Retrial Motion Hearings 2014-15
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THE FOLLOWING ARE HIGHLIGHTS OF HEARINGS
IN SUFFOLK SUPERIOR COURT, BOSTON,
TO CONSIDER SEAN ELLIS'S 2013 RETRIAL MOTION.
FINAL ARGUMENTS WERE PRESENTED APRIL 9, 2015.
Justice Carol S. Ball, presiding
Arguing for the defense: Appellate attorney Rosemary C. Scapicchio
Arguing for the Commonwealth of Massachusetts: Assistant District Attorneys Paul B. Linn and Edmond J. Zabin
Sean Ellis retrial motion gains momentum: Evidentiary hearing set to begin August 25
by Elaine Murphy
An edited version of this article appeared in the July 24, 2014 Dorchester Reporter, p.11: "Judge orders evidence review in case of murdered cop."
A retrial motion submitted on behalf of Dorchester's Sean Ellis[i] 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.[ii] 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.
[i] "Dorchester Man Seeks Retrial Citing Withheld Evidence, Police Corruption," by Elaine A. Murphy, Dorchester Reporter, January 16, 2014.
[ii] "One of the City's Most Notorious Murder Convictions is in Jeopardy," David S. Bernstein, Boston Daily, June 6, 2014.
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(2) ELLIS RETRIAL MOTION HEARINGS: AUG. 25-27, 2014
An article based on this report appeared in the 9/4/14 Dorchester Reporter; "Ellis case update: Hearings on evidence dispute to be continued," by Elaine A. Murphy (link below).
The Boston Police Anti-Corruption Unit’s files on Boston Detectives Kenneth Acerra, Walter Robinson, John Brazil, and the victim, John Mulligan, were released to attorney Rosemary Scapicchio on 8/26 by order of Judge Carol Ball. A preliminary reading shows that in 1993 the unit was investigating a 1991 allegation of a drug-dealer robbery perpetrated by Mulligan with task force member Walter Robinson. That this information was withheld from Ellis’s trial lawyers, Norman Zalkind and David Duncan, is a constitutional violation, Scapicchio says.
Judge Carol Ball indicated she will take a “broad view” of the issues at the hearings, given that previous courts "did not know what we now know -- that [Mulligan murder investigators] Acerra and Robinson were actively engaged in crimes at this time, and Mulligan was tied in with them."
Hearings adjourned until November 17, 18, 19, 2014.
In a Suffolk Superior courtroom presided over by Judge Carol S. Ball, hearings got underway on August 25th to consider charges of prosecutorial misconduct leveled by appellate attorney Rosemary Scapicchio in her retrial motion for Sean K. Ellis, convicted in 1995 after two mistrials for the September 1993 murder of Boston Detective John Mulligan. Attorney Scapicchio has said Suffolk County prosecutors failed to disclose important third-party culprit evidence to Ellis trial lawyers. Assistant District Attorneys (ADAs) Paul Linn and Edmond Zabin argued on behalf of the Commonwealth.
Chief among the information Scapicchio says was covered up is a tip brought forward by now-deceased Boston officer George Foley, information that he told supervisors he got in late August 1993 from Boston corrections officer Ray Armstead, Jr. According to Foley, Armstead said his father, Boston Police Officer Ray Armstead Sr., was plotting to murder Mulligan and foretold that Mulligan would be found "shot between the eyes at Walgreens" -- exactly what did occur weeks later. Scapicchio uncovered Foley's tip in FBI documents she obtained through the Freedom of Information Act.
Prosecutor Paul Linn said, "The [Foley] report almost certainly was turned over to [trial attorney] Norman Zalkind." Scapicchio contested this, telling Judge Ball, "David Duncan [Zalkind's partner] unequivocally said he did not receive it and cannot imagine they wouldn’t have followed it up."
The judge denied prosecutors' motion to restrict the hearing to the Foley matter, explaining she wants to take a "broad view" of the issues. She noted that when the SJC considered Ellis's appeal in 2000, they "did not know what we now know -- that Acerra and Robinson were actively engaged in crimes at this time, and Mulligan was tied in with them." Had they known all that, "it would have given them a "whole new theory to think about...a whole new argument that Acerra and Robinson, during the investigation, were serving two masters: keeping people from discovering their own 'stuff' and finding the killer."
Scapicchio has brought forward 1996 federal grand jury testimony naming Mulligan as an accomplice of Acerra and Robinson's in robbing two Commonwealth Avenue apartments leased by drug dealer Robert Martin in September 1993, 2 1/2 weeks before his murder.
When Prosecutor Linn countered that Acerra and Robinson's acknowledged crimes had nothing to do with the Mulligan murder investigation, Judge Ball disagreed, saying the idea of the men's “interference” in the investigation in order to cover up their own crimes, as Scapicchio contends, is a “logical argument,” given that Mulligan's cell phone was found in his SUV a full week after the murder -- by Acerra -- and was possibly cleaned up, and that money was removed by Robinson from Mulligan’s apartment soon after the detective was found dead.
