the left side of his head and on his forehead and eyebrows ... He was dressed in an orange police-style raincoat with a detective’s gold badge embroidered on the breast. "
Mulligan was reclined slightly in the driver’s seat, with his left hand behind his head and his body “pointed slightly to the right … looking towards the passenger side ... kitty-cornered in the seat ... offset in this direction ... I felt if I opened the driver’s side door, the detective may fall out and cause further injury.”
So Kelly tried the passenger door, but it was locked. “I immediately went to the driver’s side door and opened that as carefully as I could, in order that the detective would not fall out.” The driver's window was “down two and a half to three inches.”
He checked for a pulse and, finding none, called for assistance. Mulligan’s holster, clipped to the right side of his belt, was unsnapped and empty. His police walkie-talkie was still clipped to the left side of his belt.
Two EMTs arrived to the scene at 4:01 a.m.; behind them were the paramedics. They observed a number of actively bleeding gunshot wounds on the detective's head, the most evident being "a small round hole in the center of the forehead, just above the bridge of his nose.” He was bleeding from his right ear and mouth…,They determined that his wounds were made "front to back from a gun held within two inches of his face.”
As the ambulance roared off carrying Det. Mulligan to Brigham and Women’s Hospital, the medics noticed three more wounds on Mulligan’s face—a small round hole in his left eyebrow, another just above the center-forehead puncture, and a fourth “on the right side of the forehead in the temple area.” At 4:15 a.m. the ambulance arrived to the hospital bearing the lifeless detective.
The paramedics missed one of Mulligan’s wounds. Suffolk County Medical Examiner Len Atkins testified that a fifth gunshot “entered the body through the left nostril" and that any one of the five shots taken by the 5'11", 210-pound 52-year-old "by itself could have caused death." '
Det. Mulligan was found sitting in the driver's seat, his body angling "kitty-corner" towards the passenger seat, leaning against the driver's door to the extent that Officer Kelly resisted opening that door, lest he fall out.
Police claimed the killer fired the gun into Mulligan's face, point blank, by reaching through the slightly open driver's window (open 2-3 inches, said Kelly.)
It strains the imagination to conceive of a hand pushing a gun through this tight, 2 1/2-to-3 inch space, and then inflicting wounds on both sides of the detective’s turned-away face. Even if this were possible, the killer would have to hold the gun in his left hand. Sean Ellis is right-handed.
Because of the wounds, at first detectives theorized that the killer sat in the passenger seat and shot Det. Mulligan. They concluded the assailant was someone he knew, for the street-savvy detective would never let a stranger into his vehicle. Yet the passenger door was found locked.
After Patterson and Ellis were apprehended, police ruled out the “passenger seat” theory and settled on the "murdered from the outside" by "random teens" theory.
How did the killer manage to reach into the SUV from the outside, after the murder, and steal Mulligan’s service revolver without having the detective fall out the driver's door, given that his body was heavily leaning against it?
Attorney Scapicchio from the start has found the police theory of the crime incompatible with the forensic evidence.
Ellis case nolle prosequi: two main problems
Then-District Attorney John Pappas on December 18, 2018 submitted a nolle prosequi to the Courts in which he states the Commonwealth's intention to drop murder and armed robbery charges against Sean Ellis. In summarizing the case against Ellis in the document, Pappas makes two chief errors: (1) misleading omissions about the co-defendant's criminal case and evidence, and (2) untrue denials about the victim's known unlawful conduct.
(1) D.A. Pappas disingenuously describes co-defendant Terry Patterson's fingerprints as if they were viable (the SJC later ruled they were not, discussed below), to wit:
#6 Co-defendant Patterson's fingerprint was recovered from the driver's side window of Mulligan's vehicle.
#28 ... the defendant admitted to police investigators that he went to the scene with Patterson whose car was identified fleeing the area after the murder and whose fingerprint was recovered from Detective Mulligan’s vehicle...
