Terry Patterson was swiftly convicted of murdering Detective Mulligan in February 1995, largely due to fingerprints found on the detective's vehicle that police claimed were his. But getting a conviction for Sean Ellis for "joint venture"with Patterson proved arduous and took three trials: Ellis's first two jury panels failed to find conclusive evidence that he acted in concert with Patterson, or on his own, which led to mistrials. Yet in September 1995, with no additional evidence and even fewer witnesses than had appeared in the first two trials, the third jury convicted Ellis of first-degree murder and robbery and sent him to prison for life without possibility of parole.
Sean's story to police
Sean has insisted from the start he had nothing to do with John Mulligan's murder -- that he merely shopped for diapers inside the Roslindale Walgreens at the hour of the crime, in full view of security cameras -- cameras that were made known to shoppers through prominent signage.
Several days after the murder, without a lawyer present, Sean spoke voluntarily to homicide detectives, explaining how he came to be at the Roslindale Walgreens that morning: After a Saturday-night party in nearby Dorchester he set out for home on his bike, then caught sight of his friend, Terry Patterson, driving by in his VW Rabbit with Celine Kirk in the passenger seat. Celine was Sean's 17-year-old cousin, and she and Sean were both staying that weekend at Celine's sister, Tracy Brown's, Hyde Park apartment. So Sean put down his bike and caught a ride home with Terry and Celine, stopping first at Walgreens to pick up diapers for Tracy's baby, per Tracy's request.
Patterson pulled into the drugstore's fire lane, and he and Celine live-parked while Sean went in the store to shop.
Police later found the package of LUV's that Sean bought that morning. It was on Tracy Brown's Hyde Park windowsill, along with its Walgreens receipt. The purchase time was 3:03 a.m. But by then, both Tracy and Celine were dead.
THREE DAYS AFTER DET. JOHN MULLIGAN'S MURDER,
SISTERS CELINE KIRK AND TRACY BROWN WERE SHOT DEAD
IN TRACY'S APARTMENT, AS TRACY'S BABY AND TODDLER LOOKED ON.
CELINE'S EX-BOYFRIEND QUICKLY CONFESSED,
SAYING HE AND CELINE HAD ARGUED OVER A GOLD CHAIN,
AND HE SHOT HER -- AND THEN SHOT TRACY AS SHE WALKED IN.
Though Boston Police learned that Celine Kirk was at the Roslindale Walgreens with Sean and Terry Patterson the hour of Mulligan's murder, they repeatedly denied any link between the murders of Celine and her sister and that of the slain detective.
Sean's defense team
Well-known Boston defense attorney Norman Zalkind (left) and his partner, David Duncan (below), took on Ellis's case for nominal reimbursement by the state's Committee for Public Council Service, since he was indigent. With no eyewitnesses and no physical evidence connecting Sean to the crime scene (despite extensive hair and fiber analyses done in Mulligan's vehicle), the attorneys did not put on a case in any of his three trials. “No one saw Sean Ellis shoot or rob Officer Mulligan," Zalkind stressed. "There isn’t one scintilla of evidence."
Rosa Sanchez, age 19, testified that around 3:00 a.m., she saw an African-American youth outside the Roslindale Walgreens, peering into Detective Mulligan's car windows as the detective slept in the driver's seat. She later identified Sean Ellis from police photos as that man. (Police put the time of Det. Mulligan's murder at approximately 3:45 a.m.)
At trial, attorney Zalkind emphasized Sanchez's family ties to task force investigator (and later convicted felon) Detective Kenneth Acerra. Rosa Sanchez was the only witness to link Sean directly to the murdered detective, Zalkind pointed out, charging Detective Kenneth Acerra with coaching this teenage niece of his girlfriend to make the photo ID. Calling Sanchez "possibly troubled, " he said, "She's putty. She will say anything."
Detective Kenneth Acerra did not officially disclose his personal relationship with Rosa Sanchez to the police department until two months after pulling her in as a witness.
UNKNOWN TO JURORS,
FIVE MONTHS BEFORE MULLIGAN'S MURDER,
ROSA SANCHEZ WAS RUSHED TO A BOSTON HOSPITAL
AFTER HER HUSBAND CALLED 911 SAYING
SHE'D INGESTED "AN UNKNOWN QUANTITY OF UNKNOWN PILLS."
