RETRIAL MOTION #2 2013
"It cannot be said with any confidence that justice was done." -- Boston defense attorney Rosemary Scapicchio, speaking about Sean Ellis's 1995 trial.
Pictured: Defense attorney Rosemary Scapicchio, well known in Boston for tackling tough post-conviction legal challenges and winning.
Attorney Rosemary Scapicchio submitted a new retrial motion on behalf of Sean Ellis in March 2013. (His first such motion was submitted by his trial attorneys, Norman Zalkind and David Duncan, in 1998 but was denied, as was their subsequent appeal.)
Ellis reached out to attorney Scapicchio in 2003 after learning of her successful murder-conviction appeal for the wrongfully convicted Shawn Drumgold, another African-American man from Dorchester. She agreed to become Sean Ellis's appellate attorney and almost immediately began filing Freedom of Information Act (FOIA) requests to local and federal agencies for documents pertinent to the Mulligan homicide investigation.
It took eight years for the documents to begin trickling in. They were worth the wait.
The new Ellis motion centered on exculpatory evidence unearthed through FOIA:
- Victim John Mulligan was known to his superiors as having a long, multifaceted history of corruption that suggested suspects who were never pursued;
- Mulligan was an accomplice in a criminal scheme of drug dealer robberies and perjury that later brought down three of his detective friends, Kenneth Acerra, Walter Robinson, and John Brazil. All three men were investigators of Mulligan's murder, raising questions about their motives and conduct during the probe. (Website author's note: It was my research, while working with Sean's attorneys, that uncovered Mulligan's role in the robbery of Boston drug dealer Robert Martin perpetrated 17 days before the detective's Sept. 26, 1993 murder.)
- Credible tips were not pursued by Boston Police investigators, including information from a member of the Boston force that a fellow officer was behind the murder.
Scapicchio argued that all of this information should have reached jurors' ears,
but was withheld from Ellis's trial lawyers.
Attorney Zalkind filed a supporting affidavit to the Ellis retrial motion enumerating 21 points of pertinent information the Commonwealth withheld from the defense team, stating: "If I had been provided this exculpatory evidence...I would have filed additional discovery motions, investigated additional suspects, investigated Mulligan, and used the exculpatory evidence to raise a reasonable doubt at trial."
A miscarriage of justice?
Questions raised in the Ellis retrial motion:
Did the woman seen in Mulligan's car play a role in his murder?
FBI documents unearthed and cited by attorney Scapicchio reveal John Mulligan's practices of extorting retailers for bogus “protection" and shaking down drug dealers and prostitutes, demanding both money and sexual favors. Scapicchio believes this sordid history casts new light on an animated conversation Mulligan was seen having with an unidentified woman in his passenger seat within the hour of his murder.
Was the pearl-handled gun planted?
A pearl-handled .25-caliber gun was found hidden under leaves in a Dorchester field, along with Detective Mulligan's service revolver, and police claimed it was the murder weapon based on bullet analysis. But Attorney Scapicchio wants to revisit the Commonwealth’s ballistics evidence, for studies completed by the National Academy of Sciences after the trials cast doubt on the reliability of "identifying tool marks" on recently manufactured bullets. Moreover, she has uncovered a police transcript showing that, five days before this weapon was unearthed, detectives specifically asked John Mulligan’s girlfriend and her roommate whether "John had a pearl-handled .25-caliber gun.” How did police know the gun's description ahead of time? Was it Detective Mulligan "drop" gun, the weapon he reputedly wore strapped to his ankle? Did someone plant this gun in the field?
Was another Boston officer behind Mulligan's slaying?
"The Boston Police Department withheld and suppressed evidence suggesting that a fellow police officer was the real killer of Det. Mulligan," Scapicchio wrote. "Mulligan was killed to keep him from talking" --presumably about the drug-robbery scheme that was netting him and other corrupt officers large sums of cash. Mulligan's behavior was becoming "volatile," she noted. He was "failing to keep a low profile while the group was ripping off drug dealers...[and his] alleged actions with prostitutes and young black girls, including an alleged rape of [one officer's] informant, were drawing too much attention." She found these motives compelling.
Did corrupt cops falsify evidence?
The crux of Scapicchio’s motion rests on a revelation, buried in grand jury testimony from the 1996-97 federal probe of Boston Police corruption, that John Mulligan robbed two Commonwealth Avenue apartments leased by Boston drug dealer Robert Martin three weeks before his murder, in concert with his friends, Detectives Kenneth Acerra and Walter Robinson (who later pleaded guilty to over 40 federal counts of robbery and perjury and did prison time).