Attorney Scapicchio interjected that Acerra and Robinson "brought forward the one and only witness who identified Ellis."
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SUMMARY OF TESTIMONY
The hearings began with testimony from a Quincy woman, Michele "Missy" Hagar, who dated Mulligan in 1993. She admitted to being addicted to crack cocaine and heroin at that time, to doing drugs in Mulligan's presence, and to dealing drugs to support her habit. She said that her encounters with Mulligan were mainly for sex "in return for favors...He gave me one thing and I gave him another." Asked what "favor" Mulligan gave her, she responded, “He got me off a case in South Boston."
Hagar said she was visited by two Boston detectives in the days after Mulligan's murder who said her telephone number was the last one called from the slain detective's cell phone. Hagar could not recall the identity of the detectives. "So somebody had those [cell phone] numbers," attorney Scapicchio said. Det. Mulligan's cell phone was not found by technicians who scoured his Ford Explorer after his murder, and it was declared stolen. A full week after the crime, the phone was discovered in the SUV's center console by Det. Kenneth Acerra in what police characterized as a "second search of the vehicle."
Conduct of the Mulligan murder investigation:
The remaining hearing testimony, lasting three days, was given by Sgt. Detective Thomas O'Leary, who led the 1993 Mulligan investigation. "I shepherded it, " he clarified, saying "there were many sets of eyes watching,” including D.A. Ralph Martin II, Chief Prosecutor Phyllis Broker, Homicide Unit Director Captain Edward McNelly, and Police Commissioner William Bratton. At the time, O'Leary had been a detective for just a month, but when the 911 alert came in just before 4 a.m. on Sunday, September 26, 1993, he was on the on-call team and got the assignment.
Task force formation
Sgt. Detective O'Leary's first order of business was to set up the task force. Commissioner Bratton wanted a 50-man team, but homicide was only 24-25 strong, so others had to be found. Over dinner in a Dedham restaurant the evening after the murder, O'Leary, McNelly, and Bratton firmed up the list, adding investigators from the MBTA and Station E-5, "because it was John's district and where the crime was committed."
We wanted only "the best and the brightest," O"Leary said.
On Monday at 5:00 p.m., O'Leary gave the initial task force briefing, telling his men, "Leave no stone unturned. Look at everybody." Police asked for the public's assistance and set up a hotline in homicide, and, "People came out of the woodwork: psychics, ex-wives, inmates with grudges." All tips were anonymous; all were documented for discovery.
Tips followed and not followed
Asked how he selected which phone tips to follow, O"Leary answered, “You have to decide if they have merit” and that it helped to have a specific person to check on. Scapicchio proceeded to read aloud seven detailed tips containing information such as, "phone call from South Bay Correctional saying a [named] drug dealer inmate had a contract out to kill John Mulligan; [name redacted] is the killer of the detective. He has a criminal record; four white males in a yellow Pontiac Catalina in the Beech St. projects are the killers; a former inmate at the Suffolk County House of Corrections made repeated threats of death to Mulligan; Mulligan's murderers are in a Black BMW on Moore St., Dorchester; a 5’8” or 9” black male with a long record, a drug dealer, has Mulligan’s gun and is standing outside Harry’s Bar right now."
O'Leary admitted that of those tips, only the first was assigned for follow-up -- given to Acerra and his supervisor, Sgt. Det. Lenny Marquardt. No report was ever made of their investigation.
Scapicchio submitted a packet of 50 additional tips, none of which were followed up or reported on. And, despite the elaborate tip-numbering-and-indexing system described by O'Leary to ensure that chief prosecutor Phyllis Broker got all tips for discovery purposes, Scapichhio noted that two tips postdated the trials, other tips went unnumbered, and a sub-group had had an additional layer of numbering added to them by an unknown hand: "That's a problem," O'Leary admitted of the latter disclosure.
His explanation for not following up the phone tips: "We were too busy following the evidence we had, that being the brown Volkswagen and sightings of two African-American youths around Walgreens." Detectives received these tips on the day of the murder directly from two individuals, Edmond Zabin pointed out, not from anonymous phone tips.
First, Victor Brown, a "family man" from Fieldmont Street, near Walgreens, walked into Station E-18 to say that a brown VW with a racing bra backed into his street around the time of Mulligan's killing, and two African-American youths set off on a footpath towards the Walgreens mall. Second, Art DeSalvo, who delivered Sunday newspapers in the vicinity around 3:15 or 3:30 a.m., "nearly got T-boned by a small brown car at the intersection of Hyde Park Ave. and American Legion Highway."
"You chase what you know," O'Leary emphasized, saying the detectives concentrated on this information, and those other tips "flew in the face of the evidence we had." Indeed, O’Leary separated all tips into two piles: one related to the brown VW and the two youths, and the second covering all other tips.