Was Rosa Sanchez vulnerable to manipulation by corrupt police?
Prosecutors' case theory
Prosecutors said Sean and Terry Patterson hatched a plan to steal Detective Mulligan's gun after they saw him sleeping in his SUV outside Walgreens. They called it a random crime of opportunity. "Mulligan died because he wore a badge, and his gun was stolen because his alleged killers wanted a 'trophy' from their victim...Sean Ellis kept the trophy," Chief Prosecutor Phyllis Broker said. Her case theory was that after Sean shopped for diapers, he and Patterson drove to an adjacent residential street and parked and, leaving Celine Kirk in the car, walked back through the woods to kill Mulligan.
Prosecutors' 3 key points of evidence -- and reasonable doubt
1. A Walgreens neighbor saw Patterson's car.
Testimony of Victor Brown:
Victor Brown, a cable installer who lived on a quiet street adjacent to Walgreens, saw the report of Mulligan's murder on Sunday-morning TV and immediately called police to say he'd been awakened at 3:20 that morning (according to his digital clock) by a noisy brown VW Rabbit backing into his dead-end street and parking. From his window he saw two young African-American men standing on the sidewalk -- one tall and slim (as was Sean Ellis), the other "a bit shorter and stockier" (as was Terry Patterson). After speaking for a moment or two, the men entered a wooded thicket. Brown heard laughing, which reassured him. Then they emerged and set off on a path in the direction of the mall, about a four-minute walk.
Thinking the parked VW might be stolen, Brown went outside to check it and encountered a young woman sitting in the back seat. He went back inside, and fifteen minutes later heard car doors slam -- at least two doors, possibly more. Brown did not see the men return, but he rushed to his window in time to see the car roar off. Based on Victor Brown's description and a phone tip, police found Terry Patterson's brown VW Rabbit stashed in the Dorchester driveway of relatives, and Brown identified the vehicle.
Shown police photos, Brown could not identify either man as Ellis or Patterson, even though he testified that he could see out his bedroom window “so well that... if there was a coin on the sidewalk, I’d be able to tell you whether it was a nickel or a quarter.”
Was Sean Ellis the companion in Terry Patterson's car when Patterson moved it to Brown's street, or was someone else involved? Reasons to doubt it was Ellis:
Different attire: The taller, thinner man Brown saw wore "a windbreaker with a white hood over the collar, down." But other witnesses described different attire for the tall, thin man in the Walgreens lot whom prosecutors said was Sean: Rosa Sanchez said he wore a greenish-blue hoodie sweatshirt; Ivan Sanchez said he wore a black hoodie sweatshirt.
Did someone else drive with Terry Patterson to Brown's street? In a police interview, Sean's uncle, David Murray, said Sean told him that when he came out of the drugstore after buying diapers, Patterson's car was no longer parked in the fire lane, causing Sean to be surprised and confused.
Did more than two men run back to Patterson's car? Victor Brown admitted he didn't see any men return. As for the number of slamming car doors, he recalled hearing “More than one door. At least two. It could have been three.” If three doors closed, then someone else ran back to the waiting car with Patterson and Ellis. Indeed, defense attorney Norman Zalkind posed this question to jurors: “Is it really two men? Is that the magic number, two men?” and asked them to consider, “Was there somebody that was actually at Walgreen’s already and that came back with Terry Patterson and somebody else?...Someone who fit Brown’s description of a ‘dark jacket with a white top, a collar, no hat...’?”
2. Two couples at Walgreens saw men fitting Ellis and Patterson's descriptions.
Testimony of Rosa Sanchez:
Rosa Sanchez, the teenaged relative of Mulligan murder investigator Detective Kenneth Acerra, arrived at Walgreens just after 3:00 a.m. with her husband, Ivan, and his brother, Javier, in Ivan's car. They parked in the lot, and as Rosa walked from their car to the store, she saw an African-American man (whom she later identified as Sean Ellis) crouching down next to Mulligan's SUV, peering into the window as the detective slept. When she exited Walgreens after her errand, she saw the same man again, this time standing with another man at the phone bank next to the store.
