1995: Three Trials

It took prosecutors three trials to convict Sean Ellis for Det. John Mulligan’s murder. Terry Patterson was swiftly convicted in February 1995, largely due to fingerprints found on Mulligan’s SUV driver’s door that police said were his. But Ellis's first two jury panels (January and March 1995) failed to find conclusive evidence that he acted in concert with Patterson, or on his own, which led to hung juries and mistrials. In September 1995, at Ellis’s third trial – with no additional evidence and minus two key prosecution witnesses who testified earlier – the jury convicted him of first-degree murder and robbery and sent him to prison for life without the possibility of parole.

Sean's story to police

Sean has insisted from the start he had nothing to do with John Mulligan's murder, that he merely shopped for diapers iat the Roslindale Walgreens the morning of the crime – in full view of witnesses and security cameras in the store with signs stating, “Videotaping in Progress.”

Three days after the murder, on September 29, two cousins of Sean’s – sisters Celine Kirk and Tracy Brown – were brutally murdered in Tracy’s Hyde Park apartment by an ex-boyfriend of Kirk’s. (Eighteen-year-old Craig Hood pleaded guilty of the double homicide and received two consecutive sentences of fifteen years apiece. He is still in prison.)

Since Sean had just moved into Tracy Brown’s apartment, police picked him up for questioning the following day, October 1. He waived his Miranda rights and, without a lawyer present, spoke voluntarily to homicide detectives. The session turned into an eight-hour grilling. At the three- hour mark, Det. John Brazil (later revealed as a participant in an ongoing drug robbery scheme with Dets. Acerra, Robinson, and victim John Mulligan) turned the questions to Mulligan’s murder at Walgreens.

Sean told the detectives he’d stopped at the Roslindale Walgreens that morning to buy diapers with his cousin Celine and Terry Patterson. He told them where to find the diapers — on the bedroom windowsill in Tracy Brown’s apartment. He denied any involvement in Mulligan’s murder. He repeated his denials for the next three hours, until police released him.

Police then found the diapers Sean purchased in Brown’s apartment – and with them their Walgreens receipt indicating a purchase time of 3:01 a.m. on Sept. 26, 1993.

Police ruled out any connection of Celine Kirk’s murder with Detective Mulligan. They stated this vigorously and repeatedly in press conferences held during the Mulligan investigation.

Sean's defense team

Well-known Boston defense attorney Norman Zalkind (top) and his partner, David Duncan, took on Sean's case for nominal reimbursement by the state's Committee for Public Council Service. (Ellis was indigent.)

With no eyewitnesses and no physical evidence connecting Sean to the crime scene (despite extensive hair and fiber analyses done on Mulligan's vehicle), the attorneys did not put on a case in any of his three trials.

Prosecutors' case theory

Prosecutors said Sean and Terry Patterson hatched a plan to steal Detective Mulligan's gun after they saw him sleeping in his SUV parked outside Walgreens. They pronounced it a random crime of opportunity. According to Chief Prosecutor Phyllis Broker, "Mulligan died because he wore a badge, and his gun was stolen because his alleged killers wanted a 'trophy' from their victim ... Sean Ellis kept the trophy."

Brokers case theory was that after Sean shopped for diapers, he and Patterson drove around the corner to an adjacent residential street and parked. Leaving Celine Kirk in the car, they walked back through the woods to kill Mulligan. She called witnesses to support this theory:

Three key points of prosecutor’s evidence – and reasonable doubt

1. A Walgreens neighbor saw Patterson's car.

Testimony of Victor Brown:

Victor Brown, a cable installer who lived on a quiet street adjacent to Walgreens, saw the report of Mulligan's murder on Sunday-morning TV and immediately called police to say he'd been awakened at 3:30 that morning (according to his digital clock) by a noisy brown VW Rabbit backing into his dead-end street and parking. (Brown later changed his time to 3:20 after police phoned him to ask whether he’d “set his clock ahead.”)

From his window he saw two young African-American men standing on the sidewalk -- one tall and slim (as was Sean Ellis), the other "a bit shorter and stockier" (as was Terry Patterson). After speaking for a moment or two, the men entered a wooded thicket. Brown heard laughing, which reassured him.  Then they emerged and set off on a path in the direction of the mall, about a four-minute walk.

