Adjusting to Freedom 2015
SEAN ELLIS DESERVES A CHANCE FOR REAL JUSTICE
by Eileen McNamara
5/14/2015 Article from WBUR Cognoscenti blog, reprinted with permission from the author.
Sometimes, the criminal justice system finally gets it right. Even for a black man. Even in Boston. Sometimes, it takes a team of women to get it done.
When Sean K. Ellis walks free on bail for the murder of a corrupt Boston police detective that he has insisted through three trials and 21 years in prison he did not commit, he will have three righteous women to thank.
Suffolk Superior Court Judge Carol Ball granted Ellis’ motion for bail as well for a new trial in the slaying of Detective John Mulligan after a blistering decision excoriating the prosecution for withholding evidence of police misconduct from the defense for decades.
Sometimes, the criminal justice system finally gets it right. Even for a black man. Even in Boston.
That evidence, implicating dirty cops in the framing of Ellis, would never have come to light without Rosemary Scapicchio, the relentless defense lawyer who in 2003 convinced another judge to vacate the conviction of Shawn Drumgold for the murder of Darlene Tiffany Moore, a 12-year-old girl caught in crossfire as she sat on a mailbox in Roxbury on a hot August night in 1989. Last year, Scapicchio won Drumgold a $5 million civil settlement from the city for the 14 years he spent wrongfully imprisoned.
Ellis, now 40, has spent more than half his life behind bars for Mulligan’s death but it is Elaine Murphy’s memory of the 8-year-old METCO student who played with her son in their Needham backyard that has inspired her to work for his release for the last two decades. “One essential truth moved me to action,” she writes on the website she created to track developments in his case. “Having learned of Sean’s conviction and his protestations of innocence, I could never go back to not knowing.”
What she, and the rest of us, now know is that there are alternative theories to the execution-style shooting of Mulligan in the early morning of Sept. 26, 1993, than the circumstantial case that sent Ellis to prison after two mistrials and a third retrial. The 52-year-old detective was shot five times in the face while he slept in his car during a paid detail outside a Walgreens pharmacy on American Legion Highway in Roslindale. The prosecution argued that Ellis and an accomplice killed Mulligan to steal his service revolver as a street “trophy.” The defense argued that Ellis had been in the drugstore buying diapers at the time of the shooting. He produced the receipt.
In her motion for a new trial, Scapicchio noted that evidence withheld from the defense linked Mulligan to a scheme in which several Boston cops, himself included, supplemented their incomes by ripping off neighborhood drug dealers. Two of those dirty cops, Walter F. Robinson and Kenneth Acerra, were assigned to investigate Mulligan’s murder. Both were convicted in 1999 on federal corruption charges for stealing cash, drugs and guns and for fixing criminal cases in exchange for payoffs.
Last year, both cited their Fifth Amendment right against self-incrimination and refused to testify at Ellis’ hearing for a new trial.
“From the beginning of the investigation, the apparent criminal misconduct of Detectives Acerra, Robinson, Brazil, and Mulligan gave the surviving partners a motive to cover up any evidence of their own crimes and to contribute to a quick arrest and conclusion to the investigation so that it did not turn in their direction,’’ Ball wrote in her decision granting Ellis a new trial. “Defense counsel should have had the opportunity to make that argument to the jury.’’ (Former Detective John Brazil was granted immunity from prosecution in exchange for his testimony against on his colleagues.)
…there are alternative theories to the execution-style shooting of Mulligan in the early morning of Sept. 26, 1993, than the circumstantial case that sent Ellis to prison after two mistrials and a third retrial.
Boston was a different city when Ellis was arrested. Drug violence was rampant in the city’s housing projects. Drive-by shootings between rival gangs were commonplace. The deaths of innocent young people caught in the crossfire led to tough new sanctions against juvenile offenders, automatically transferring children as young as 14 to adult court for trial. After the Mulligan shooting, a big city columnist could, under the headline: “Where beasts prowl the streets,” lionize the dead cop and muse without fear of protest about “predators” and “animals” like Sean Ellis who he described as a “plague” destroying inner city neighborhoods.