Was Sanchez even at Walgreens? The teenager said she stopped to pick up a bar of soap, and the Walgreens cash tape showed such a purchase at 3:20 a.m. Asked by defense lawyers why it took her nearly 20 minutes to complete that simple transaction (she had walked into the store just after 3:00 a.m.), Rosa said she'd browsed the card aisle for a while.
But a witness named Deborah Cox, who was not called by prosecutors to testify, told police she shopped in Walgreens for cards between 2:55 and about 3:15 a.m. on Sunday and never saw Rosa Sanchez -- or anyone else - in the card aisle. Cox sat on the floor in the aisle, reading cards, and selected 8, which she charged to her credit card at 3:14 a.m., moments before Rosa Sanchez bought soap. So Deborah Cox and Rosa Sanchez would have crossed paths in the aisle -- if Rosa were telling the truth.
How did police learn Rosa was at Walgreens? The stories conflict: Boston Detectives Kenneth Acerra, John Brazil, and Walter Robinson (all of whom later admitted guilt in a decade-long scheme of drug-dealer robberies and perjury) drove to Rosa Sanchez's Humboldt Avenue, Roxbury, apartment the afternoon after Mulligan's murder to interview her. Asked how the officers came to know she was at Walgreens at the hour of the murder, Rosa gave differing accounts, at first saying she didn't know who in her family called police, and then attributing the phone call to her mother-in-law.
Rosa was definite about one thing: she did not make the initial phone call to police. But: In separate testimony, Boston officer Elvis Garcia, a relative of Ivan Sanchez's who received that initial phone call, said it was Rosa herself who mad the call, at 4:00 p.m. that Sunday, to tell him she'd "seen something at Walgreens."
Why was Rosa's call not documented? Interestingly, Officer Garcia did not write up a report of Rosa Sanchez's vital 4:00 p.m. phone tip until a full year later, and then only did so at the request of his supervisor. Why was no police report made during this, the most intense -- and heavily watched -- homicide investigation in Boston's history? Background: Police were under pressure to run an impeccable investigation to counteract the department's dismal, indeed criminal, performance in the relatively recent Carole DiMaiti Stuart murder case, in which homicide detectives railroaded an innocent African-American man.
The time of Rosa's phone tip conflicts with her husband's police interview: Officer Garcia clocked in Rosa's phone call at 4:00 p.m. But 4:00 p.m. was the "start time" that Boston police noted for Ivan Sanchez' taped interview across town at Station E-5 in West Roxbury -- a session that occurred well after the Sanchez's initial interview on Humboldt Ave., given that Det. Acerra left after that interview and then returned some time later to drive the couple to the police station in his private car.
Testimony of Ivan Sanchez:
As Rosa Sanchez walked into the store, her husband, Ivan, decided to move his car from its parking spot in the lot to the Walgreens' fire lane. As he swung the car around, he saw two men emerge from the woods -- one tall and thin and the other shorter and stockier. The men walked to the phones and stood there "the whole time" (14 minutes or so) that Ivan sat there, waiting for Rosa.
Prosecutors said these men were the same individuals who were seen by Walgreens' neighbor Victor Brown entering the woods from his street at exactly 3:20 a.m. They said the men were Ellis and Patterson, intent upon killing Detective Mulligan.
Were the two men Ivan Sanchez saw coming out of the woods at Walgreens just after 3:00 a.m. the same two men Victor Brown saw going in, as prosecutors implied?
Or -- were there other men in the woods? Because the sightings of Ivan Sanchez and Victor Brown do not match up by nearly half an hour:
- Ivan saw men two emerge from the woods and walk into the parking lot just after 3:00 a.m., as he moved his car nearer to the Walgreens' doors.
- Walgreens' neighbor, Victor Brown, saw two men set off on a grassy footpath at around 3:25 a.m. and head towards Walgreens. Brown's house was a four-minute walk from the mall, putting the men on course to arrive at Walgreens by 3:30 -- nearly half an hour after Ivan Sanchez saw his two men emerge from the woods.
Shown police photos, neither Victor Brown nor Ivan Sanchez could identify either Ellis or Patterson as the men they saw.
Important? Ivan Sanchez had a criminal case (running a red light and assaulting a police officer) settled favorably over the course of Sean's trials.
