June 5, 2014 Preliminary hearing

“Sean Ellis retrial motion gains momentum: Evidentiary hearing set to begin August 25”

An edited version of this report by Elaine A. Murphy, "Judge orders evidence review in case of murdered cop," appeared in the July 24, 2014 Dorchester Reporter.

A retrial motion submitted on behalf of Dorchester's Sean Ellis grew legs at a June 5th preliminary hearing when Superior Court Justice Carol S. Ball ruled that issues raised by Ellis's attorney, Rosemary Scapicchio, warranted further scrutiny. Judge Ball scheduled an evidentiary hearing to begin on August 25th. “Block out the week,” she told prosecutors and defense.

Ellis is serving a sentence of life without parole for the 1993 murder of Boston Detective John Mulligan, a crime he says he did not commit. He was 19 at the time of the murder. Prosecutors said he and an 18-year-old companion killed Mulligan to get his gun for a trophy. In 1995 he was convicted as a co-conspirator at his third trial (two earlier trials ended in hung juries). No triggerman was ever established.

Judge Ball's ruling came after a dramatic eleventh-hour release of a 1993 Boston Police Internal Affairs (IA) report, faxed by Suffolk County prosecutor Paul Linn to attorney Scapicchio the night before the hearing. The documents relate to Scapicchio's claim that a Boston police officer accused a fellow officer of Mulligan's murder and was subsequently disciplined, but the information was not revealed to Sean's trial lawyers -- a Brady violation that would require a new trial. All Scapicchio had to go on was an FBI report she obtained through the Freedom of Information Act that recounted the accusation, but gave few details and redacted all names.

Assistant District Attorney Linn's released Internal Affairs report named names.

According to Boston Police, shortly after Mulligan's murder, Officer George Foley told his superiors that a confidential informant had tipped him several weeks earlier that Officer Ray Armstead, Sr. was gunning for Mulligan. The confidential informant was none other than Officer Armstead's son, Ray Armstead Jr., a Boston corrections officer. (Both Foley and Armstead, Jr. are now deceased.)

In Foley's account, in late August Armstead, Jr. told him, "My Dad's got a beef with Mulligan...he won't leave my 14-year-old sister alone. He's gonna kill him."

There was more: "They have checked on him at Walgreens. He sleeps in the car. They have shaken the car. You are gonna read about it in the papers. Shot between the eyes at Walgreens." This was the informant's message, Foley said.

A month later, on September 26, 1993, Detective John Mulligan was found slumped in the passenger seat of his SUV outside the Roslindale Walgreens on American Legion Highway with five bullets lodged in his face. "It was a message," people concurred, and police began scouring Mulligan's personal and professional lives for individuals bent on revenge.

Yet Officer Foley's tip was greeted with skepticism. Led by Sgt. Detective Daniel Keeler, investigators questioned first Foley, and then his informant. When Armstead, Jr. denied the account, the men grilled Foley again. Appearing "emotionally drained," the officer held to his story, but nonetheless Keeler and his fellow investigators branded Foley a liar, stripped him of his gun and badge, and had him shipped off to Pembroke Hospital for psychiatric evaluation and treatment.

Twenty-one days later Foley was back on the force, gun in hand, having been cleared by the department's psychologist. But the investigative lead he'd brought forward was dead.

"Here we have motive, opportunity, and a third-party culprit," Scapicchio told Judge Ball, "but (Sgt. Det. Daniel) Keeler decides it's nothing."

"They called me crazy," the attorney said of prosecutors, "crazy to say that a Boston cop accused another cop of the murder." (The Commonwealth, in its response, had characterized Scapicchio's claim as baseless and "unsound.") "And now we have the allegation of just that, in black and white -- an allegation that was never adequately investigated and that Sean's trial lawyers never saw because it was covered up by Boston Police."

Asked by Judge Ball why he'd released the information at this late date, ADA Linn said, "Until yesterday, the Commonwealth did not know this report existed." He said his office had received the documents from Boston Police "only yesterday," and because the information related to a central issue raised in the motion, "We wanted to do the right thing."