Thinking the parked VW Rabbit might be stolen, Brown went outside to check it. He encountered a young woman sitting in the back seat. He went back inside, and fifteen minutes later heard car doors slam -- at least two doors, he said, and possibly more. Brown did not actually see the men return. After hearing the car doors shut, he rushed to his bedroom window in time to see the car roar off with its lights off.

Based on Brown's description of the car, police developed a flyer and circulated it widely. A different Walgreens neighbor recognized the vehicle and phoned the police. By then an anonymous tip had led police to a maroon (not brown) VW Rabbit stashed in a Dorchester driveway. Police brought over both Victor Brown and the other Walgreens neighbor, and they both identified the vehicle. (The maroon car had looked brownish under the pink security spotlight across from Brown’s house, hence his confusion over the color.

)Police traced it to Terry Patterson’s brother, who said Terry was the primary driver.

REASONABLE DOUBT:

Shown police photos that included Ellis and Patterson, Brown could not positively identify the men he saw that morning – even though he’d testified that the lighting in the area was so good, he could see out his bedroom window “so well that... if there was a coin on the sidewalk, I’d be able to tell you whether it was a nickel or a quarter.”

Was Sean Ellis the companion in Terry Patterson's car when Patterson moved it to Brown's street, or was it someone else? 

Reasons to doubt it was Ellis:

• Different attire: The taller, thinner man Brown saw wore "a windbreaker with a white hood over the collar, down." But Walgreens parking lot witnesses described different attire on the tall, thin man man whom prosecutors said was Sean: Rosa Sanchez said he wore a greenish-blue hoodie sweatshirt; Ivan Sanchez said he wore a black hoodie sweatshirt.

• Did someone else drive with Terry Patterson to Brown's street? In a police interview, Sean's uncle, David Murray, said Sean told him that when he came out of the drugstore after buying diapers, Patterson's car was gone from its spot in the fire lane. This made Sean surprised and confused.

• Did more than two men run back to Patterson's car? Victor Brown admitted he didn't actually see the men return. He only heard car doors slamming. As for the number of doors he heard , he testified, “More than one door. At least two. It could have been three.” If three doors closed, then someone else ran back to the waiting car with Patterson and Ellis.

• Defense attorney Norman Zalkind posed this question to jurors: “Is it really two men? Is that the magic number, two men?” He asked them to consider, “Was there somebody that was actually at Walgreen’s already and that came back with Terry Patterson and somebody else?...Someone who fit Brown’s description of a ‘dark jacket with a white top, a collar, no hat...’?”

2. Shoppers at Walgreens saw men fitting Ellis and Patterson's descriptions outside.

Testimony of Rosa Sanchez

Rosa Sanchez, age 19, testified that just after 3:00 a.m. she saw an African-American youth outside the Roslindale Walgreens peering into Detective Mulligan's car windows as he slept in the driver's seat.  (Note: Police put the time of Det. Mulligan's murder at approximately 3:45 a.m.)

Sanchez identified Sean Ellis from police photos, but only on her second viewing. In her first pass through the photos, she identified a different man. After that, Dets. Acerra and Robinson (who’d driven her to the homicide unit) escorted her outside. She then sat with both men in Acerra’s parked car. By all accounts she was weeping. Five minutes later, the two detectives brought her back into the homicide unit, saying she’d changed her mind . Given an unorthodox second viewing of the unchanged photo arrays, Rosa Sanchez immediately pointed to Ellis’s photo in the top left corner of the array. 

Rosa Sanchez was the only witness to link Sean directly to the murdered detective. At trial, attorney Zalkind emphasized that Sanchez had family ties to task force investigator Det. Kenneth Acerra (later a convicted felon). Rosa Sanchez’s maternal aunt, Lucy Delvalle, was Acerra’s live in girlfriend, and they had a child together. The attorney charged that Acerra coached the teen to make the photo ID. Calling Sanchez "possibly troubled, " Zalkind said, "She's putty.  She will say anything."

Detective Kenneth Acerra did not disclose his personal relationship with Rosa Sanchez to the police department until two months after bringing her forward as a witness.

