Justice for Sean Ellis

Sean K. Ellis spent nearly 22 years in prison for the 1993 murder of Boston Detective John Mulligan. He steadfastly maintained his innocence, and in 2015 his conviction was overturned - a ruling unanimously upheld in 2016 by the Mass. SJC. Yet he is facing a retrial in spring '18 on the same charge.

CORRUPT INVESTIGATORS

Five months after Sean Ellis was convicted, the Boston Globe's award-winning investigative Spotlight Team broke the story of corruption in Boston's Area E-5 station house -- the professional home of victim John Mulligan and task force investigators Kenneth Acerra, Walter Robinson, and John Brazil (until 1992).

Acerra, Robinson, and Brazil were exposed as dirty cops -- robbers perjurers, and exortionists on a grand scale. Partners Acerra and Robinson were subsequently indicted on federal charges and convicted; John Brazil, whom the two had "mentored," turned evidence and escaped charges.

It happened seemingly overnight:

“Corruption probe shakes up Boston Police Detective Unit; The case of the disappearing money,” read the February 10, 1996, Boston Globe headline. The story read like pulp fiction:

Tearing apart a West Roxbury apartment in search of drugs, a Boston police detective discovered a strongbox filled with cash. “I like this,” Kenneth Acerra exclaimed, an eyewitness recalled. He stuffed his coat with bundles of money and shared his bounty with his partner, Detective Walter F. Robinson Jr., tossing him thousand-dollar stacks, said the witness, who asked not to be named.

Accusations of police ripping off drug dealers usually dissolve into crossfire charges of lying between police and criminals. But it was not the first time for these two detectives, and there was something different about this case...

The Globe stayed on the story, which unfolded like a movie drama over the next two years.

All three detectives proved to be corrupt cops who falsified search warrants to gain entry to the apartments of known drug dealers and illegal immigrants. Once in, they demanded money and drugs, and in exchange, either did not report the dealers, or got the charges reduced. They extorted additional payments for getting the charges dismissed entirely by not showing up for their court appearances.

Most times, the detectives claimed not to have found any loot, falsifying their police reports. Occasionally they turned in a small portion of the drugs and money, keeping the bulk for themselves. Considered workhorses by their colleagues for their aggressive policing, the trio in truth reported finding drugs in less than half their 1992 searches, just forty-five percent of the time, and finding money with drugs only twenty-one percent of the time. (Colleagues in comparable districts found money in 66% of their searches.)  “It is axiomatic that money is found with drugs during street-level arrests...Once you kick in the door, you almost always find cash,” noted a former federal prosecutor.

The Globe's series ignited an internal Boston Police investigation, and Acerra and Robinson were stripped of their badges. Soon federal prosecutors came in and were joined by the IRS, and secret grand jury proceedings got underway. Local drug dealers and illegal immigrants found themselves in the unusual position of escaping punishment for their crimes in exchange for testifying against the criminal detectives.

The feds learned that the corrupt scheme had netted the corrupt cops hundreds of thousands of dollars and had gone on for over a decade -- before, during, and after the Mulligan murder and trials.

Federal grand jury transcripts reveal that

2 1/2 weeks before his murder

John Mulligan was an accomplice of

Acerra and Robinson's

in an armed robbery of two Boston apartments

used by drug dealer Robert Martin.

After eighteen months of probing, in March 1997, Assistant U.S. Attorney Ted Merritt indicted Acerra and Robinson on over 40 counts of perjury and armed robbery. (Brazil was granted immunity from prosecution in exchange for informing on his colleagues.) Acerra and Robinson at first vigorously denied all charges, but a year later pleaded guilty in return for reduced (3-year) federal sentences and $100,000 fines as restitution to their victims, some of whom were innocent civilians. Brazil subsequently resigned from the force.

* * *

After the convictions, several cases involving the corrupt detectives began to fall apart. In one instance, Detective John Brazil was accused by the defendant in a murder case of falsifying a police report to ensure his conviction.

