December 10, 2014

“Ellis case hearings concluded; next: arguments, judge’s ruling”

An edited version of this report by Elaine A. Murphy appeared in the 12/18/14 Dorchester Reporter.

Evidentiary hearings in the retrial motion of Dorchester resident Sean K. Ellis, convicted in 1995 of the 1993 murder of Boston Detective John Mulligan, wrapped up last week with the testimony of retired Boston Sgt. Robert Foilb, who inventoried the victim’s rented Ford Explorer a few hours after his murder.  Ellis’s attorney, Rosemary Scapicchio, grilled Foilb about his failure to find Mulligan’s personal cell phone in the vehicle’s center compartment between the front seats. The phone was found there six days later in a “second search” of Mulligan’s vehicle by Det. Kenneth Acerra, a friend of the slain detective – a claim that Scapicchio calls fraudulent and that at the time sparked a feud between police and prosecutors.

Background

The murder occurred on Sunday, September 26, 1993, in the predawn mist outside the Roslindale Walgreens on American Legion Highway.  Mulligan took five bullets in the face as he slept in the SUV parked outside the store during his private security detail. His killer crept away unseen, bearing the detective’s service pistol and also his cell phone -- or so it was thought.

Two years later, Terry Patterson and Sean Ellis, both teenagers at the time of the crime, were separately convicted of joint venture after prosecutors convinced their juries they plotted to kill Mulligan to steal his gun as a “trophy.”  Both youths maintained their innocence, and Patterson was freed from prison in 2006 after fingerprints that police claimed were his on Mulligan’s car window were discredited as scientifically inaccurate. 

Sean Ellis’s case was reopened this year after Scapicchio filed a retrial motion citing third-party suspects she claims were not disclosed to Ellis’s trial attorneys, and newfound criminal ties among the victim and three investigating detectives.

Mulligan’s cell phone: missing, then “found”

The 911 call reporting Mulligan’s murder was logged in at 3:49 a.m., and Sgt. Foilb arrived at Walgreens at 8:30 a.m. to secure the vehicle. After it was towed to the D Street police facility in South Boston, he made an exhaustive inventory of its contents, listing several small items he found in the center compartment, among them 9 Dunkin’ Donuts napkins, 6 small pieces of plastic, a key chain, a Panasonic battery, sunglasses, and open pack of Lucky Strikes. No cell phone.

Knowing that Mulligan carried a phone, police declared it stolen, but asked the press not to report this in hopes it might lead to the killer.

Six days later, on October 2nd, the victim’s close friend and Area E -5 colleague, Detective Kenneth Acerra, initiated another search of the vehicle at D street, saying he wanted to find Mulligan’s cell phone charger.  Acerra said he came across the missing cell phone in a separate “secret compartment” within the center console.  The report of the phone’s recovery – not written until four months later, on Feb. 3, 1994 -- stated it was in the vehicle all along, but no one knew anyone was looking for it.

Mulligan had purchased this cell phone plus three others to share with Acerra and another station-house colleague, Detective John Brazil, under the same contract.  It was later revealed that Acerra and Brazil were involved in drug dealer robberies together, along with Acerra’s longtime partner, Walter Robinson.

Scapicchio’s theory (confirmed by federal grand jury testimony in 1997-98) is that Mulligan was involved in the robberies as well, and that Acerra removed the phone from Mulligan’s vehicle and “wiped it clean” of phone numbers to erase evidence of criminal activity.  Crime scene photographs and video show Acerra at the crime scene that morning (although he failed to mention going to Walgreens when asked at a Dec. 1994 motion hearing to recount his activities on 9/26/93.)

Earlier in the hearings, Scapicchio called as a witness the woman whom detectives interviewed immediately after the murder, telling her she was the last person Mulligan called from his phone.  “So someone had those numbers,” Scapicchio pointed out.  The attorney also noted her skepticism that Mulligan would keep his cell phone buried in a hidden compartment, rendering it inaccessible.

Last Wednesday, under the defense attorney’s questioning, Foilb said he did not see the “secret compartment” in Mulligan’s console and, at the time of his search, was unaware of its existence.  He said he dusted the recovered cell phone in the lab for fingerprints but found none, not even Mulligan’s.  He did not find that unusual.  “Not even [prints from] the person using the phone each day?” Scapicchio pressed.