D.A. Pappas goes on to summarize Patterson's legal history as follows:
#16 For reasons unrelated to [Ellis's] direct appeal and his subsequent new trial motions, the [Massachusetts] Supreme Judicial Court reversed the convictions against co-defendant Patterson [in December 2000] and ordered a new trial.
He then jumps to the fact that
#17 On February 7, 2006, Patterson pleaded guilty to a lesser included offense of manslaughter, armed robbery, and weapons charges .. [and was] released in May 2006 after having served approximately 13 years in custody.
D.A. Pappas omits that, between the above-two events, in December 2005 the latent fingerprints collected from Det. Mulligan's vehicle that police said were Terry Patterson's were disallowed by the Mass. SJC as evidence. The justices accepted defense attorney Jack Cunha's argument that the practice used by Boston Police to collect the latent prints was "constitutionally unreliable and not based on generally accepted scientific theory."
It was a stunning legal victory for Cunha with wide implications, for the court ruled that henceforth any latent fingerprints collected by this method would not be admissible evidence in the Commonwealth of Massachusetts.
This court decision, left unstated by Pappas, was the reason (also unstated) for Patterson's Feb. 2006 guilty plea: With the fingerprint evidence against Patterson now thrown out, Suffolk County prosecutors realized they would not be able to convict him in a retrial and offered him a deal: plead guilty to manslaughter, armed robbery, and gun charges and in return be credited for time served and released.
Patterson accepted the deal and was freed.
Notably, after Ellis's convictions were overturned in 2015 by Superior Court Justice Carol Ball (her ruling unanimously affirmed by the Mass. SJC in 2016), Suffolk County Prosecutors offered him the same plea deal.
Ellis declined, unwilling to accept blame for a crime he said he didn’t commit.
It's hard to overstate the risk Ellis took in doing this: Having already faced three juries, he chose to entrust his fate to yet a fourth rather than make "a false confession" in return for guaranteed freedom.
(2) D. A. Pappas willfully ignores the documentary evidence -- accepted by two courts -- regarding victim John Mulligan's active involvement in the drug-dealer robbery crime ring being perpetrated in the 1990s by three fellow detectives who investigated his homicide:
#27 The Commonwealth’s review of the documents related to the corrupt activities of former detectives Acerra, Robinson and Brazil as well as the Boston Police Internal Affairs and Anti-Corruption files related to Detective Mulligan supports the Commonwealth’s position at the motion for new trial, namely, that Detective Mulligan was not a knowing participant in Acerra, Robinson and Brazil’s corruption.
In direct contradiction to statement #27, Appellate attorney Rosemary Scapicchio, in her 2013 retrial motion for Ellis, showed the court documentary proof that victim John Mulligan was an active member of the men's perjury-and-robbery enterprise, to wit:
· 1996 federal grand jury testimony of Boston drug dealer Robert Martin, who described in detail how Mulligan, Acerra, Robinson, and two other Area E-5 detectives robbed his two apartments of large amounts of drugs and money 17 days before Mulligan's murder, and
· Report of a Boston Police Internal Affairs investigation, ongoing at the time of Det. Mulligan's 1993 death, into credible allegations that he and Walter Robinson robbed a Brighton drug dealer together at gunpoint in 1991.
· In addition, Scapicchio presented 10 separate FBI reports dating back to the 1980s alleging criminality by Det. Mulligan, including shakedowns of merchants (in a phony protection scheme), prostitutes, and drug dealers -- conduct she says was known to the Boston Police Department.
This co-mingling in crimes of perjury and robbery by Mulligan and three investigators of his homicide presented a conflict of interest for these detectives (Kenneth Acerra, Walter Robinson, and John Brazil) as they served on the Mulligan task force. The three handled most of the evidence used against Ellis. Their potential bias is the main reason Judge Carol Ball overturned Ellis's murder and robbery convictions in 2015, and why the Mass. SJC unanimously upheld her decision in 2016. [Click HERE for the courts’ reasoning (11).]