Additional revelations of police corruption started rolling in, until the Boston Globe's editorial board declared a "Police Emergency in Boston." Among those charged, Sean Ellis's chief interrogator, Boston homicide Detective William Mahoney, was revealed as having "testilied" (lied under oath) in the trial of accused murderer Donnell Johnson, who was convicted.  (After additional information surfaced in his case, Johnson was freed.)

Sean Ellis's trial attorneys, Norman Zalkind and David Duncan, began readying a motion for a new trial for Ellis. After all, Acerra, Robinson, and Brazil were the very men who brought forward Acerra's teenaged relative, Rosa Sanchez, as a witness, and, in the lawyers' belief, manufactured her photo ID of Sean. Acerra was also implicated in mishandling Mulligan's cell phone -- "finding it" in the murdered detective's SUV a week after his murder, despite a thorough inventory of the vehicle by crime-scene technicians.

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* * *

The Boston Globe's Pulitzer Prize-winning columnist (and now Brandeis University journalism professor) Eileen McNamara took a jaundiced view of the convicted detectives' roles in Sean Ellis's conviction. After their indictments she devoted an entire column calling for a retrial of Ellis -- in a proceeding unsullied by dirty detectives:

“Indicted cops taint Ellis trial"

It took the Commonwealth of Massachusetts three trials to send Sean Ellis to state prison in Walpole. It should take one more court appearance to send him home to await a new trial in the murder of Boston Police Detective John J. Mulligan… There was no physical evidence linking Sean to the murder, and no motive given beyond the ‘street trophy’ theory – for a killing that had all the markings of an assassination... An itchy street punk trying to snatch a gun dispatched his victim with such ferocity and precision?

The Mulligan case has stunk from the very beginning… and the odor of corruption that hung over the cop who was killed and over the cops who investigated his killing has to make one ask whether this case really was just a random act of violence....

Recapping that prosecution witness Rosa Sanchez “initially picked another man out of a police photo array” and pointed to Sean only after “an emotional chat” with Acerra and Robinson, McNamara asked:

... Is it such a leap to suspect that cops accused of falsifying search warrants, fabricating confidential informants and shaking down drug dealers might also have railroaded a street thug for the murder of...a fellow Area E detective whose own reputation was almost as shady as their own?

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Retrial motion 1998

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 Acerra and Robinson's guilty pleas in March 1998 set the stage for defense attorney Norman Zalkind and his partner, David Duncan, to submit a retrial motion to Suffolk Superior Court based on the entanglement of the detectives in evidence key to Sean’s conviction.

The gist of the September 1998 motion was, How can you trust corrupt detectives with a proven modus operandi of lying -- perjury on warrants and in court -- with bringing forward impeccable evidence in the murder case of their best friend and colleague? (It was later revealed they were all partners in crime).  Acerra, Robinson, and Brazil’s crimes of perjury and obstruction of justice were committed all through the Mulligan murder investigation and trials, the attorneys argued, and hence constituted “newly discovered evidence that fact-finders needed to hear.”

They said the detectives’ pattern of falsifying evidence effectively snuffed out their credibility, both as investigators and witnesses in Sean’s hearings and trials, particularly as concerned Rosa Sanchez’s photo ID of Sean, which began as a “failed identification” but got “salvaged” by the corrupt detectives -- “short work for these officers,” given their "unhesitating willingness to...use their office to achieve their personal objectives.”

Finally, the defense put on the table a 1991 drug robbery allegation against Robinson and Mulligan that was under investigation in 1993 by the police anti-corruption unit of Internal Affairs. The attorneys charged that prosecutors were well aware of Acerra and Robinson’s prior bad acts and “carefully and deliberately withheld the evidence in the discovery phase of the case.”

To support this allegation, they appended a "Motion for Further Discovery” they had submitted September 1994 requesting information about the detectives’ untruthfulness in other investigations or prosecutions.