Such hysteria fueled demands for quick arrests and too many miscarriages of justice in Boston’s black community. Just as Sean Drumgold was exonerated in the killing of Tiffany Moore, Donnell Johnson was released from prison after serving five years for the shooting death of 9-year-old Jermaine Goffigan on Halloween night in 1994 after officials conceded he had been wrongly convicted on tainted eyewitness identifications.
Now comes Sean Ellis, 20 plus years after a corrupt system railroaded him into a prison cell, asking for no more than a fair trial. That cannot be too much to ask. Even for a black man. Even in Boston.
Eileen McNamara teaches journalism at Brandeis University. A Pulitzer Prize-winning former columnist for The Boston Globe, she is working on a biography of Eunice Kennedy Shriver.
NO MORE THIN BLUE LINE
by Elaine A. Murphy
(Adapted from Elaine A. Murphy, "Time for real justice in the case of Sean Ellis," Dorchester Reporter, May 13, 2015.)
In 1993, Boston Detective John Mulligan was brutally murdered with five shots to his face as he slept in his parked SUV outside a Roslindale Walgreens drugstore. The detective's Glock pistol was stolen from its holster.
In 1995, Suffolk County prosecutors convicted Dorchester’s Sean Ellis of that murder and armed robbery, but only at his third trial, after his two previous trials ended with hung juries.
Ellis was 19 at the time of the crime. He has always maintained his innocence. Now 40, he has spent more than half his life in prison.
Last week, in a stinging rebuke to Boston Police and prosecutors of that era, Superior Court Judge Carol S. Ball reversed Sean Ellis's murder and armed robbery convictions, citing prosecutorial failures and bias by corrupt investigating detectives.
Newly unearthed evidence, withheld from Ellis’s attorneys, has revealed that Detective Mulligan participated in armed robberies of drug dealers with three fellow Area E-5 detectives, Kenneth Acerra, Walter Robinson, and John Brazil. Because all three men were "involved in nearly every aspect of the homicide investigation that led to Ellis's prosecution," Judge Ball ruled that defense attorneys should have been able to make the argument that, in a “rush to judgment,” the corrupt detectives railroaded Ellis to end the probe into Mulligan’s police work before it “turned in their direction.” One robbery committed by Acerra, Robinson, and Mulligan occurred just 2 ½ weeks before his murder.
Acerra and Robinson were imprisoned in 1998 for their felonies; Brazil escaped prosecution by turning evidence. Their taint of the Mulligan investigation has not been acknowledged until now.
Suffolk County DA Daniel F. Conley has vowed to fight on, citing "direct, reliable, and corroborated evidence" against Ellis. I disagree. As someone who knew Sean Ellis as a Metco student in Needham, I've followed his case closely for the past 22 years and have concluded that the case against him is remarkably weak.
Sean admitted being at Walgreens that morning and spoke voluntarily to police, explaining he'd bought diapers for a relative. Police found his box of Luvs with its timed and dated receipt. As his defense attorney, Rosemary Scapicchio, notes, would you place yourself at a murder scene with a receipt unless you knew you were innocent?
A co-defendant, Terry Patterson, pleaded guilty to manslaughter in Mulligan's death. Sean stands convicted of helping to hide guns for Patterson after the crime (three other teenagers claimed they'd handled the guns, but were granted immunity from prosecution). Evidence hiding is accessory after the fact -- not murder one.
There was no physical evidence connecting Sean to the slain detective. The only ID of him was made by a teenager --with family ties to Detective Acerra-- who said that 45 minutes before the murder, she saw an African–American youth peering into Mulligan’s car window as he slept. She identified Sean from photos, but only after she'd first identified another man. Her second look at the photos, in which she fingered Sean, was engineered by Acerra and Robinson, who brought her back into the station house to do it, after she'd left.