Next, he said, two Walgreens witnesses, Rosa Sanchez and Evony Chung, early on described seeing two African-American teenagers around Walgreens. O'Leary then corrected himself about Chung, saying, "actually, we had to follow her up," and Rosemary Scapicchio clarified for the record that Chung didn't give her statement until October 1, "so there was no information corroborating what Rosa Sanchez said about seeing an African-American guy at Walgreens by September 30," the day Officer George Foley related his tip.
Setting the context for Foley's tip, ADA Zabin elicited that between September 26 and 30, investigators were busy working on three other murders (two of the victims were Sean Ellis's cousins), and in the Mulligan investigation they were also pursuing the victim's arrest record, questioning Mulligan's girlfriend, and searching the vicinity for Mulligan's missing Glock pistol: "There was various running around,” O'Leary said. On September 30 they found Terry Patterson's car stashed on Stratton Street, Dorchester and had it identified by Victor Brown and one of Patterson's Hyde Park neighbors; that night they brought in Sean Ellis for questioning about his cousins' murders.
Officer George Foley’s tip and aftermath
It was on this day that Officer George Foley told his superiors he'd learned in August that Officer Ray Armstead, Sr. "had a beef with Mulligan" and planned to kill him. O'Leary testified that detectives never took Foley’s tip seriously: "I gave George Foley’s allegation no merit whatsoever...It flew in the face of the evidence we had...It was so detailed it was crazy...I thought [the tip] was ludicrous then, and I think it's ludicrous now."
Describing Foley as "a good detective" and "a friend," O'Leary repeated several times over that Foley was beset by "alcoholism and mental illness" and said, "I think George broke out drinking Wednesday night, went to bed, and had a vision. He was an alcoholic. And on Thursday he came in with this story."
O’Leary and three other detectives "sat Foley down in McNelly's office over this, because it was outrageous," and Foley proceeded to "break down in front of us...He had his head down, distraught...He went back and forth with his story [saying], 'maybe I'm wrong, maybe I'm right.'... He was a mess."
Foley's interviewers stripped him of his gun and badge and called in the stress unit in to take him to a hospital for evaluation.
Attorney Scapicchio brought out that 30 days later Foley was back on the force -- with gun -- evidently fully recovered. "To get your gun back you have to have a disciplinary hearing," she pointed out. "Was there a hearing? Where is the report of that? "
O'Leary had no recollection of any such hearing and knew of no report.
Detectives were ordered to interview Foley's purported informant -- Armstead's son. Questioning Ray Armstead, Jr. was "a very sensitive situation," O'Leary said, "awkward" and "personally draining" for him. Detective Dan Keeler asked Armstead "six questions," and a "perplexed" Armstead Jr. said, "What are you talking about?" and denied he'd spoken to Foley.
Neither O'Leary nor any other detective interviewed the man accused of killing Mulligan, Ray Armstead, Sr.
Scapicchio revealed that George Foley was a member of the Mulligan task force. "The best and the brightest? " she asked O"Leary pointedly. "This 'alcoholic' you now say?"
O'Leary countered that Foley was a "good detective," albeit with problems.
"The best and the brightest?" Scapicchio asked again, hurling the names of two other task force members later stripped of their badges: "Kenny Acerra? Walter Robinson?"
Mulligan’s cell phone not found in his vehicle until a week after his murder
Detective Mulligan's cell phone was not initially found in his leased Ford Explorer, but turned up a week later in the vehicle's center compartment in a "second search" of the vehicle. Scapicchio questioned O'Leary about that search and about securing the vehicle. He said his men put tarps over the Ford Explorer outside Walgreens, as it had begun to rain. He did not think an inventory of the SUV was made then: “Not right away." He did not recall when he learned about Mulligan having a cell phone, or if a cell phone was asked about at the crime scene, or if they checked for one there.
Scapicchio then produced an inventory of the car's contents made by Detective Robert Ford dated 9/26/93 -- the day of the murder. She read aloud the list of items specifically noted as being in the SUV's center compartment: nine Duncan Donuts napkins, sunglasses, a key chain, an unopened pack of Lucky Strikes, and several other small items. No cell phone.
The car was towed “at some point” to the D street crime lab, O'Leary said, and secured there to allow forensic technicians to look into blood and brain matter. Scapiccho asked whose idea it was to search Mulligan's vehicle again on October 5th, and O'Leary answered, "Acerra or [Richie] Ross." Pressed as to why this second search was initiated, O'Leary recalled that "Mulligan's girlfriend, Mary Shopov, suggested we check in a second compartment," presumably for the cell phone.
"You mean the crime scene investigators missed it?" Scapicchio asked. She then produced a police report documenting that Acerra approached Detective Richard Ross to say they should look in the car.
Judge Ball interjected, "You’re suggesting this was a set-up by Acerra?"
"Yes," Scapicchio said, and, turning to the witness, underlined, "The report says was it Acerra’s idea…There's no mention of Mary Shopov directing them. "
“Right,” O'Leary conceded. He admitted he did not question Acerra after he'd found the phone. He maintained that "the crime lab people told detectives, 'The phone was there. We saw that phone on Sunday night, but we didn’t know anyone was looking for it.'”
