Hearing, Massachusetts Supreme Judicial Court, May 5, 2016
One year ago, Suffolk Superior Court Judge Carol S. Ball, who has since retired, overturned Sean Ellis's convictions for the murder and armed robbery of Boston Det. John Mulligan in September 1993 based on:
o tips about other suspects withheld by the Commonwealth from Ellis's trial attorneys, and
o newly discovered information linking victim John Mulligan with an ongoing robbery scheme perpetrated by three fellow detectives -- who served as investigators of his murder
Judge Ball found Ellis's arrest and conviction a "rush to judgment" and agreed with the defense argument that the victim's participation in drug dealer robberies with three detectives who investigated his murder -- and who collected much of the evidence used against Ellis -- gave these detectives a conflict of interest and bias. Had Ellis's jurors known the victim and these men were partners in crime, it may have influenced their verdict.
The Commonwealth appealed Judge Ball's decision, and arguments were heard by the Massachusetts Supreme Judicial Court before an overflow gallery on Thursday, May 5, 2016.
Arguing for the Commonwealth: Suffolk County Assistant District Attorney (ADA) Paul Linn
Arguing on behalf of Sean Ellis: Appellate attorney Rosemary Curran Scapicchio
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A miscarriage of justice?
Justice Geraldine Hines framed the debate by pointing out that Judge Ball stated in her ruling that, after considering all the surrounding circumstances, she considered Ellis's arrest and conviction a "rush to judgment," and that her concerns about fairness motivated her decision to grant him a new trial.
If Judge Ball found "a substantial miscarriage of justice," Justice Hines asked ADA Paul Linn, "shouldn't we have the same concern?"
Linn's response was that Judge Ball's ruling is "riddled with error" and there is no justification for a new trial. He maintained that the Commonwealth turned over all tips to police to Ellis's defense attorneys, as required. Linn said even if all of Judge Ball findings were accurate about the withheld tips and Mulligan's involvement with corrupt fellow detectives Kenneth Acerra, Walter Robinson, and John Brazil, there is still no justification for a retrial because "all evidence leads to Ellis and [co-defendant Terry] Patterson."
The gun evidence
ADA Linn focused on the gun evidence: Ellis was convicted in his first trial of possessing Mulligan's stolen revolver and the presumed murder weapon, a .25 caliber pearl-handled gun. Police found both weapons hidden under leaves in a Dorchester field on October 7, eleven days after the murder. "Once you have Ellis in possession of the guns, you have overwhelming evidence that the murder was committed by either Ellis or Patterson or both of them in combination ... It all comes back to that,” Linn said.
At Ellis' trial, his friend, Letia Walker, testified (under a grant of immunity) that Ellis procured the weapons from a hiding place in his cousin's apartment on September 30th and brought them to her bedroom, and that a mutual friend subsequently removed and hid them. According to Linn, Walker's fingerprint was found on one of the gun's clips.
Attorney Rosemary Scapicchio disputed Walker's account, pointing out the apartment in which the guns were purportedly hidden had been the scene of a double homicide the previous day, September 29. (Ellis's cousin and her sister were murdered there by an ex-boyfriend, who was later convicted.) Lengthy follow-up questioning by the justices showed their skepticism that Ellis could have entered a crime scene surrounded by police tape and found weapons in an apartment that presumably had been thoroughly searched by detectives.
Scapicchio said that, for a retrial, she would investigate "what the police officers did to get [Walker] to tell the story that she told" and would also retest the gun clip, for she doesn't believe Walker's print was on it.
Citing questions that detectives posed to two witnesses about a pearl-handled .25 caliber gun that Mulligan may have owned -- questions posed on October 2nd, 5 days before a gun of this exact description turned up in a Dorchester field and was declared the murder weapon -- Scapicchio said, "There is no explanation for questions about a pearl-handled gun before it was found. How did people involved in this investigation know it had a pearl handle?"
She then drove home her point: "The guns were absolutely planted."
The tip concerning the guns' whereabouts was related to investigators by the corrupt Det. John Brazil.
The new information on Mulligan's crimes committed with investigators
Justice Fernande Duffly asked ADA Linn how the court should deal with a Mulligan homicide investigation in which "the police department knew there were corrupt detectives and the victim was a part of it, with the detectives having "their own, compelling incentive" that the investigation would not "turn in their direction?"
Chief Justice Ralph Gants called this "a unique Bowden defense" and characterized the newly found information about Mulligan's involvement in his fellow officers' crimes "a game changer":
“They wanted to make sure that the investigation did not lead to anything that may inculpate them, and I would think that if this was known at trial, the argument would be reasonable doubt.”
Pointing out that neither Ellis nor Patterson had a motive to kill Mulligan, the chief justice observed that the withheld tips named many people with such motives, including drug dealers the detective allegedly ripped off. He then connected the unexplored tips with the ongoing corruption: “The fact of the matter is that if one had examined all of the persons who had a motive to kill Detective Mulligan, it would have led to revelations of the corrupt scheme.”