Most tellingly of all,
UNKNOWN TO JURORS,
IVAN'S WIFE, ROSA, REPORTED TO POLICE
THAT IVAN TOLD HER
THE TALL, THIN MAN,
(WHOM SHE LATER IDENTIFIED AS SEAN)
WAS NOT ONE OF THE TWO MEN
HE SAW WALK OUT OF THE WOODS.
This adds up to at least three African-American men at the scene -- a conclusion Boston Detectives actually reached, and spoke about, when interviewing Rosa:
This exculpatory disclosure by Ivan Sanchez to Rosa -- that the tall, thin man she claimed was Sean Ellis did NOT walk out of the woods --is found in the police transcript of Rosa Sanchez's September 26, 1993, interview at the Area E-5 station.
Why did jurors not hear it? At trial, this statement of Ivan's to Rosa, though documented in her police interview, was barred as evidence after Chief Prosecutor Phyllis Broker objected to it as "hearsay," and Judge McDaniel ruled in her favor over defense attorney David Duncan's strenuous objection. Duncan managed to preserve Rosa's account of Ivan's statement to her, for the record.
Testimony of Joseph Saunders and Evony Chung:
Joseph Saunders and Evony Chung drove to the Roslindale Walgreens to pick up a few items after seeing a movie in nearby Dedham -- "The Bodyguard" -- they both said. Evony shopped while Joseph waited in his car. As she walked into the store, two young African-American men passed her, one on either side. Feeling alarmed, Evony tucked her gold chain into her blouse, but nothing came of her fears.
As he waited, Joseph Saunders saw in his rear-view mirror an African-American man "about 5'10" tall...wearing a white shirt" walk through the parking lot towards the phone (Sean Ellis is 6' 1"). When the man reached the phones he was joined by another African-American man. There were other (unidentified) young African American men in the parking lot that night.
In Walgreens, Evony bought diapers, Vicks Vapo-Rub, and cough syrup and checked out at 3:18, two minutes before Rosa Sanchez. She and Saunders then drove off, observing Detective Mulligan asleep in his driver's seat.
Shown police photos, neither Saunders nor Chung could make a positive identification of Ellis or Patterson.
Important? Saunders had a pending larceny case that was settled favorably during the time of Ellis's trials.
Over the course of Sean's three trials, Chung changed her testimony to more closely mesh her arrival time to the mall with witness Rosa Sanchez's arrival and departure times. (Defense lawyers said prosecutors knew Sanchez was a shaky witness and needed to buttress her account.)
Between Ellis's second and third trial, Chung was arrested and charged with "possession of drugs with intent to sell," and $3580 was confiscated from her underwear. After Sean's conviction, his defense team learned that Chung's drug charges were dropped and her $3580 was returned.
THE MANAGER OF THE DEDHAM SHOWCASE CINEMA
TOLD POLICE THAT "THE BODYGUARD"
WAS NOT PLAYING THAT NIGHT --
NOR WAS IT PLAYING ANY OTHER NIGHT IN 1993.
3. Sean allegedly took custody of guns - one said to be the murder weapon and the other Det. Mulligan's service revolver -- that were later found in a Dorchester field.
Testimony of Latia "Tia" Walker:
Sean's girlfriend at the time, Tia Walker, testified for the prosecution in exchange for immunity from accessory charges (since a fingerprint purported to be hers turned up on the clip of one weapon). Walker claimed that four days after Mulligan's murder Sean removed two guns from his cousin Tracy's apartment (this despite the fact that Tracy's basement apartment was an active crime scene due to the horrific murders of her and her sister there the previous day -- and was presumably searched by police).
Walker said Sean brought the guns to her Dorchester bedroom and placed them under her nightstand and that subsequently their friend, Curt Headen, removed the weapons and hid them under leaves in a nearby field. (Another friend, Kevin Chisholm, told police he was present when Headen took the guns, but did not participate in hiding them.)
The guns were recovered from the field on October 6th after Sean's uncle, David Murray, learned their location from an unidentified male and tipped officer John Brazil. At trial, Walker identified the guns as Mulligan's service revolver and the .25-caliber pearl-handled gun that prosecutors said killed the detective.