O'Leary had little memory of actions taken once Mulligan's phone was found. When Scapicchio asked, "Did they search the contents of the phone?" he said, “I don’t know if anybody did that.” He had "no memory" of assigning anyone to investigate the phone's contents, or of trying to find the cell phone provider, or if anyone "went into the cell phone to see the numbers."
Prosecutor Zabin downplayed the importance of the cell phone as evidence, saying that, unlike today, when cell phones contain vital data, this was not the case back in 1993. Sgt. Detective O'Leary agreed.
Rosa Sanchez’s two separate viewings of the unchanged photo arrays
When Attorney Scapicchio initiated questions about witness Rosa Sanchez's photo identification of Sean Ellis, prosecutor Paul Linn said, “Rosa Sanchez’s ID has withstood scrutiny.” Zabin recapped the circumstances of Sanchez coming forward with information: On the afternoon of the murder, she called Officer Elvis Garcia (a relative of hers based in Boston's Area E-5) to say she was at Walgreens and "recognized someone there." The tip was given to Detective John Brazil, and he and Acerra went to Rose Sanchez's home to interview her. On October 5th she was brought into homicide to look at two photo arrays, one created around Sean Ellis and the other around Terry Patterson.
Acerra’s failure to disclose personal relationship with Rosa Sanchez
Rosemary Scapicchio pointed out that it was Kenneth Acerra and his partner, Walter Robinson, who drove Rosa Sanchez and her husband, Ivan, to homicide on October 5th to see if she could identify the man she saw at Walgreens. The attorney asked Sgt. Det. O'Leary, "Did Acerra disclose he had personal relationship with this witness? (Acerra then lived with Rosa's Aunt Lucy, with whom he had a child.) "I'm not sure when [he did]," O'Leary answered. "I think it was at some point."
Stating that Acerra was one of four officers sitting in the room during the Sanchez photo showing (the others were Detectives Robinson, O'Leary, and Ross), Scapicchio pressed, "Did Acerra tell anyone, "Rosa Sanchez is my girlfriend’s niece?
"No, "O'Leary said.
"In fact Acerra did not disclose it until months later -- a conflict that was a distinct violation of department rules," Scapicchio said. O'Leary responded that he'd "have to read the rules" to ascertain this.
Sanchez’s first selection from the photos
Scapicchio then zeroed in on the first person Rosa Sanchez selected from the array (after initially spotting a photo of a man she said was stalking her, causing that image to be covered up). After considerable back and forth, O'Leary conceded that Sanchez did point to one photo, saying, "This looks like him."
"Did she sign and date that photo?" Scapicchio asked.
“No, because she did not make a positive ID,” O'Leary said. “We did not consider this an ID."
Attorney Scapicchio then got the witness to agree that, by today's standards, this first selection of Rosa Sanchez’s would be considered a viable ID --that "even if the witness is only 30% sure, it would be considered an ID and the photo would be signed and dated."
(Author's note: The first photo Rosa selected was the same man her husband, Ivan, selected some days earlier when detectives showed him the photo arrays in their apartment.)
Sanchez’s second viewing of the same arrays
At this point, Rosa Sanchez left the station with her husband and Detectives Acerra and Robinson, who planned to drive the couple home. But within moments she was escorted back into homicide by Robinson and given another look at the same arrays – with all photos in the same places as before. This time she chose Sean Ellis right away, amending her earlier choice. And this time police asked her to sign and date the photo.
Asked what precipitated Sanchez's second viewing, O"Leary said "On the stairs down, Rosa whispered in Spanish to her husband that she'd actually seen the man, saying 'If they killed a cop, they'll kill me.' Acerra, who spoke Spanish, overheard this and translated it to Robinson."
(Author's note: this account differs in detail from Acerra's testimony at the 12/94 motion hearing at which defense attorneys motioned to disallow the Sanchez ID as evidence. In Acerra's account then of what precipitated her second viewing, he said Rosa was sitting in his car outside homicide, crying, and Robinson asked her directly, "What's wrong?")
After Rosa's second viewing of the arrays, the D.A.'s office notified homicide "within the hour" that Acerra and Robinson must be questioned about the session, under oath, on tape.
"Why was that request made?" Judge Ball asked the witness, and Det. O'Leary said, “I think it was to protect the integrity of the case.”
Attorney Scapicchio clarified that the questioning of Acerra and Robinson was not done under oath. She asked the detective if he'd asked Acerra or Robinson to make a report "about what happened," or tasked them to "reduce their conversations with Rosa to writing," or if he'd asked Rosa Sanchez or Ivan Sanchez what happened.
“No," the detective said in answer to these questions.