This criminal link of Mulligan with Acerra and Robinson puts meat on Ellis's trial attorneys' 1998 retrial argument, showing motive for the corrupt detectives to tamper with evidence.
At the very least, the finding calls for further scrutiny
of the evidence these detectives brought forward against Ellis:
- Did Detective Acerra take Mulligan's phone and clean it up?
Mulligan's cell phone, reported missing from his SUV immediately after his murder, was “discovered” a full week later in the vehicle’s center console by Detective Kenneth Acerra, in what police said was a second search of the vehicle (even though crime scene technicians had inventoried the vehicle and failed to find it). Did Acerra take it, wipe it clean, and put it back?
- Did Detectives Acerra and Robinson and Brazil manufacture a witness?
Within twelve hours of the murder, Acerra, acting with Detectives Walter Robinson and John Brazil, brought forward as a witness the teenage Rosa Sanchez -- coincidentally, the niece of Acerra’s live-in girlfriend and cousin to his child. Sanchez claimed to have been at the Roslindale Walgreens at the hour of Mulligan's murder and, about 45 minutes beforehand, saw a man peering into the detective's SUV as he slept. She needed two tries to identify Sean Ellis from police photos as that man: In her first viewing she identified another man. But after having a weepy, private chat with Acerra and Robinson outside the building, she was ushered back in by the two detectives and in a second viewing of the unchanged photo arrays immediately pointed to Sean.
This photo ID was admitted as evidence, making Rosa Sanchez the only witness to tie Ellis to Mulligan.
Fearing that their joint crimes with Mulligan might be discovered during the intense murder probe, did the corrupt detectives "solve" the case quickly by using Sanchez? (Further issues regarding Sanchez's legitimacy are raised under "Murder & Investigation 1993" on this website.)
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"It cannot be said with any confidence that the results of any of the three trials would have been the same if the jury had heard the newly discovered evidence regarding Mulligan's criminality, the evidence of other viable suspects, the report that [at least] one police officer believed Mulligan was killed by another officer, and the evidence linking Mulligan to the crimes of [Detectives] Acerra, Robinson, and Brazil..." Scapicchio wrote in her Ellis retrial motion.
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Text of article:
Dorchester man seeks new trial, citing withheld evidence, police corruption
By Elaine A. Murphy, Special to the Dorchester Reporter
Jan. 16, 2014
A Dorchester man serving a life sentence for a cop killing 20 years ago – a crime he says he didn’t commit – may yet have a chance for a new trial and freedom. Sean K. Ellis, arrested in 1993 at age 19, was one of two teenagers convicted of putting five bullets into the face of Boston Detective John Mulligan -- “to get his gun for a trophy,” prosecutors said. The other youth, Terry Patterson of Hyde Park, then 18, was freed from prison in 2006 after a ruling by the Massachusetts Supreme Judicial Court discredited fingerprints that police claimed were his.
Boston defense attorney Rosemary Scapicchio, known for tackling tough post-conviction legal challenges, including the flawed first-degree murder conviction of Dorchester’s Shawn Drumgold, has submitted a retrial motion for Ellis centered on exculpatory information she has obtained through the Freedom of Information Act, evidence she claims was withheld from his trial lawyers. According to Scapicchio’s motion, the exculpatory evidence “links Mulligan to various crimes, establishes the existence of multiple third-party suspects, and reveals that some members of the Boston Police Department believed that Mulligan was actually killed by another police officer and not by a young innocent black teenager named Sean Ellis who happened to be out buying diapers.”
The story began in September 1993 with the pre-dawn assassination of the 52-year-old detective as he slept in the driver’s seat of his SUV, which was parked outside the Roslindale Walgreens he was paid to protect. Someone either fired through his partly open window or climbed into his passenger seat to make the kill. Officially branded a “problem officer” by the Boston Police Department the year prior, Mulligan had a rough policing style that churned up multiple enemies and lawsuits over his 27-year career. Investigators initially began combing his police work for individuals bent on revenge, yet within days they netted teenagers Ellis and Patterson and re-labeled the assassination a random crime of opportunity, prompted when the youths happened upon the sleeping detective and decided to steal his gun. Many observers remained skeptical about the police account: Why would teens kill a uniformed detective so brutally, in gangland style, on a motive so slim?
