1998-2000: Retrial Motion #1
1998: Motion for a new trial
The March 1998 guilty pleas of Detectives Kenneth Acerra and Walter Robinson – for crimes related to their decade-long criminal scheme of falsifying warrants and robbing drug dealers – set the stage for defense attorneys Norman Zalkind and David Duncan, to write a retrial motion for Sean Ellis.
Thee attorneys submitted the retrial motion on September 30, 1998, based on the key roles that Acerra, Robinson, and John Brazil played in collecting evidence used against Ellis.
They asked,
How can you trust corrupt detectives who have a proven modus operandi of lying -- perjury on warrants and in court appearances –- with bringing forward impeccable evidence in the murder case of a close friend and colleague?
Since Acerra, Robinson, and Brazil’s crimes of perjury and obstruction of justice were committed concurrent with the Mulligan murder investigation and trials, they said, all of it was “newly discovered evidence that fact-finders needed to hear.”
They maintained the corrupt detectives’ pattern of falsifying evidence effectively snuffed out their credibility as investigators and as witnesses in Sean’s hearings and trials. Of particular note was Rosa Sanchez’s photo ID of Sean – a “failed identification” that got “salvaged” by the corrupt detectives. The attorneys called this “short work for these officers,” given their "unhesitating willingness to...use their office to achieve their personal objectives.”
Finally, the defense put on the table press reports of a 1991 drug robbery allegation against Robinson and Mulligan that was under investigation in 1993 (the year of Mulligan’s murder) by the Anti-Corruption Unit within Boston Police Internal Affairs.
The attorneys charged that prosecutors were well aware of Acerra and Robinson’s prior bad acts and “carefully and deliberately withheld the evidence in the discovery phase of the case.”
To support this allegation, they attached press reports of Detective Walter Robinson’s well publicized lying under oath and presentation of a doctored photo during an investigation into the conduct of fellow officer Adelberto Lio. Because of Robinson's false testimony and corruption of evidence, D.A. Ralph Martin, II had to drop drug charges against Lio.
Had the defense been able to use the information about Robinson's falsifying the Lio evidence in Ellis’s case, the attorneys argued, they could have impeached him at the pretrial hearing to suppress Rosa Sanchez’s ID, and indeed impeached “the entire police investigation of this case.”
Zalkind and Duncan said Chief Prosecutor Phyllis Broker was well aware of Robinson’s misconduct in the Lio case, which was why she had him and Acerra questioned on tape after Rosa Sanchez's bungled photo ID session.
1999: Retrial motion denied
In March 1999, Suffolk Superior Court Judge James D. McDaniel, Jr. (Ellis's trial judge) denied the Ellis retrial motion. He refused to speculate that the corruption of Acerra, Robinson, and Brazil in drug cases transferred to this, a murder case.
Judge McDaniel bought Phyllis Broker’s characterization of Acerra and Robinson and Brazil's crimes as a mere “money-making scheme…in narcotics cases." He said the defense had “offered absolutely no proof” that detectives rigged the Mulligan investigation– only their gut belief that “if the detectives lied in other cases then they must have lied in this one.”
Moreover, he ruled that Acerra and Robinson played only "minor roles in the Mulligan murder investigation,.
2000: Appeal
Attorneys Zalkind and Duncan wrote a 90-page brief appealing the Ellis retrial motion's denial. They submitted the appeal to the Massachusetts Supreme Judicial Court (SJC) on Valentine's Day 2000.
David Duncan told the Boston press,
"Those guys (Acerra and Robinson) had a modus operandi of conducting their business which involved manufacturing evidence to go in and search places and lying about things they found ...
Do you think they were going to change their spots and suddenly become clean cops just because they were on a homicide investigation?"
Among the points Duncan and Zalkind raised:
A third trial for Ellis violated his right against double jeopardy. A third trial was not a "manifest necessity." Rather, it resulted from confusing and "turgid" instructions given to jurors by the trial judge on the issue of joint venture, hindering their deliberations.
The defense was barred from questioning Walgreens witness Evony Chung about having her outstanding drug charge dropped and having her confiscated $3580 returned. They charged that these were rewards for Chung’s adjusting her testimony about her arrival times at Walgreens over the course of Sean's three trials – to better fit the Commonwealth's timeline.
The defense was also denied the ability to confront Rosa Sanchez in court with the man whose photo in the photo array had brought her to tears. Saying this this man had stalked her, she said she misidentified Ellis in her upset and haste to leave the station. The lawyers pointed out that during a subsequent court proceeding, Sanchez was unable to point out this "stalker's" photo from the same array, demonstrating her unreliability as an eyewitness.
In September 2000, David Duncan argued the appeal before the Massachusetts Supreme Judicial Court. Sean Ellis was not permitted to attend the session.
2000: Appeal denied
In December 2000 the Massachusetts Supreme Judicial Court denied Sean Ellis’s appeal.