Both Curt Headen and Kevin Chisholm gave statements to police about the guns Curt retrieved at Tia Walker's, and both testified at the grand jury considering evidence against Ellis and Patterson. But:
NEITHER YOUTH -- CURT HEADEN OR KEVIN CHISHOLM --
LIVED TO TESTIFY IN THE MULLIGAN TRIALS.
BOTH WERE SHOT DEAD ON DORCHESTER STREETS
WITHIN THE YEAR.
Detective John Brazil (who later admitted to perjury on warrants and called subsequently convicted felons Dets. Acerra and Robinson his "mentors") told reporters –on the very day of Headen's killing -- that the youth's murder stemmed from a gang dispute and had nothing whatsoever to do with his anticipated testimony in the Mulligan trials: “We’re absolutely satisfied this homicide is totally unrelated to the Mulligan case," Brazil said confidently on that day. "We’ve looked at every aspect of this case for a connection. There isn’t any."
Was Tia Walker's account implicating Sean genuine? As Attorney Scapicchio notes in her 2013 retrial motion, Walker was a young mother at the time, and thus "vulnerable to police pressure and coercion because...a common police tactic was to threaten to get [the Department of Social Services] to take a child if a witness did not say what the police wanted the witness to say." Police pressured Tia after Mulligan's murder, coming repeatedly to her door. Did detectives threaten Latia Walker, or make promises to her, to procure her account?
If so, it would not be the first time: Homicide detectives elicited false stories in the notorious 1989 DiMaiti Stuart murder case and came close to railroading an innocent man. And in the wrongful murder conviction of Sean Drumgold for a 1988 Boston murder, detectives rewarded one witness for giving a false story, and "pressured and berated" another witness "to the point of tears" to get an account -- tactics the Boston Globe's editorial board deplored as "blatant bullying and browbeating on the part of Boston Police." When this came to light in 2003, Mr. Drumgold, represented by Ellis's attorney, Rosemary Scapicchio, was released.)
Were Curt Headen and Kevin Chisholm assured of lenient treatment before the law in exchange for giving their accounts? Both reputedly dealt drugs; both had arrest records. Moreover, BOTH WERE TRANSPORTED TO HOMICIDE TO GIVE THEIR STATEMENTS BY THE CORRUPT DETECTIVES ACERRA AND ROBINSON.
IT WAS AFTER BEING ALONE WITH THESE DETECTIVES THAT THE YOUTHS FIRST RELATED THEIR GUN-HIDING STORY -- THE SAME STORY THAT WOULD BE ECHOED SEVERAL DAYS LATER BY TIA WALKER .
With Headen and Chisholm both murdered in separate incidents in 1994, some months after they "cooperated" with police and before the Ellis trials, we will never know.
Was the pearl-handled gun planted? Police transcripts show that on October 2 and 3, 1993, SEVERAL DAYS BEFORE THE GUNS WERE RECOVERED, police questioned Mulligan's 27-year-old girlfriend and, separately, her roommate (they lived in the same West Roxbury condo complex as Mulligan) and asked each if she had ever seen John Mulligan with "a pearl-handled gun" -- the exact description of the purported murder weapon.
How did police know the description of the gun before it was found? Was the weapon Mulligan's own, as several reports indicate? And was it truly the murder weapon? Studies conducted since the Ellis verdict by the National Academy of Sciences have cast doubt on the notion of "identifying marks" on newly manufactured bullets.
Testimony of Sean's Uncle David Murray: Sean's maternal uncle testified for the prosecution. Two theories have been promulgated to explain why. Murray, who was on parole, told family members that police leaned on him mercilessly, threatening retribution (a return to prison for parole violations) unless he "cooperated."
Sean's attorneys had a different theory: "Did you think you might get the reward money, Mr. Murray?" they asked at trial. Police had offered a $25,000 reward for information leading to the arrest of Mulligan's killer.
In the days following the murder, Murray testified that Sean confided in him about his time at Walgreens.
SEAN DID NOT KNOW THAT HIS UNCLE
WAS REPORTING EVERY ONE OF THEIR CONFIDENCES
TO DETECTIVES JOHN BRAZIL AND WILLIAM MAHONEY.
Uncle David Murray reported to the Boston detectives that Sean told him he and his cousin, Celine, drove to Walgreens with Patterson, and that after buying diapers he walked out the door and was immediately taken aback to find an empty space in the fire lane where Patterson's VW had been parked.