By then it had been well publicized that Detective Walter Robinson lied in his testimony to a grand jury investigating the conduct of a police steroid sting aimed at fellow officer Adelberto Lio of Area E-5. (Robinson gave an account that was contradicted by an eyewitness, and he produced a photo of the defendant's vehicle that was found to be doctored.)  Because of Robinson's false testimony,  D.A. Ralph Martin, II was forced to drop drug charges against Lio.

Sean's defense attorneys charged that Chief Prosecutor Phyllis Broker knew of Robinson’s behavior in the Lio case, which was why she had him and Acerra questioned immediately after Rosa's bungled photo ID session. Had the defense been able to use the information about Robinson's falsifying evidence in the Lio case, they said, they could have impeached him at the pre-trial hearing to suppress Rosa Sanchez’s ID, and indeed impeached “the entire police investigation of this case.”

The D.A.'s office countered by saying "the Ellis motion relied on 'irrelevant' and 'inadmissible' information about the detectives' actions in unrelated cases." The court agreed, and the 1994 defense motion was denied.

Retrial motion denied

In March 1999, Suffolk Superior Court Judge James D. McDaniel, Jr. (Ellis's trial judge) denied the Ellis retrial motion, refusing to speculate that the corruption of Acerra, Robinson, and Brazil in drug cases transferred to this, a murder case. He bought Phyllis Broker’s counter argument that Acerra and Robinson and Brazil's crimes entailed a mere “money-making scheme…in narcotics cases" and that the defense “offered absolutely no proof” the detectives rigged the Mulligan investigation beyond a gut belief that “if the detectives lied in other cases then they must have lied in this one.”

Moreover, Acerra and Robinson played only "minor roles in the Mulligan murder investigation, Judge McDaniel ruled.

Appeal

Attorneys Zalkind and Duncan appealed the retrial motion's denial to the Massachusetts Supreme Judicial Court (SJC) in a 90-page brief submitted on Valentine's Day 2000. 

As David Duncan told the Boston press, "Those guys (Acerra and Robinson) had a modus operandi of conducting their business which involved manufacturing evidence to go in and search places and lying about things they found...Do you think they were going to change their spots and suddenly become clean cops just because they were on a homicide investigation?"

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Among the points Ellis's attorneys raised:

  • A third trial for Ellis violated his right against double jeopardy: it was not a "manifest necessity," but rather, attributable to confusing and "turgid" instructions by the trial judge on the issue of joint venture that hindered jurors' deliberations.
  • The defense was barred from questioning Walgreens witness Evony Chung about having an outstanding drug charge dropped and $3580 in confiscated money returned to her -- rewards, they believed, for adjusting her testimony about arrival times to Walgreens over the course of Sean's three trials to better fit the Commonwealth's timeline.
  • The defense was also denied the ability to confront Rosa Sanchez in court with a man she said was stalking her - a man whose photo she saw in the photo array at homicide that upset her so much that she misidentified Ellis in her haste to leave the station (or so she claimed). The lawyers pointed out that during a previous court proceeding, Sanchez was unable to identify this "stalker's" photo when shown the same array again -- demonstrating Sanchez's unreliability as an eyewitness.

In September 2000 David Duncan argued his brief before the Massachusetts Supreme Judicial Court.

Sean Ellis was not permitted to attend the session.

Appeal Denied

In December 2000 the SJC denied the Ellis appeal.

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Free at last, June 3, 2015. Sean Ellis leaves Boston's Suffolk Superior Court holding his mother, Mary's, hand.  Arrested at age 19,  he spent more than half his life in prison for a crime he maintains he did not commit.  (Getty Images)

Free at last, June 3, 2015. Sean Ellis leaves Boston's Suffolk Superior Court holding his mother, Mary's, hand.  Arrested at age 19,  he spent more than half his life in prison for a crime he maintains he did not commit.  (Getty Images)

Copyright 2013-17 Elaine A. Murphy