REASONABLE DOUBT

• Was Sanchez even at Walgreens? The teenager said she stopped to pick up a bar of soap, and the Walgreens cash tape showed such a purchase at 3:20 a.m. Asked by defense lawyers why it took her nearly 20 minutes to complete that simple transaction (she'd walked into the store just after 3:00 a.m.), Rosa said she browsed the card aisle for a while.

  But a witness named Deborah Cox, who was not called by prosecutors to testify, told police she shopped in Walgreens for cards between 2:55 and about 3:15 a.m. that Sunday morning and never saw Rosa Sanchez -- or anyone else -- in the card aisle. Cox sat on the floor in the aisle, reading cards. She selected eight, which she charged to her credit card at 3:14 a.m., moments before Rosa Sanchez bought her bar of soap.

  If Rosa Sanchez were telling the truth,. she and Deborah Cox would have crossed paths in the card aisle. Jurors never heard Cox’s account.

• How did police learn Rosa was at Walgreens? The stories conflict about how Rosa Sanchez came forward to police after the murder. What’s certain is that Boston Dets. Kenneth Acerra and John Brazil (who later admitted guilt in a decade-long scheme of drug-dealer robberies and perjury) and their station supervisor, Lenny Marquardt, drove to Rosa Sanchez's Humboldt Avenue, Roxbury, apartment the afternoon after Mulligan's murder to question her. Asked how the officers learned she was at Walgreens near the time of the murder, Rosa gave differing accounts.

  First she said she didn't know who in her family called police; then she attributed the phone call to her mother-in-law, Heidi Soto. Rosa was definite about one thing: SHE did not make the initial phone call to police. But Boston officer Elvis Garcia, Sanchez's brother-in-law, received that initial phone call, testified that Rosa herself called him at 4:00 p.m. that Sunday, saying she'd "seen something at Walgreens."

• Rosa's call to police was not documented at the time. Why? Officer Garcia did not write a report of Rosa Sanchez's vital 4:00 p.m. phone tip until a full year later -- and then only did so at the request of his supervisor. Why was no police report made of Rosa Sanchez’s phone tip in one of the most intense, heavily watched homicide investigation in Boston's history? 

  Background: Boston police were under pressure to run an impeccable investigation to counteract the department's dismal, indeed, criminal performance in the 1989 Carole DiMaiti Stuart murder case, in which homicide detectives had railroaded an innocent African-American man. Memories of Boston Police misconduct haunted the Mulligan probe.

• The time of Rosa's phone tip to police conflicts with the time of her husband's police interview: Officer Garcia clocked in Rosa's phone call at 4:00 p.m. on Sept. 26. But 4:00 p.m. was the "start time" Boston police indicated for Ivan Sanchez's taped interview at the Area E-5 station in West Roxbury. Det. Kenneth Acerra drove the couple to E-5 in his private car after conducting their initial interviews in Roxbury.

  
  Testimony of Ivan Sanchez

As Rosa Sanchez walked into the store, her husband, Ivan, decided to move his car from its initial parking spot to just outside Walgreens' glass doors. As he swung the car around, he saw two men emerge from the woods -- one tall and thin, the other shorter and stockier. The men walked to the pay phones to the left of the Walgreens doors. They stood there "the whole time" (14 minutes or so) that Ivan sat waiting for Rosa to complete her errand.

Prosecutors said these men were the same individuals whom Walgreens' neighbor Victor Brown saw entering the woods from his side street at exactly 3:20 a.m. (at first Brown said 3:30). The Commonwealth maintained the men were Ellis and Patterson, walking back to kill Detective Mulligan.

REASONABLE DOUBT

Were the two men Ivan Sanchez saw come out of the woods at Walgreens the same two men Victor Brown saw going into the woods from his side street, as prosecutors said?

• The timing is off: Ivan Sanchez and Victor Brown’s sightings do not match up by nearly half an hour:

  • Ivan’s men emerged from the woods and walked into the parking lot just after 3:00 a.m.

  • Victor Brown saw two men set off on a grassy footpath at around 3:25 a.m. in the direction of Walgreens. Brown's house was a four-minute walk from the mall, putting the men on course to arrive at Walgreens by 3:30 -- nearly half an hour after Ivan Sanchez saw his two men walk out of the woods.