Pressed by Judge Ball, Linn agreed that, by today's standards, the IA report would be turned over to defense lawyers by prosecutors. Yet the assistant district attorney was not ready to concede that it, or any other evidence, had been suppressed. The 21-year-old case record was so voluminous, he said, encompassing four trials, multiple hearings, and three Supreme Judicial Court cases, that he needed more time to fully assess the evidence. He felt sure the information in his released IA report was known to the defense.

Not so, said Ellis's trial lawyer, Norman Zalkind, in a subsequent media interview. He and his partner were aware only of rumors that a police officer was involved. No specifics.

In the Commonwealth's response, Linn argued that more than enough evidence was presented at trial to convict Ellis. He reiterated this to Judge Ball, claiming the 1993 police report would not have altered the verdict. "There was evidence that one of them did it," he said, noting that Ellis and co-defendant Terry Patterson (convicted in 1995 but released in 2006) "were seen on a footpath near Walgreens."

Author's note: In fact, while Patterson was deduced to be one walker, having emerged from a maroon VW Rabbit parked nearby, a car later traced to him, no positive identification was made of Sean Ellis. Indeed, conflicting descriptions of the height and attire of Patterson's companion were given by witnesses.

Other key evidence that Scapicchio claimed was either withheld by prosecutors or recently uncovered:

·      Multiple FBI reports detailing the sordid misconduct of victim John Mulligan while in uniform, including shakedowns of merchants, drug dealers, and prostitutes.

Scapicchio argued that these activities suggested multiple other suspects with motives to kill Mulligan who were not investigated. The Commonwealth countered that Mulligan's misconduct was well known, having been "reported in the media shortly after the murder," and that his "alleged misconduct in the 1980's is far too remote to be material."

·      Testimony from 1997 federal grand jury hearings linking Mulligan to the decade-long criminal scheme perpetrated by his detective friends, Kenneth Acerra and Walter Robinson, of falsifying warrants and robbing drug dealers and illegal immigrants. The men were convicted on multiple counts of these crimes in 1998.

The pertinence to Ellis, Scapicchio argued, is that both detectives investigated Mulligan's murder, but their crimes -- committed with the victim -- colored their motivations and conduct: Why would these corrupt detectives welcome a deep probe into Mulligan's police work that could uncover their own wrongdoing?

So they sabotaged the murder investigation by bringing forth a teenage relative of Acerra's family who claimed she saw Ellis acting suspiciously near Mulligan's vehicle, parked outside Walgreens. When this witness first identified a different man in the police photo array - neither Ellis nor Patterson --  Acerra and Robinson spoke with her privately in Acerra's car outside homicide and, moments later, brought her back into homicide for a re-do of the procedure.  In her second viewing of the photos, the teen pointed to Ellis right away.

The Commonwealth responded that the Supreme Judicial Court in 2000 found no direct evidence of evidence tampering with this witness and that "the proven corruption of [detectives] involved in the investigation of the victim's murder is no evidence that police acted improperly in [the Ellis] case."

Judge Ball directed prosecutors and defense to make a complete inventory of all evidence in the case, separating out what was learned via discovery and transacted between them and any "new" evidence. On August 25th she will begin her own review. If she finds evidence that might have made a difference in Ellis's verdict but was withheld from his trial lawyers, she could order a retrial; whether the Commonwealth would try Ellis again after all these years is unknown.

In 21 years, Sean Ellis has never wavered from his claim of innocence. Over two decades of incarceration, punctuated by legal setbacks (a 1998 retrial motion submitted by his trial counsel was denied, as was their subsequent appeal), Ellis, now 40, has moved up the ladder of Massachusetts Correctional Institutions from Walpole to Norfolk. Along the way he earned a paralegal diploma, became a counselor of at-risk youth, and took on leadership roles in prison activities -- all "to better myself," he says.

Given the issues attorney Scapicchio has raised, Ellis's next move could be out the prison door.