The 911 call reporting Mulligan’s murder was logged in at 3:49 a.m., and Sgt. Foilb arrived at Walgreens at 8:30 a.m. to secure the vehicle. After it was towed to the D Street police facility in South Boston, he made an exhaustive inventory of its contents, listing several small items he found in the center compartment, among them 9 Dunkin’ Donuts napkins, 6 small pieces of plastic, a key chain, a Panasonic battery, sunglasses, and open pack of Lucky Strikes. No cell phone.

Knowing that Mulligan carried a phone, police declared it stolen, but asked the press not to report this in hopes it might lead to the killer.

Six days later, on October 2nd, the victim’s close friend and Area E -5 colleague, Detective Kenneth Acerra, initiated another search of the vehicle at D street, saying he wanted to find Mulligan’s cell phone charger.  Acerra said he came across the missing cell phone in a separate “secret compartment” within the center console.  The report of the phone’s recovery – not written until four months later, on Feb. 3, 1994 -- stated it was in the vehicle all along, but no one knew anyone was looking for it.

Mulligan had purchased this cell phone plus three others to share with Acerra and another station-house colleague, Detective John Brazil, under the same contract.  It was later revealed that Acerra and Brazil were involved in drug dealer robberies together, along with Acerra’s longtime partner, Walter Robinson.

Scapicchio’s theory (confirmed by federal grand jury testimony in 1997-98) is that Mulligan was involved in the robberies as well, and that Acerra removed the phone from Mulligan’s vehicle and “wiped it clean” of phone numbers to erase evidence of criminal activity.  Crime scene photographs and video show Acerra at the crime scene that morning (although he failed to mention going to Walgreens when asked at a Dec. 1994 motion hearing to recount his activities on 9/26/93.)

Earlier in the hearings, Scapicchio called as a witness the woman whom detectives interviewed immediately after the murder, telling her she was the last person Mulligan called from his phone.  “So someone had those numbers,” Scapicchio pointed out.  The attorney also noted her skepticism that Mulligan would keep his cell phone buried in a hidden compartment, rendering it inaccessible.

Last Wednesday, under the defense attorney’s questioning, Foilb said he did not see the “secret compartment” in Mulligan’s console and, at the time of his search, was unaware of its existence.  He said he dusted the recovered cell phone in the lab for fingerprints but found none, not even Mulligan’s.  He did not find that unusual.  “Not even [prints from] the person using the phone each day?” Scapicchio pressed.

Criminal ties among Mulligan and his corrupt associates

Throughout the hearings, which began with three days of testimony in August and continued into three more days in November, Scapicchio has sought to underline the criminal links among Mulligan, Acerra, Robinson, and Brazil.  Acerra and Robinson, who were partners, were convicted in 1998 of a decade-long spree of falsifying search warrants in order to rob drug dealers and illegal immigrants.  (Brazil escaped charges by turning evidence on his colleagues.)

Scapicchio, in her motion, has brought forward federal grand jury testimony that, three weeks before his murder, Mulligan assisted Acerra and Robinson in robbing Commonwealth Avenue drug dealer Robert Martin. She has also presented a 1993 Boston Police Internal Affairs report documenting allegations that Mulligan and Robinson together robbed an Allston- Brighton drug dealer at gunpoint in 1991.

Prosecutors countered that Detective Mulligan had no way of knowing the September 1993 Martin drug bust was illegitimate, noting that his name did not appear on the search warrant nor on any other falsified warrant submitted by the later-disgraced detectives.  And, since the Allston-Brighton armed robbery did not involve a search warrant, they do not consider it part and parcel of the men’s criminal scheme.

Scapicchio argues that Acerra, Robinson, and Brazil’s double lives as partners in crime with Mulligan comprised a conflict of interest as they investigated Mulligan’s murder, making them intent on covering their own criminal tracks. This is why she believes Acerra wiped Mulligan’s phone clean and brought forward the teenage niece of the woman he lived with – the only eyewitness in the case – to identify Sean Ellis from photos, effectively halting the investigation.

Moreover, Mulligan’s girlfriend’s roommate, who lived at 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 points out.  She believes the funds were illegal proceeds from drug robberies.

The attorney cited further ties binding Mulligan and Acerra:  They lived in the same condominium complex; Acerra had a key to Mulligan’s unit; and he bought his unit from Mulligan (who had purchased 6 units as investments) using a down payment he borrowed from Mulligan.

With the evidentiary hearings now ended, prosecutors Paul Linn and Edmond Zabin and attorneys Rosemary Scapicchio and Jillise McDonough will have 30 days after transcripts are completed to submit their final arguments. Both sides will present oral arguments on a date to be determined by Judge Carol Ball, who is expect to rule in spring.