(The Commonwealth's case theory was that the murder was a random crime of opportunity carried out by two teens, Sean Ellis and co-defendant Terry Patterson, who saw the detective sleeping and determined to get his gun as a trophy.)
ADA Linn responded that, despite Acerra, Robinson, and Brazil's possible motivation to lie, "there is still no evidence that any of the corrupt detectives procured false evidence in this case.”
Attorney Scapicchio countered by citing as suspicious the "discovery" by Detective Kenneth Acerra of Mulligan's missing cell phone in the slain detective's SUV five days after the murder. Acerra claimed he was searching for a phone charger that he knew his friend kept when he found the cell phone in the center compartment of Det. Mulligan's vehicle. The phone had not been found by police who inventoried the contents of Mulligan's SUV after the murder, and so was declared stolen.
ADA Linn said Acerra's purported phone discovery was known at the time of Ellis's trial, but Judge Ball did not find credible two different police explanations of the incident: Sgt. Robert Foilb (retired), who took the initial inventory, testified at the Ellis evidentiary hearing that he missed the phone because it was in a "secret compartment." Crime scene photos showed that this small tray only half-covered the center compartment's contents. Secondly, the Boston Police report of Acerra's discovery stated that the phone was in the vehicle all along, but officers didn't think anyone was looking for it and so didn't report it.
Scapicchio also cited the evidentiary hearing testimony of witness Michelle Hagar, an associate of Mulligan's who said she was visited by two detectives shortly after the murder who told her she was the last person called from Mulligan's phone.
After Hagar testified, the defense attorney pointed out, "So, someone had those numbers." No police report was ever filed of Hagar's interview.
Acerra, Robinson, and Brazil's roles in the investigation
Asked by Justice Hines about Acerra, Robinson, and Brazil's roles in the 50-man task force in which they were not calling the shots, attorney Scapicchio said the corrupt trio was involved "from beginning to end" in gathering evidence and listed several key actions the detectives took:
- Dets. Acerra and Robinson were the first police officers to enter Mulligan's condominium after the murder, and two witness reported that Robinson removed money from Mulligan's coat closet -- money he never turned in to the department.
- Dets. Acerra and Robinson and Brazil brought forward eyewitness Rosa Sanchez (a teen with family ties to Acerra) on the day of the murder -- the only witness to tie Ellis with the victim.
- Dets. Acerra and Robinson were present at Sanchez's first photo ID session, when she pointed to a person who was neither Ellis nor Patterson. (Sanchez identified Ellis at a second viewing of the photos moments later -- after speaking privately with Acerra and Robinson outside the building .)
- Acerra subsequently got Rosa and her husband relocated from Humboldt Avenue, Roxbury, to a suburban apartment in Norwood at the Commonwealth's expense.
- Det. John Brazil took Ellis's statement.
- Det. Walter Robinson arrested Ellis.
Court documents filed by Scapicchio also state that:
- Det. Kenneth Acerra and his E-5 supervisor, Sgt. Det. Lenny Marquardt (an unindicted co-conspirator in Acerra's ongoing robbery scheme) picked up a teenage friend of Ellis's and transported him to the station, where he confessed to hiding the guns in the field on Ellis's behalf.
- Det. John Brazil, saying he was tipped, directed police cadets to the Dorchester field where they found the two weapons.
- Det. Acerra arrested Terry Patterson.
Why Frame Ellis?
Justice Francis Spina asked attorney Scapicchio, "Why [did police] pick on Ellis ... why hang the whole thing on Ellis -- plant guns, doctor the ballistics evidence?"
She said Ellis became a scapegoat when, during a 6-hour police interview about his cousins' murders on September 29th, he told detectives he'd been at Walgreens with one of the cousins. Ellis said he was buying Pampers and told police where to find the diapers and their receipt -- even gave them Terry Patterson's cell phone number to confirm his story.
“He puts himself right in the middle of a homicide of a detective. Who would do that if they actually committed a crime? … Now they have someone who they can hold out to the public who actually admits he was there.”
Corrupt Detective John Brazil led this questioning and, Scapicchio says, was "desperate" to make a quick arrest to halt the investigation.
ADA Linn closed his presentation by saying, "Despite all that the defense raises," the evidence "keeps coming back to Ellis and Patterson."
Attorney Scapicchio implored the justices, "I would encourage you to look at entire record here ... There's no way Ellis got a fair trial."
The justices have 120 days to reach a decision on whether Judge Ball's ruling giving Sean Ellis a retrial will stand. Given that several justices are retiring this summer, the SJC's assessment could come as early as July.
Suffolk County prosecutors have said that, should they lose their appeal, they will try Ellis again. It would be his fourth trial for the same crime.