November 17-19, 2014

  "Hearings resume on Ellis bid for fourth trial"

An edited version of this report by Elaine A. Murphy appeared in the 11/26/14 Dorchester Reporter.

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.