Acerra's removal from the task force
The Judge indicated she wanted to explore the "brou-ha-ha" in which chief prosecutor Phyllis Broker allegedly accused Acerra of planting the phone and accused Robinson and Acerra of mishandling witnesses (at the Sanchez photo viewing) and subsequently removed Acerra from the task force. "How long was Acerra off the case?" Scapicchio asked Detective O'Leary.
"Days," he replied, stressing, "He was reinstated." Asked, "How did he get put back?" O'Leary said, “I don’t remember; you’ll have to ask Phyllis Broker." He said he didn't follow up the matter with Broker and Acerra.
Questions about the pearl-handled gun
Two guns were recovered under some leaves and brush in a Dorchester field on October 6, 1993: Det. Mulligan's stolen Glock pistol and a pearl-handled, .25-caliber Raven revolver that police said was the murder weapon. This gun had a long history of being illegally passed back and forth among multiple individuals and had recently been reported as stolen at Boston's Caribbean Festival. Detective O'Leary was certain that no link regarding ownership was made to Sean Ellis, but was uncertain about Terry Patterson: "I'd have to check the report."
O'Leary described how police located the guns, which until now has not been revealed in testimony: Sean's Uncle, David Murray, tipped off Detectives Brazil and Keeler about the hiding place in the field, having learned it from Sean's friends, Kelvin Chisholm and Curt Headen, who claimed they brought the guns there.
Both Detective O'Leary and prosecutor Zabin stated that Murray made clear to police that Terry Patterson gave Sean the guns to hide.
Judge Ball expressed curiosity regarding questions about a "pearl-handled gun" that Boston detectives put to two witnesses several days before a gun of this description was found in the Dorchester field and designated the murder weapon. O'Leary was vague on this topic, saying "Detective McCarthy questioned Mulligan's girlfriend's roomie about it in this vein, and he mentioned it...[but] I don't know much."
Four cell phones under the same contract registered to Mulligan, Acerra, and Brazil
Scapicchio quizzed O'Leary about four cell phones purchased by Mulligan in May 1992, one registered to Brazil, two to Mulligan, and one to Acerra. All phones were private, not business phones, and all were covered under the same contract. O'Leary said he knew Sean's lawyers had made a discovery request for information about the four phones and any business dealings that sharing them might imply. "Did this cause you to investigate?" Scapicchio asked.
O'Leary said, “No, because we were going to where the evidence led.”
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On Wednesday, August 27th, Judge Ball suspended the hearings until November 17, 18, and 19 to allow attorney Scapicchio time to vet the Boston Police Anti-Corruption Unit’s (ACU) investigative files on Detectives Acerra, Robinson, Brazil, and Mulligan. The attorney received the files – 500-plus pages -- from prosecutors the previous day (Aug. 26), only after Judge Ball ordered their release.
These files had remained under wraps for two decades. Ellis’s trial attorney, Norman Zalkind, first sought the ACU files on Acerra and Robinson in 1994 after learning that Walter Robinson gave false testimony and presented doctored evidence in his 1992 appearance before the grand jury considering drug charges against fellow Boston officer Adelberto Lio. Scapicchio continued seeking the files through subsequent years and ultimately sued the city for access, both to them and to the ACU files on Detectives John Brazil and John Mulligan.
Scapicchio’s preliminary reading of the released ACU files has turned up an allegation of a 1991 robbery of a drug dealer in Boston's Allston-Brighton section by Mulligan and Walter Robinson in a complaint submitted in November 1993 by "a credible witness." (This 1991 robbery allegeation was reported in the Boston Globe in 1996: Ric Kahn, “1993 charge revived in police probe,” Boston Globe, February 18, 1996.) If borne out, it would be further evidence of Mulligan's link with Robinson's criminal activities – and proof that police withheld from the defense their knowledge of Robinson’s criminal behavior as he served on the Mulligan task force.
The issue for Ellis is whether a jury might have reached a different verdict had they known of Robinson’s conflict of interest – a conflict that may have colored his actions and motivations as he investigated Mulligan’s murder.
Expected to appear at the upcoming November hearings are Sean's trial lawyers, Norman Zalkind and David Duncan, and the three Mulligan task force detectives who later admitted to extensive perjury and robbery charges: Kenneth Acerra, Walter Robinson, and John Brazil. It is unclear if retired Boston Police Officer Ray Armstead Sr., the subject of the contested tip by Boston Police officer George Foley, will be in court.
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(3) ELLIS RETRIAL MOTION HEARINGS: NOV. 17-19, 2014
An edited version of this report appeared in the 11/26/14 Dorchester Reporter: "Hearings resume on Ellis bid for fourth trial," by Elaine A. Murphy (link below).
Did Dorchester’s Sean Ellis receive a fair trial? Hearings resume.
Testimony resumed on Monday, November 17, in Suffolk Superior Court to consider the retrial motion of Sean K. Ellis, convicted in 1995 of the gangland-style slaying of Boston Detective John Mulligan. At issue is not Ellis’s guilt or innocence, but whether prosecutors turned over exculpatory information about third-party suspects to his defense counsel, as required, and whether new evidence uncovered after Ellis’s conviction about the victim's participation in armed robberies with three investigating detectives would have caused his jurors to return a different verdict.