The known tactics of those later-convicted felons should have raised questions: The evidence shows that Robinson removed cash from Mulligan’s closet immediately after the murder -- money never reported to the department (drug money, Ellis’s attorney alleges). Acerra discovered Mulligan’s personal cell phone, initially reported as stolen from his SUV, a full week after the murder in a “secret compartment” in the vehicle’s console. By then there was no record of calls on the phone, and no fingerprints at all, not even Mulligan’s. Yet a woman who'd dated Mulligan testified at the Ellis retrial motion hearings in 2014 that two detectives visited her after the murder, saying she was the last person called from that phone. “So someone had those numbers,” attorney Scapicchio pointed out.
Acerra and Robinson never should have been on the task force to begin with, Judge Ball concluded. Allegations within the department of their armed robberies, at least one of which involved Mulligan, constituted “significant corruption” for which then-Police Commissioner William Bratton and his successor, Paul Evans, “should have been apprised.” But the higher ups turned a blind eye to the detectives’ misconduct.
Only Assistant District Attorney (now retired Judge) Phyllis Broker, the chief prosecutor in the case, cried foul – for which she won Judge Ball’s praise. Following Acerra’s “discovery” of Mulligan’s cell phone, Broker pulled him off the task force. And after the unorthodox photo-viewing procedure involving witness Rosa Sanchez, who Acerra’s live-in girlfriend's niece, Broker required him and Robinson to give taped statements explaining the circumstances.
But Phyllis Broker was muzzled. The Detectives Union objected to her suspicions of Acerra and Robinson and demanded her removal, and the Boston Globe reported that at "a hastily-called meeting with Police Commissioner William J. Bratton... it was agreed that Broker would continue with the case -- but that there would be no further questioning of the detectives..."  Broker capitulated -- and kept her job.
"No further questioning of the detectives...direct, reliable, corroborated evidence."
It sounds to me like a continuing thin blue line.
Please, Mr. Conley, no thin blue line in 2015. Not with the public's diminished confidence in law enforcement agencies. Judge Ball expressly noted the difference in today's Boston's law enforcement culture from that which permeated the Mulligan case: "Twenty years after these events, this judge is acutely aware of the strides made by the Boston Police Department in the professional handling of the investigation and prosecution of their cases."
So why order a fourth trial for Sean Ellis and fall on your sword for the lapses and corrupt conduct of a previous regime?
 "Mulligan probe creates tensions Police, DA's office disagreed on search," Sean P. Murphy, Boston Globe, Nov. 1, 1993.
Elaine A. Murphy is a Senior Justice Fellow at Brandeis University's Schuster Institute for Investigative Journalism and the creator of this website. An occasional contributor to the Dorchester Reporter, she is completing a memoir about her work on the Sean Ellis case.
Adjusting to freedom: Thanksgiving 2015
(Article reprinted from 11/26/15 Dorchester Reporter, page one, "Thankful for his freedom, Sean Ellis adjusts to life outside of prison.")
By Elaine A. Murphy
Sean Ellis has a huge reason to be thankful this week: On Thursday, he will celebrate his first Thanksgiving as a free man in 22 years.
The 41-year-old Dorchester native was released from prison in June after serving more than half his life for the 1993 murder and robbery of Boston Police detective John Mulligan, a crime that for more than two decades he has insisted he did not commit.
Ellis's convictions were overturned in May by Suffolk Superior Court Judge Carol Ball, who ruled that prosecutors had withheld exculpatory information from his defense attorneys. The judge also found plausible evidence that three homicide investigators, who allegedly were involved with the victim in robbing drug dealers,skewed the investigation and prosecution.
The state has appealed Judge Ball’s ruling, but Ellis was released on bail in June. In the five months since, he has confronted the questions that face most all those who leave prison and begin to live on their own again -- a figure the U.S. Justice Department puts at 10,000 per week: Where to live? Where to work? And, as Ellis says, "How to be?”
The first challenge was finding affordable housing. Like many former inmates, Ellis was barred from living with his immediate family, since his mother, with whom he is close, is disabled and lives in subsidized housing. "If you're an able-bodied male or have been in prison, you're not eligible to live in subsidized housing," explains Lyn Levy, founder of Span Inc., the agency that's providing Ellis with transition counseling.
