Retrial Motion #1, 1998
The guilty pleas of Detectives Kenneth Acerra and Walter Robinson in March 1998, for crimes related to their decade-long criminal scheme of falsifying warrants and robbing drug dealers, set the stage for defense attorney Norman Zalkind and his partner, David Duncan, to submit a retrial motion for Sean Ellis based on the entanglement of these detectives and their partner in crime, Det. John Brazil, in evidence key to Ellis's murder conviction.
The gist of their 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? (Fifteen years later, in 2013, Det. John Mulligan was revealed as an accomplice in the detectives' criminal scheme.) 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” that got “salvaged” by the corrupt detectives, which was “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 news reports of a 1991 drug robbery allegation against Robinson and Mulligan that was under investigation in 1993 -- the year of Mulligan's murder -- 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'd submitted September 1994 requesting information about the detectives’ untruthfulness in other investigations or prosecutions.
By then it was 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 misconduct 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 the Lio evidence, they argued, they could have impeached him at the pretrial 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."
Retrial motion denied, 1999
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.
Attorneys Zalkind and Duncan appealed the Ellis 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?"
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 in the photo array at homicide 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 subsequent court proceeding, Sanchez was unable to identify this "stalker's" photo when shown the same array again, demonstrating her utter 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, 2000
In December 2000 the SJC denied the Ellis appeal.