• Shown police photos, neither Victor Brown nor Ivan Sanchez identified either Ellis or Patterson as the men they saw.

• NOTE: Ivan's wife, Rosa, reported to police that Ivan told her the tall, thin man (the man she said was Sean, now at the telephones) was not one of the two men who walked out of the woods.

  Jurors never heard this observation, for Chief Prosecutor Broker succeeded in having Ivan’s account excluded as “hearsay.” This exculpatory disclosure of Ivan’s is documented in the police transcript of Rosa Sanchez's September 26, 1993, interview at the Area E-5 station. Based on Rosa’s account, detectives concluded that three African-American men stood at the Walgreens telephones, and one subsequently went “missing.” The detectives and Rosa all agreed on this scenario.

• Ivan Sanchez had a criminal case pending (running a red light and assaulting a police officer). It was settled favorably over the course of Sean's trials.
  

TESTIMONY OF EVONY CHUNG AND JOSEPH SAUNDERS

Joseph Saunders and Evony Chung drove to the Roslindale Walgreens to pick up a few items after seeing a movie in nearby Dedham -- "The Bodyguard" they each testified.  Evony shopped while Joseph waited in his car. As she walked towards the store, two young African-American men passed her, one on either side.  Feeling alarmed, Evony tucked her gold chain into her blouse, but nothing came of her fears.

As Joseph Saunders waited, he saw in his rear-view mirror an African-American man whom he described as "about 5'10" tall...wearing a white shirt." The man was walking through the parking lot towards the phone. (Note: Sean Ellis is 6' 1".) Upon reaching the phones, the man was joined by another African-American man.

Saunders testified that he saw other young African American men in the parking lot that night.

In Walgreens, Evony bought diapers, Vicks Vapo-Rub, and cough syrup. She checked out at 3:18 – two minutes ahead of Rosa Sanchez. She and Saunders then drove off, observing Detective Mulligan asleep in the driver's seat of his SUV.

REASONABLE DOUBT

• Shown police photos, neither Saunders nor Chung could make a positive identification of Ellis or Patterson. 

• Saunders had a pending larceny case that was settled favorably during Ellis's trials.

• Over the course of Sean's three trials, Chung changed her testimony to more closely mesh her arrival time at the mall with witness Rosa Sanchez's time there. Sean’s trial lawyers maintain that prosecutors knew Sanchez was a shaky witness and needed to buttress her account.

• Between Ellis's second and third trial, Chung was arrested and charged with "possession of drugs with intent to sell." Police confiscated $3580 from her underwear.  After Sean's conviction, his defense attorneys learned that Chung's drug charges were dropped and her $3580 was returned to her.

• The manager of the Dedham Showcase Cinema, where the couple said they saw “The Bodyguard,” told police this movie was not playing that night. The manager was not called to testify. (Note: The Bodyguard was released in 1992 and was not playing in Dedham on any other night in 1993.)

3. The guns: Sean allegedly took custody of the murder weapon and Det. Mulligan's service revolver. Both were found buried under leaves in a Dorchester vacant lot near his house.

Testimony of Latia "Tia" Walker 

Sean's girlfriend at the time, Tia Walker, testified for the prosecution in exchange for immunity from prosecution. (Police said her fingerprint turned up on the clip of one weapon, and she faced accessory charges). Walker claimed that four days after Mulligan's murder, on October 1, Sean removed two guns from his cousin Tracy Brown's apartment and brought them to her bedroom and placed them under her nightstand. (Tia lived in Dorchester. She told the investigating grand jury that later that day, their mutual friend, Curt Headen, removed the guns and hid them under leaves in a nearby vacant lot.)

The guns were recovered from the vacant lot by police on October 6th. Shown the weapons at trial, Walker said they were the guns that Sean hid in her room.

REASONABLE DOUBT

Was Tia Walker's account tying Sean to the guns genuine?

1. As Attorney Scapicchio notes, Walker was a young mother at the time, and thus "vulnerable to police pressure and coercion because...a common police tactic was to threaten to get [the Department of Social Services] to take a child if a witness did not say what the police wanted the witness to say."