Ellis, though, is one of the lucky ones. A generous family from his mother's church has given him a room "for as long as I need," he says with gratitude. So he hasn't had doors slammed in his face by landlords who've gained access to his Criminal Offender Record Information (CORI), nor has he had to engage in what Levy calls "the shelter dance," that is, assessing accommodations she describes as either “horrid, at the edge of acceptability, or almost OK." Shelters are not viable solutions, long-term.
The next challenge for ex-cons is finding work, hampered as they are by CORI. Massachusetts offers some opportunity in this regard. It is one of 19 "ban the box" states that have removed the conviction-history question from initial employment applications. Still, the information can be accessed as the hiring process proceeds. By October, through his mosque network, Ellis had found demolition work, his first-ever steady job. Making this possible was the support of another family that paid for driver-education classes for him and gave him a car so he could get to work.
Earning his driver's license was "huge," Ellis recalls. His younger sister, Shar’Day, went with him and evidently alerted people to his story. And when he returned to the DMV after passing his road test, "Everyone in the room stood up and applauded."
The joys of being free
Freedom, after years of legal setbacks (his first retrial motion was denied, as was his direct appeal and subsequent federal petition), has brought Ellis the obvious joys, chief among them relaxed time with his sprawling family, especially Shar’Day, who was 3 when he went in and is now a 25-year-old licensed social worker. Other highlights of his release time have been seeing the Zakim Bridge for the first time … soaking in New England's natural beauty after living in concrete for two decades … walking the beach ... perching on an ocean jetty with a friend to watch the waves ... gazing alone at a pond in a local park. He has enthusiastically embraced modern technology, thanks to Shar'Day and others, who presented him with a smartphone and tablet, lifelines to a dazzling new world.
Until 2015, Sean had never written a check nor paid a bill, never even owned a wallet. Incarcerated at age 19, he traded life in one war zone – a neighborhood pockmarked by violence and crack cocaine use in the early 90s – for life in the war zone of a maximum-security prison. Those conditions and associated behaviors must now be shed and new ways found to adapt.
The biggest test
Asked about the biggest adjustment challenge he's had to face so far, there's no hesitation in Ellis’s reply: "Relationships. All kinds. Family, friends, women." Make no mistake, 22 years "inside" changes a man. He explains:
"While in, you develop a way of being to protect and sustain yourself. And the way I learned to be worked for me – meaning my outlook, my disposition, my mannerisms. And now I have to let go of those things, because they have nothing to do with how you need to behave on the outside. You meet a different caliber of people outside, and you have to learn how to adapt.
"For instance, eye contact. Inside, you never break eye contact with someone you perceive as a threat. And you're always assessing potential threats. You have to establish, man-to-man, 'I'm equal to you, equal to the challenge.' You must establish your persona – who you are. It's unwritten – just establish power. And now, outside, you have to learn entirely different rules, and also figure out what things to hold on to."
Insecurity grips him still. Right after his release, Ellis had difficulty sleeping, unable to shake lingering fears: "While in, your guard is up 24/7. You have to protect yourself, even while sleeping at night." It has taken him time to drop this stance, to deep down believe that he's secure. Achieving emotional and physical safety is what Span's Lyn Levy calls this challenge.
At first, Ellis mostly stayed in his room – "I enjoyed being alone, not talking with anyone, taking it slowly, and only gradually making my entry into the world," is how he puts it. One early question he posed to his host family was, "How long do people stay in the shower?"
"As long as you want," was the amused reply. But the question was born of hard reality.
"In prison, showers are where you're most vulnerable," he says. "So you're in and you're out – quickly." After years of that, luxuriating in warm water is now one of life's pleasures.
Fears, and making choices
Asked how long it took him to relax and feel comfortable with his freedom, Ellis ponders for a while, then settles on a milestone: "It started at the birthday party my family threw for me in July. I was playing a laser-light game with one of my sisters, and we were laughing a lot, and I realized that I could be silly."
Being “silly” costs nothing, but it is clearly beyond reach in prison.