FBI documents unearthed and cited by Scapicchio in her motion point to Mulligan’s longstanding history of corruption, including the alleged extortion of retailers for bogus protection and the shaking down of drug dealers and prostitutes, all of which, she argues, generated multiple suspects who were never pursued. Scapicchio links the revelation of Mulligan’s history of sordid conduct with prior “evidence that Mulligan was seen arguing with a girl in his car shortly before his murder,” and concludes, “based on what we now know from the new evidence, the girl in the car is very relevant. … [and] it cannot be said with any confidence that [she] was not somehow involved in his death.”
Scapicchio’s motion also cites FBI reports that document credible tips ventured by two Boston police officers that a “named” fellow officer was responsible for Mulligan’s killing. Not only were these suspicions suppressed, she notes, but one officer was also disciplined for voicing them. A matching tip came in from a civilian who’d recently been arrested by Mulligan and his partners, complete with the name and motive of the suspected Boston officer. This tip, too, was ignored, Scapicchio writes.
Ellis’s trial lawyer, Norman Zalkind, filed a supporting affidavit with the retrial motion, enumerating 21 points of information he deems pertinent that he maintains the Commonwealth withheld from the defense and stating, “If I had been provided this exculpatory evidence prior to trial, I would have filed additional discovery motions, investigated additional suspects, investigated Mulligan and used the exculpatory evidence to raise a reasonable doubt at trial. Mulligan’s involvement in illegal activities meant that many people had motives to harm him.”
The crux of Scapicchio’s argument for a retrial rests on testimony in federal grand jury proceedings that Mulligan robbed two Commonwealth Avenue apartments leased by a Boston drug dealer three weeks before his murder, working alongside two detective friends, Kenneth Acerra and Walter Robinson. (Acerra and Robinson later pleaded guilty to more than 40 counts of such robberies and did prison time.) The relevance for Ellis is that Acerra and Robinson served on the task force investigating Mulligan’s murder. As partners in crime with Mulligan, they had a conflict of interest, Scapicchio asserts, that could well have colored their motives and calls for further scrutiny of the evidence they brought forward.
Citing legal precedent, Scapicchio further argues that although Acerra and Robinson hid their misconduct, they were “members of the prosecution team for discovery purposes...[and as such] their knowledge is imputed to the prosecution, and the exculpatory evidence should have been turned over to the defense.”
The jury never heard the full story of the widespread police corruption and its links to Mulligan and his cohorts, she repeatedly notes in her motion, and if they had, she adds, they would have doubted that Ellis and his friend carried out the crime: “Ultimately, the withheld evidence makes it impossible to say that justice was done.”
From the outset, the Mulligan murder investigation was fraught with allegations of misconduct. First, Mulligan’s cell phone, reported missing from his SUV after the murder, was “discovered” a week later in the vehicle’s center console by the aforementioned Detective Acerra in what police characterized as a second search of the vehicle. That explanation resulted in Acerra being yanked from the investigation by the chief prosecutor; he subsequently was put back on the job after his union pushed for his reinstatement.
Next, Acerra, acting with Detectives Robinson and John Brazil, brought forward a teenaged witness named Rosa Sanchez, coincidentally, the niece of Acerra’s live-in girlfriend and cousin of their child. Sanchez testified that when she stopped at Walgreens at 3 a.m. for a bar of soap on the morning of the murder, she saw an African-American man peering into the sleeping Mulligan’s car window. She identified Ellis from police photos, but it took her two tries to make the ID, according to a detective’s testimony at a pre-trial hearing called to examine the circumstances. In her first attempt, she selected another man – neither Ellis nor Patterson – and left the homicide unit. She then sat outside in Acerra’s private car with him and Robinson, and by several accounts, she was weeping. Five minutes later, she was back inside, pointing to Ellis’s photo. On this basis, his defense attorneys, Norman Zalkind and David Duncan, protested the ID as “tainted.” Nonetheless, it was admitted as evidence.
Sean Ellis and Terry Patterson pleaded not guilty. Patterson was convicted readily after prosecutors produced fingerprints they said were his from Mulligan’s car door. But Ellis’s conviction was hard-won. Speaking voluntarily to police, he admitted riding to Walgreens in Patterson’s car after a party, but said he only shopped for diapers and had nothing to do with the murder. Police later found a box of Luvs with their Walgreens receipt in his cousin’s apartment.