Over the three-day hearing before Judge Carol S. Ball, attorney Rosemary Scapicchio and Suffolk County Chief of Homicide Edmond Zabin interrogated Ellis's trial lawyers, Norman Zalkind and David Duncan; Sgt. Det. Daniel Keeler, who was a member of the Boston Police investigative team; and retired District Court Judge Phyllis Broker, who was the chief prosecutor during Ellis’s three trials, the first two of which resulted in hung juries. Ellis was 19 at the time of the crime and has served 21 years of his sentence of life without parole. He continues to maintain his innocence.
Scapicchio claims that prosecutors failed to turn over unredacted police reports of telephone hotline tips, some half dozen of which named specific individuals with motive and intent to murder Mulligan, and also a tip conveyed by task force Detective George Foley that fellow Boston officer Ray Armstead, Sr. plotted to kill Mulligan out of anger over advances the detective made to his 14-year-old daughter. Foley’s tip was given no credence by Sgt. Det. Keeler, who testified that he questioned Foley and, because of his “deteriorating condition,” recommended that he be stripped of his gun and badge and sent to hospital for a 30-day psychiatric evaluation.
Ellis's trial lawyers, Zalkind and Duncan, each testified they received no information from prosecutors about third-party suspects. Having now reviewed the tips, they characterized them as “spectacular” and “sensational” and said they “absolutely” would have followed them up by filing for further discovery and sending out an investigator. “This [case] was a cause celebre,” Zalkind said, recalling the high tensions in the city around Mulligan’s murder. Of Foley’s information he observed, “This would have been huge publicity: One cop killing another?”
The Commonwealth maintains that all tips in question were turned over to defense counsel. Broker testified by video that, although she had no memory of delivering specific documents while she was chief prosecutor, her handwritten circle around the Foley report number, in particular, indicated she’d done so, in accordance with her unwavering policy of, "When in doubt, give it out."
Yet Zalkind testified, “They fought me tooth and nail” over discovery information, and, in a sharp exchange, Scapicchio reminded Broker she’d opposed every defense motion for further discovery.
At issue was evidence from police investigations showing that Mulligan had a personal and business relationship with Detectives Kenneth Acerra and Walter Robinson, who later confessed to felonies. Among the material sought by Ellis's defense team were departmental records on Acerra and Robinson and information regarding Mulligan's purchase of four private cell phones shared by him, Acerra, and John Brazil (another confessed felon) under a single contract.
Reading aloud Broker’s written characterizations of the defense requests for information as containing “vague, speculative assertions" with "no materiality," and a quest for “carte blanche production of documents," Scapicchio asked Broker pointedly, “So this, then, was not part of your policy, 'When in doubt give it out'"?
Broker replied she did not have the requested documents in her possession, and “I’m not doing that without a court order…I was of the opinion they (Ellis’ defense team) weren’t entitled to it."
Scapicchio believes the admissions by Mulligan murder investigators Acerra, Robinson, and Brazil -- made after Ellis’s 1995 trial -- to falsifying search warrants and committing a string of Boston drug dealers robberies over a several-year period spanning the murder would have influenced a jury verdict. A federal investigation resulted in Acerra and Robinson’s convictions in 1998 after Brazil turned evidence on his colleagues to escape charges.
Further, Scapicchio has found two reports linking victim John Mulligan to his colleagues’ criminal schemes: 1996 federal grand jury testimony that, three weeks before his murder, Mulligan assisted Acerra and Robinson in robbing two apartments leased by Boston drug dealer Robert Martin; and a 1993 report of a Boston Police Anti-Corruption Unit investigation into charges that Mulligan and Robinson robbed two drug dealers at gunpoint in Allston-Brighton in 1991.
Prosecutor Zabin sought to downplay Mulligan’s complicity with Acerra and Robinson, pointing out that Mulligan’s name does not appear on any of Acerra, Robinson, or Brazil’s 1992 or 1993 search warrants; that the detective may well have believed the 1993 Martin bust resulted from a legitimate search warrant; and that the tip about the 1991 Brighton robbery was given anonymously by a person who declined to assist the investigation further.
Attorney Zalkind dismissed that reasoning, calling Mulligan a “rampant criminal” with a “big reputation…the most likely person in the world who’d be involved with Robinson in a crime.” He said the informant on the 1991 robbery was deemed by police to be a trustworthy source, and he characterized the Martin robbery disclosure as “the most important of all the material I’ve read,” saying, “If I’d had this in my examination of Robinson in trial, I don’t think we’d be here (defending Ellis) today.”
Scapicchio argues that the criminal ties between Mulligan, Acerra, and Robinson created a conflict of interest for the detectives as investigators and cites two specific actions she alleges they crafted to deflect discovery of their drug robberies.