One fear that has proven hard for Ellis to shake is feeling threatened when strangers stand too close. In prison, everyone lines up; no one gets too close to the next guy, or it's a threat. So how to adapt to a crowded subway car, where you're jostled as a matter of course? Such experiences can be upsetting to ex-inmates.
Ellis encountered the proximity issue on his second day out. While shopping in a drugstore, he noticed two guys watching him intently. One looked him up and down for several long moments and then strode over and entered his personal space. His heart began pounding, and his first thought was, “Defend yourself!" Then the man lunged and gave him a big hug, saying, "Oh, man?" Turns out he recognized Ellis from the TV coverage and wanted to express his happiness and congratulations at his release.
Ellis left the store shaking his head, smiling. A totally new experience. A welcoming world.
Another major challenge is making choices. "These guys haven't made a decision on their own for all the time they've been in," Sean's attorney, Rosemary Scapicchio, says about the incarcerated men she has represented. "Someone else has opened every door for them. They've not turned a doorknob on their own, or decided when to wake up, when to eat a meal, when to go to bed, or turn out the lights. Not for one day. So when they're released, they truly don't know how to put one foot in front of the other on their own. They may be big, strong guys, but they're terrified of independence."
Indeed, the dizzying array of everyday choices outside can be daunting. Sitting in a restaurant soon after his release, Ellis's angst is visible as he scans an oversized menu describing a bewildering array of options: paninis, tapas, crostini. What does this lingo mean? Sensing his paralysis, a companion recommends an item; relieved, he orders it.
Now that he's up and running with a job, Ellis intends to begin community college in January, and Span has helped him apply for financial aid. His ultimate career goal is working with youth deemed "at-risk" (he prefers the term "misguided") about life choices. His knowledge and credibility on that topic are hard won, and he has much to offer to kids who need counsel.
Here again, Ellis is one of the lucky ones. Unlike most inmates, who come out of prison undereducated and undertrained, he earned a paralegal certificate while at Norfolk, thanks to family support. He also explored his own "emotional literacy" through the prison's Jericho Circle program and gained valuable counseling skills through Second Thoughts, a program that first trained him, then set him to working with young offenders.
In mid-October he spoke about his case to Brandeis students in an Investigating Justice class and afterwards he called the experience therapeutic: "In prison, you must disconnect from certain parts of yourself, and experiences like this give you the chance to reconnect those parts again."
Asked what parts get disconnected, he says, "The parts that make you human. Your emotions, your compassion, your instinct to help a guy in need. Inside, to cope, you have to disconnect yourself from those things. For example, you can't help someone who gets jumped, or else you, yourself, will get in trouble."
He learned that lesson the hard way, having once spent several weeks in solitary ("the hole") for coming to a man's aid along with two others, who were similarly punished. And he recalls a time he bought cookies from his own canteen for a fellow inmate: "After that the guy started demanding cookies again and again. And I realized my kindness was being misinterpreted as weakness." He had to steel himself and refuse.
Free, but not cleared
Ellis is not yet free and clear. He's awaiting a final ruling from the Massachusetts Supreme Judicial Court on the Commonwealth's appeal of the case. If prosecutors prevail, he'll go back to prison. If not, they've pledged to try him again. It would be his fourth trial for the same crime; his first two trials ended in mistrials, with hung juries. All this looms over him like a dark cloud.
Moreover, he's aware that not everyone feels as positively about him as his supporters, that many still think he's guilty. "We give wide latitude to the victim's family," attorney Scapicchio notes, for certain members have been emotional and negative on the Internet. "After all, they lost someone, and they're doing whatever they have to, depending on where they are in the grieving process."
Ellis is not letting uncertainty or doubts hold him back. At Brandeis, a student asked him if he "holds a grudge" against the three corrupt cops he believes framed him. His response visibly impressed his audience: "I don't have a grudge, because my personal disposition is that it's too heavy to carry. I just want to put my life back together, and I can't do that bearing a grudge."
Powerful words from a time traveler from 1993 who, on Thanksgiving 2015, is grateful to be free, reunited with his family, and on track towards reaching the ultimate human freedom: the ability to give something back.