No physical evidence linked Ellis to the crime scene, and, despite Sanchez’s photo ID, and despite his attorney’s admission that he and other friends helped hide guns for Patterson, two back-to-back juries failed to conclude he was in a murderous joint venture with Patterson. A half-year later, and with no additional evidence brought to bear on the case, a third jury convicted Ellis of murder one in September 1995 and sent him to prison for life without parole.
Just five months after Ellis’s conviction, Mulligan’s friends and task force investigators Acerra and Robinson, along with their protégé, John Brazil, were exposed as having perpetrated a decade-long scheme of robberies of drug dealers and illegal immigrants based on falsified search warrants. Acerra and Robinson were ultimately stripped of their badges and pleaded guilty to federal charges; Brazil was granted immunity in exchange for his cooperation and later retired.
That admitted felons with ties to Mulligan were instrumental in convicting Ellis prompted attorneys Zalkind and Duncan to mount a retrial motion for him in 1998, but the motion was denied when the judge refused to speculate that the detectives’ corruption in drug cases transferred to a murder case, despite their extensive perjury on warrants and in court.
Now, 16 years after that failed retrial bid, Scapicchio, armed with new information, adds meat to Zalkind and Duncan’s 1998 retrial argument, maintaining that Mulligan’s criminal link with Acerra and Robinson gave the corrupt detectives a plausible motive to manufacture evidence: The intense, ongoing probe of Mulligan’s police work threatened to expose their joint crimes and double lives. Enter Rosa Sanchez, whom Acerra, Robinson, and Brazil brought forward within twelve hours of the murder and whose seemingly reluctant ID of Ellis led to his arrest and halted the investigation into other suspects.
At the time, Sanchez lived with her husband Ivan in his mother’s rundown apartment on Humboldt Avenue in Roxbury. Her transcript at Hyde Park High School shows a dismal record of failure. Five months before she became a Mulligan-case witness, an April 1993 police incident report shows a 911 medical emergency call made by Ivan Sanchez from their apartment, with Rosa subsequently rushed by ambulance to Boston’s Brigham and Women’s Hospital having ingested an “unknown quantity” of “unknown pills.”
Was a vulnerable Rosa Sanchez manipulated by corrupt detectives, to ensure a conviction? Scapicchio wants that question revisited. Defense attorney Norman Zalkind didn’t mince words at trial. Calling the nineteen-year-old “possibly troubled,” he said, “She’s putty. She will say anything.”
Sanchez’s fortunes improved dramatically after she identified Sean Ellis. The couple was relocated, at the Commonwealth’s expense, to a garden apartment in Norwood, where Rosa enrolled in high school. (According to school records, she never attended class and was dropped from the roster.)
Scapicchio also notes that another prosecution witness had her pending drug charge dropped and $3,580 returned – money confiscated from her underwear during her arrest – after she modified her times of shopping at Walgreens in a way that buttressed Sanchez’s account.
Scapicchio also wants the Commonwealth’s ballistics evidence scrutinized anew, noting that studies completed by the National Academy of Sciences after the trials cast doubt on the reliability of “identifying tool marks” on recently manufactured bullets. Moreover, she has uncovered a police transcript showing that detectives questioned John Mulligan’s girlfriend’s roommate about a “pearl-handled .25-caliber gun” – the exact description of the purported murder weapon – five days before the weapon was found in a Dorchester field. Scapicchio is asking: How did police know about the gun? Was it Mulligan’s own? Was it planted?
By the time of Ellis’s arrest in the Mulligan case, he’d had “a few run-ins with the law,” he admits in a letter he recently sent to the Urban League, American Civil Liberties Union, NAACP, and a dozen other social justice organizations, seeking their help. But he was never convicted of any crime, let alone a violent crime. For the past 20 years, he has been a model prisoner, rising in status through the system and earning certification as a legal assistant via a correspondence course. Now 39, he is one of an elite group of inmates chosen at medium-security MCI Norfolk to counsel at-risk youth.
During those 20 years Sean Ellis has continued to insist that he played no role in Mulligan’s slaying, but unless he can win a fourth jury trial – and then win the jurors over – he will likely die in prison. Will Scapicchio’s arguments, and the many troubling questions and inconsistencies in the case that she has laid bare, be enough to grant Sean Ellis a fourth trial?
That is the question for Suffolk Superior Court Judge Carol S. Ball.