First, Acerra brought forward eyewitness Rosa Sanchez -- the nineteen-year-old niece of his live-in girlfriend -- who claimed she shopped at the Roslindale Walgreens just prior to Mulligan’s murder outside the drugstore and saw Sean Ellis peering into the windows of the detective’s parked Ford Explorer as he slept inside. Mulligan was shot dead in the vehicle within the hour.
Sanchez was the only witness to identify Ellis, yet she first selected another man’s photo from the police array. Outside homicide, she had a private conversation with Acerra and Robinson in Acerra’s car and moments later was ushered back into the building by the two detectives. Shown the unchanged photo array a second time, Sanchez immediately pointed to Ellis’s photo.
Ellis’s trial lawyers motioned to exclude the ID on the grounds that Sanchez was coached to identify Ellis by the detective she called “Uncle Kenny.” Testifying under oath, Acerra disavowed a close relationship with Sanchez, saying he saw her only occasionally at family events and didn’t even know her married name. Yet in the materials released to Scapiccio by court order last August, the attorney found a federal subpoena to American Airlines requesting information about two trips Acerra possibly took with Rosa Sanchez and her mother to the Dominican Republic -- one in October 1994, two months before Acerra’s motion-hearing testimony.
Scapicchio also queried Acerra’s discovery of Mulligan's missing cell phone in his SUV several days after the murder – after crime scene technicians did not find it at the scene and police declared the phone missing. Several days later, in the police crime lab, Acerra initiated another search of the vehicle and found the phone in the vehicle’s center compartment, between the front seats. The police report stated the phone was there all along, but “no one knew anyone was looking for it."
Scapicchio alleges that Mulligan’s phone had been “wiped clean” of all phone numbers to remove incriminating evidence and questioned Phyllis Broker about her demand that Acerra be questioned about the phone. Broker had no memory of this, but she did recall asking Boston Police to remove Acerra from the task force. She denied it was due to the cell phone incident and chalked it up to Acerra’s "incompetence."
Recapping that Acerra's removal by Broker was bitterly opposed at the time by Detectives' Union President Tommy Montgomery, who wrote to District Attorney Ralph Martin 2nd insisting that Acerra be reinstated and that Broker be fired, Scapicchio questioned Broker about the Montgomery letter (which was publicized). "I don't know why the letter was sent,” Broker said, although she conceded that the tone of communications between her and Boston Police was “not good.”
The Boston Globe reported in 1993 that at a “hastily called meeting” between Broker and Police Commissioner William J. Bratton, an agreement was reached whereby Broker could stay on as chief prosecutor if she stopped questioning Acerra and Robinson. Ultimately, Broker remained on the case, and Acerra was reinstated to the Mulligan task force.
“It was a very difficult time," Broker testified. "A police officer was killed…my boss [DA Ralph Martin 2d] was standing for election…there were strained relations between my office and the Boston Police Department…and all of those things together created the perfect storm."
Acerra and Robinson were both subpoenaed for the Ellis hearings, but did not appear, exercising through their attorneys their fifth-amendment rights against self-incrimination.
Following the appearance of a final witness on December 10, Judge Ball will begin her deliberation on whether Ellis’s third trial was unfair, as attorney Scapicchio claims.
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(4) ELLIS RETRIAL MOTION HEARING: DEC. 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 (link below).
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.
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.
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.
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.
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Video of Attorney Scapicchio's Comments after final arguments on April 9, 2015.
(5) ELLIS RETRIAL MOTION HEARINGS: Final arguments, April 9, 2015
(Note: an edited version of this report by Elaine A. Murphy appeared in the April 16, 2015, Dorchester Reporter: "Ruling on Ellis's new trial bid seen due by end of May."
April 16, 2015
Final arguments in Suffolk Superior Court last week wrapped up seven days of hearings to consider whether Dorchester's Sean K. Ellis, convicted in 1995 of Boston Detective John Mulligan's 1993 murder, deserves a new trial. Ellis has always maintained his innocence, and his attorney, Rosemary Scapicchio, has uncovered new evidence that she claims would have influenced his jurors' deliberations, had they heard it. Arguing for the Commonwealth was Assistant District Attorney (ADA) Paul Linn, assisted by Suffolk County Chief of Homicide Edmond Zabin.
Scapicchio has found two official reports detailing allegations that victim John Mulligan committed armed robberies of drug dealers with his friends and colleagues, Detectives Walter Robinson and Kenneth Acerra, one in 1991 and a second in 1993. Acerra and Robinson both later pleaded guilty to a string of such crimes after Detective John Brazil, a confessed member of the men's robbery scheme, turned evidence against his colleagues in exchange for immunity from federal prosecution.
The relevance for Ellis is that Acerra, Robinson, and Brazil were members of the elite task force investigating Mulligan's murder -- a conflict of interest, Scapicchio argues, for the men needed "to cover the tracks of what Mulligan and they were doing." Motivated to "shut down the investigation as quickly as they could, so their own criminal activity didn’t get exposed," they "railroaded a black kid who was out buying diapers," she charged.