   There is no doubt that police pressured Walker after Mulligan's murder. She had told friends, and states on camera in the Netflix documentary “Trial 4” that detectives hounded her, coming repeatedly to her door. 

   Note: Boston Police had a documented history of threatening witnesses or giving incentives to procure accounts to get a conviction:

   —In the notorious 1989 DiMaiti/Stuart murder case, homicide detectives strong-armed people to tell false stories, resulting in the arrest of the innocent Willie Bennett.

   —In the wrongful murder conviction of Sean Drumgold for a 1988 Boston murder, detectives rewarded one witness for giving a false story, and "pressured and berated" another witness "to the point of tears" to get an account -- tactics the Boston Globe's editorial board deplored as "blatant bullying and browbeating on the part of Boston Police." When this came to light in 2003, Mr. Drumgold, represented by Ellis's attorney, Rosemary Scapicchio, was exonerated and released.

2. Tracy’s apartment, where Sean purportedly retrieved the guns, was an active crime scene. Twelve hours earlier, Sean’s cousins, Tracy Brown and Celine Kirk, were murdered there by an ex-boyfriend of Celine’s (Craig Hood confessed and is still in prison).

   Surrounded by yellow police tape, the apartment had undoubtedly been scoured by police. How could they overlook two guns?
   
   

   What about Tia’s print on the gun?

   Attorney Scapicchio doubts the veracity of the police evidence and has repeatedly stated *** her intention to have the gun re-tested for prints.

   *** in her 2013 retrial motion for Sean Ellis, at the 2014-15 evidentiary hearings, and in her oral argument at the 2016 SJC hearing of the Commonwealth’s appeal

   Note: Tia’s print on the gun clip was identified by the notorious Sgt. Robert Foilb — the same officer who picked up and analyzed prints from Mulligan’s SUV door and attributed them to Terry Patterson — prints ultimately disallowed as evidence by the Mass. SJC due to their unscientific method of collection and analysis.

   In another case, Sgt. Foilb misidentified the crime-scene print in a 1997 murder, saying it belonged to the innocent Stephan Cowans, resulting in his wrongful conviction and incarceration. (Cowans was released after Foilb’s error became known - having spent ix years behind bars).
   
   

   Were Headen’s and Chisholm’s accounts to police true?

   Curt Headen and Kevin Chisholm never testified in the Mulligan trials and thus were not cross-examined. Both teens were murdered in separate incidents in Dorchester in 1994 – after they cooperated with police and before the Ellis trials.

   Detective John Brazil (who later admitted to perjury on warrants on behalf of Dets. Acerra and Robinson ) told reporters on the day of Headen's killing that his murder stemmed from a gang dispute and had nothing whatever to do with his anticipated testimony in the Mulligan trials: “We’re absolutely satisfied this homicide is totally unrelated to the Mulligan case. We’ve looked at every aspect of this case for a connection. There isn’t any."

   Notable:

   —Both youths were transported to the homicide unit - to give their statements about the guns in the case - by the corrupt Dets. Acerra and Robinson. And it was only after being alone with these detectives that Headen and Chisholm related their gun-hiding stories. And only after that did Tia Walker echo their accounts to the investigating grand jury.

   —Both Headen and Chisholm dealt drugs and had arrest records.. Were they assured of lenient treatment in exchange for their accounts? We will never be able to probe their motivation in court, under oath.
   
   

   Were the weapons planted in the vacant lot?

   Police transcripts show that on October 2 and 3, 1993, detectives separately questioned Mulligan's 27-year-old girlfriend and her roommate. The women lived in the same West Roxbury condo complex as Mulligan. Each woman was asked if she'd ever seen John Mulligan with "a pearl-handled gun."

   A “pearl-handled gun” was the exact description of the .25 caliber revolver that police pulled from the Dorchester vacant lot ... on October 7 … and declared the murder weapon.

   How did police know they were looking for a pearl-handled gun five days before it was found? 
   

   Attorney Scapicchio argues that the fact detectives knew what gun they were looking suggests that corrupt police planted the weapons.
   
   

   Was the pearl-handled gun Mulligan’s?

