(Article reprinted from National Public Radio WBUR.org's Cognoscenti blog of May 14, 2015, with permission of the author.)
SEAN ELLIS DESERVES A CHANCE FOR REAL JUSTICE
by Eileen McNamara
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.
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(Adapted from Elaine A. Murphy, "Time for real justice in the case of Sean Ellis," Dorchester Reporter, May 13, 2015.)
NO MORE THIN BLUE LINE
by Elaine A. Murphy
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..." [1] 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?
[1] "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.
Sean Ellis enters the courtroom for his May 12, 2015 bail hearing at which Judge Carol S. Ball granted him $50,000 bail with the requirement to wear a GPS monitoring device. The Commonwealth of Massachusetts announced its intention to appeal Judge Ball's ruling to overturn his convictions.
Attorney Rosemary Scapicchio speaks to the press after Sean Ellis was granted bail.
Sean Ellis's mother, Mary "Jackie" Ellis, expresses elation over Judge Ball's rulings.