Author's note: Murray told Det. Mahoney in an interview, but did not state in his testimony, that Sean muttered to himself, Where's the car?" upon finding the VW gone. This was Sean's first, confused reaction. Detective Mahoney's handwritten notes of the Murray interview contain Sean's words, prominently printed in block letters: WHERE'S THE CAR?
There was no mention of this exculpatory fact at trial.
Just then, Murray said, Patterson ran up to Sean and breathlessly shouted for him to run away through the adjoining woods. Not knowing what else to do, Sean complied. And, in Murray's account, "across the bushes" was Terry Patterson's waiting car, with Celine still inside.
David Murray added one other detail: In the car, Patterson tossed Sean two guns and commanded, "Get rid of these," and Sean complied.
Sean, who had just turned 19, was distraught and crying during the week after the murder, Sean's Uncle David testified, repeating over and over, "I'm innocent. Uncle, I just didn't do it, and I know they're gonna try to pin it on me.'"
David Murray's account of Sean's confidences indeed sounds compelling -- and exculpatory. But did Murray, then on parole, bend the truth about the guns, pressured as he was by Detective Brazil to give up information leading to a conviction?
Consider the context: Brazil was subsequently found to be an active partner with Detectives Kenneth Acerra and Walter Robinson in a secret scheme of drug-dealer robberies flourishing throughout this period -- a scheme in which victim John Mulligan was also an accomplice (see "Corrupt Investigators").
Theoretically, it would serve Brazil and his colleagues' interests to pin the crime on a street kid and thus halt further probing that might reveal their joint crimes.
In September 1995, Ellis' third jury convicted him of first-degree murder and armed robbery and sent him to Walpole State prison to begin a sentence of life without parole.
What was different about Sean Ellis's third trial?
The jurors in trial three did not hear from two significant witnesses who testified in Ellis's first and second trials:
David Murray: Chief Prosecutor Phyllis Broker chose not to call Sean's Uncle, David Murray. According to the Boston Globe, several jurors in trials one and two told reporters they found Murray's testimony about Sean's distraught manner, and his protestations of innocence, compelling.
At the pre-trial conference for trial three, when Judge McDaniel asked Broker if she planned to call Uncle David, she demurred, saying, "If you ask David Murray what he had for breakfast, he'll say, 'Cheerios, and Sean Ellis did not kill the officer!"
Ivan Sanchez: Ivan Sanchez, it was claimed, could not be found. So jurors didn't hear that he saw two men spilling from the woods into the Walgreens' lot a full 25 to 30 minutes earlier than neighbor Victor Brown's two men-in-the-woods could possibly have reached the parking lot.
* * *
Terry Patterson, age 18 at the time of Mulligan's killing, was tried and convicted of first-degree murder and armed robbery in early February 1995, after Sean Ellis's first trial. It took his jurors a scant three hours to reach their conclusion, largely due to "latent" prints of three fingers taken from the driver's door frame of Mulligan's Ford Explorer that police said matched Patterson's. As the Patterson jury foreman told reporters, "Fingerprints was certainly a good indication he was there, and there was no alibi, nothing to prove he wasn't part of this plot." Terry Patterson was sentenced to life without the possibility of parole and sent to Walpole State Prison.
In December 2000, the Massachusetts Supreme Judicial Court reversed Terry Patterson's first-degree murder conviction, citing a conflict of interest of his trial attorney, Nancy Hurley -- a conflict that ironically centered on her claims of police lying: Before the trial, Hurley had publicly charged investigators John Brazil and Dennis Harris with perjury on an affidavit in which they claimed that Patterson made nodding gestures indicating that Sean Ellis was the triggerman.
"It simply did not happen,” Hurley told the press. She was present for Patterson's entire police interview, and “Patterson was not asked that question, and he did not nod his head.” The session was not tape-recorded, so it was the defense attorney’s word against the detectives’.
The court ruled that Hurley should have removed herself as Patterson's lawyer and served as a defense witness to counter Detective Harris's testimony -- an account she believed to be untrue.
Patterson was moved to Boston's Nashua Street Jail and held without bail, awaiting retrial. It would be six more years until his case was finally resolved.