   Several witnesses told police they knew for a fact Mulligan wore a small-caliber gun in an ankle holster.

   
   

   Testimony of Sean's Uncle David Murray 

Sean's maternal uncle, David Murray, testified for the prosecution. He said Sean was distraught the week after the murder and confided in him, saying that Terry Patterson drove him and his cousin, Celine, to Walgreens to buy diapers. But when Sean walked out the door after his errand, Patterson's VW was now missing from its parking spot in the fire lane outside the drugstore. According to Murray, the car’s absence made Sean confused - but at that moment Terry Patterson ran up to him yelling “Come on, let’s go.”

According to Murray, the two youths then ran to Patterson’s VW, which was now parked “by some bushes.” Murray said Sean told him Patterson passed him two guns to hide.

Murray repeatedly testified that Sean strenuously and repeatedly protested his innocence of Mulligan’s murder.

REASONABLE DOUBT

Two theories have been promulgated to explain Murray’s testimony:

• Sean’s attorney, Rosemary Scapicchio, does not believe David Murray’s account. Murray was on parole at the time, having done time for armed robbery. Scapicchio questions whether Murray was pressured by the corrupt Det. Brazil to state information that would quickly end the investigation and lead to a conviction.

  Indeed, Murray told family members that police leaned on him mercilessly, threatening to return him to prison for parole violations unless he "cooperated." (In the Netflix documentary series, “Trial 4,” Murray says Brazil was “on him” like “a tick on a dog.”)

  Consider the context: Brazil was subsequently found to be an active partner with Detectives Kenneth Acerra and Walter Robinson in a secret scheme of drug-dealer robberies that flourished throughout this period (see Corrupt Investigators) – a scheme in which victim John Mulligan was a participant. Theoretically, it would serve Brazil and his colleagues' interests to pin the crime on a street kid and thus halt further probing that stood to reveal their joint crimes.

• Sean's trial lawyers had a different theory: At trial, attorney Norman Zalkind asked David Murray, "Did you think you might get the reward money, Mr. Murray?" Police were offering a $25,000 reward for information leading to the arrest of Mulligan's killer.

Sean did not know that his Uncle David was reporting all their confidential conversations to Boston Police Dets. John Brazil and William Mahoney.

3rd trial: what was different?

The jurors in trial three did not hear from two significant witnesses who had testified in Ellis's first and second trials:

1. David Murray

In Sean’s third trial, Chief Prosecutor Phyllis Broker chose not to call Sean's Uncle, David Murray, to testify. As reported in the Boston Globe, several jurors in Sean’s first and second trials told reporters they found Murray's description of Sean being distraught and protesting his innocence compelling – essentially undermining the prosecutors’ case.

Of note: In the Netflix documentary, “Trial 4,” first-trial juror Catherine Hunt underlines the exculpatory nature of David Murray’s account of Sean’s denials to him. She rues Murray’s absence as a witness in trial three and concludes that prosecutors learned from their earlier mistakes and adjusted their case to get a conviction – a perspective shared by Sean’s trial attorneys.

Indeed, the third trial transcripts reveal that Judge McDaniel asked Chief Prosecutor Phyllis Broker at the pre-trial conference if she planned to call David Murray. Broker demurred, saying, "If you ask David Murray what he had for breakfast, he'll say, 'Cheerios, and Sean Ellis did not kill the officer!"

2. Ivan Sanchez 

Ivan Sanchez, it was claimed, could not be found this time and thus did not testify. The consequence of Ivan’s absence as a witness? Jurors did not hear Ivan’s different description of the clothing worn by the tall, thin man who was supposedly Sean: Ivan said this man wore a black hoodie; his wife, Rosa Sanchez, said he wore a greenish-blue hoodie.

Nor were third trial jurors able to learn that the time of Ivan’s sighting of two men walking OUT of the woods and into the Walgreens' lot was just after 3 a.m..

This sighting time does not synch with Walgreens’ neighbor Victor Brown’s account of seeing two men ENTER the woods and head towards Walgreens at approximately 3:25.

In other words, the Commonwealth’s timeline and case theory - hinging on the in-and-out times of the two men whom prosecutors said were Patterson and Sean - is upside down.

(Note: these men were never positively identified.)