Indeed, the three corrupt detectives each had a hand in the evidence used to convict Ellis, most notably a photo ID of him made by the teenage niece of Acerra's domestic partner, a witness Acerra brought forward without acknowledging their family relationship until months later. Defense lawyers called the niece's ID "tainted," since she first identified another man, but changed her mind after speaking privately with both Acerra and Robinson.
Detective Mulligan was shot five times in the face just before dawn as he slept in his SUV parked in the fire lane of a Roslindale Walgreens drugstore. "It was an execution," said then-Police Commissioner Bill Bratton, and investigators proceeded on the theory of "a message" sent by someone bent on revenge, a person known to the street-smart detective, for he'd allowed his assailant to sit in his passenger seat.
Yet within ten days, Ellis, then 19, and a friend, Terry Patterson, 18, were arrested, and prosecutors' theory of the case changed to that of a "random robbery" by two teens who saw the cop sleeping, decided they wanted his gun for a trophy, and shot him from curbside through a three-inch opening of the SUV's window.
Ellis and Patterson had stopped at Walgreens that morning, and Ellis purchased diapers in full view of ceiling-mounted video cameras. Afterwards, he voluntarily spoke to police and told them his story, and police later retrieved his box of LUVS with their timed and dated Walgreens receipt.
Terry Patterson was convicted in January 1995, largely because his fingerprints were found on the door frame of Mulligan's vehicle; yet he was released in 2006 after the Massachusetts Supreme Judicial Court disallowed the fingerprint evidence as "unscientific" and "unreliable."
Sean Ellis's September 1995 conviction came only at his third trial, after two previous jury panels deadlocked over whether he was in a joint venture with Patterson. He was sentenced to life without parole, and the years since have been pocked with legal setbacks: a 1998 retrial motion submitted by his trial lawyers, Norman Zalkind and David Duncan, was denied, as was their appeal.
At the hearings, Scapicchio brought out two actions she says Acerra and Robinson took to cover their illicit drug raids: According to two witnesses, within hours of the murder Robinson went to Mulligan's condominium and removed money from the slain detective's coat pocket -- money he never reported to the department, Scapicchio notes. And Kenneth Acerra discovered Mulligan's cell phone in a "secret compartment" of his SUV a full week after crime scene technicians failed to find it there and it was declared stolen. Scapicchio contends that Acerra removed the phone, wiped it clean of numbers (a claim ADA Linn disputes), and then put it back. No fingerprints were found on the phone -- not even Mulligan's.
The attorney feels a new jury should have the chance to review the evidence, armed with today's knowledge that these Mulligan task force members, deemed among "the best and the brightest" by lead investigator Sgt. Det. Thomas O'Leary, were actually linked with Mulligan in crimes. Referring to those crimes, Scapicchio noted in an interview, "We did have some of these pieces before, but we definitely did not have the connection with Mulligan. And [at the hearings] we were able to make those connections...show that each one of the officers...was involved in central portions of this investigation, which created a conflict that should give us a new trial. If we'd had that evidence...the jury might have believed our side."
ADA Paul Linn called the two robberies involving Mulligan "isolated incidents" occurring 18 months apart. He said the 1991 robbery, allegedly committed at gunpoint by Mulligan alongside Robinson in an Allston-Brighton parking lot, was "uncorroborated" (although police deemed the sole informant's reliability "good," and the incident was under investigation), and he said there was no evidence that Mulligan knew the 1993 drug raid led by Mulligan murder investigators Acerra, Robinson, and Brazil of two Boston apartments was illegitimate.
He said Terry Patterson's statement that he parked on a side street after shopping at Walgreens and walked back to the store with Ellis "to buy a cigar," plus sightings by several witnesses of two black men "fitting the men's general descriptions" and the fact Patterson changed the appearance of his vehicle after the murder, all led to the "inescapable conclusion that one of these men committed the crime." Yet no positive ID made was made of either man, save the photo ID of Ellis made by Detective Acerra's family relative, and no triggerman has ever been named.
Scapicchio also claims that tips from the police telephone hotline, several of which named specific suspects and motives, were withheld from Ellis's trial attorneys, as was a detailed lead from one Boston officer that another officer was behind the slaying. Norman Zalkind and David Duncan each testified they did not receive these tips and, if they had, would have sent out an investigator and submitted motions for further discovery, as was their demonstrated practice.
ADA Linn countered that the Commonwealth's internal coding system indicated the tips were turned over. He chalked up the discrepancy to "faulty memories" and "wistful thinking" by the attorneys, these 20 years later. He dismissed the internal police tip as "patently absurd."
Judge Carol Ball's ruling is expected by the end of May. Should she vacate Ellis's conviction, it is unknown whether the Commonwealth will pursue murder charges against him yet a fourth time. Arrested at age 19 and now 40, Sean Ellis, incarcerated for more than half his life, has been unwavering in his claim of innocence.