2016: SJC Hearing and Ruling
Massachusetts Supreme Judicial Court (SJC) hearing
The Commonwealth of Massachusetts appealed Judge Ball's 2015 decision to overturn Sean Ellis’s 1995 murder and robbery convictions, and arguments were heard by the Massachusetts Supreme Judicial Court before an overflow gallery on Thursday, May 5, 2016.
Representing the Commonwealth: Suffolk County Assistant District Attorney (ADA) Paul Linn.
Representing Sean Ellis: Attorney Rosemary Curran Scapicchio.
The main issues questioned by the justices:
A miscarriage of justice?
Justice Geraldine Hines framed the debate by pointing out that Judge Ball stated in her ruling that after considering all the surrounding circumstances, she considered Ellis's arrest and conviction a "rush to judgment” and that concerns about fairness motivated her decision to grant him a new trial.
Justice Hines asked ADA Paul Linn that if Judge Ball found "a substantial miscarriage of justice," "shouldn't we have the same concern?"
Linn's responded that Judge Ball's ruling was "riddled with error" and that there’s no justification for a new trial.
He maintained that the Commonwealth turned over all tips to police to Ellis's defense attorneys, as required. He said even if all of Judge Ball findings were accurate about the withheld tips and about Mulligan's criminal involvement with corrupt fellow detectives Kenneth Acerra, Walter Robinson, and John Brazil, there is still no justification for a retrial because "all evidence leads to Ellis and Patterson.
The gun evidence
ADA Linn pointed to the gun evidence: Ellis was convicted in his first trial of possessing Mulligan's stolen revolver and the presumed murder weapon, a .25 caliber pearl-handled gun. Police found both weapons hidden under leaves in a vacant lot in Dorchester on October 7, eleven days after the murder. "Once you have Ellis in possession of the guns, you have overwhelming evidence that the murder was committed by either Ellis or Patterson or both of them in combination ... It all comes back to that,” Linn said.
At Ellis' trials, his friend, Letia Walker, testifying under a grant of immunity, said Ellis procured the weapons from his cousin's apartment on September 30 and brought them to her bedroom to hide. Walker testified to the investigating grand jury (but not at the trials) that a mutual friend (murdered in Dorchester before the trials) removed the guns and hid them in the empty lot under leaves. Linn said Walker's fingerprint was found on one gun's clip.
Attorney Scapicchio disputed Walker's account. She said the cousin’s apartment where the guns were purportedly first hidden was the scene of a double homicide the previous day. (On September 29, Ellis's cousin Tracy Brown and her sister, Celine Kirk, were murdered there by an ex-boyfriend of Celine’s, who confessed and was convicted.)
Lengthy follow-up questioning by the justices showed their skepticism that Ellis could have entered a crime scene that was cordoned off by police tape and found two guns – after the apartment had been thoroughly scoured by homicide detectives.
Scapicchio said that in a retrial she would investigate "what the police officers did to get [Walker] to tell the story that she told." She would also retest the gun clip, for she does not believe Walker's print was on it.
Referring to questions that detectives posed to two witnesses on October 2 and 3 about a “pearl-handled .25 caliber gun” that Mulligan may have owned -- five days before a gun of this exact description turned up in a Dorchester field and was declared the murder weapon — Scapicchio said, "There is no explanation for questions about a pearl-handled gun before it was found. How did people involved in this investigation know it had a pearl handle?"
She drove home her point: "The guns were absolutely planted."
The tip concerning the guns' whereabouts was brought in by the corrupt Det. John Brazil.
New information on Mulligan's crimes committed with investigators
Justice Fernande Duffly asked ADA Linn how the court should deal with a Mulligan homicide investigation in which "the police department knew there were corrupt detectives, and the victim was a part of it, with the detectives having "their own, compelling incentive" that the investigation would not "turn in their direction?"
Chief Justice Ralph Gants called this "a unique Bowden defense" and called the newly found information about Mulligan's involvement in his fellow officers' crimes "a major game changer":
“They wanted to make sure that the investigation did not lead to anything that may inculpate them, and I would think that if this was known at trial, the argument would be reasonable doubt.”
Pointing out that neither Ellis nor Patterson had a motive to kill Mulligan (brushing aside the Commonwealth’s theory that they wanted Mulligan’s gun for a trophy), Gants observed that the withheld tips named many people with such motives. They included specific drug dealers the detective allegedly ripped off, which led him to connect the unexplored tips with Acerra, Robinson, and Brazil’s ongoing robbery scheme:
“The fact of the matter is that if one had examined all of the persons who had a motive to kill Detective Mulligan, it would have led to revelations of the corrupt scheme.”
ADA Linn responded that, despite Acerra, Robinson, and Brazil's possible motivation to lie, "there is still no evidence that any of the corrupt detectives procured false evidence in this case.”
Corrupt evidence?
Attorney Scapicchio countered by questioning the discovery by Detective Kenneth Acerra of Mulligan's missing cell phone in the slain detective's SUV five days after the murder. Acerra claimed he was searching for a phone charger when he came upon the cell phone in the center compartment of Det. Mulligan's vehicle. The phone had not been found by technicians who inventoried the contents of Mulligan's SUV after the murder, and it was declared stolen.
ADA Linn said Acerra's purported phone discovery was known at the time of Ellis's trial. Yet Judge Ball did not find credible the two different police explanations of the incident:
--Sgt. Robert Foilb (retired), who made the initial inventory of the vehicle, testified that he missed the phone because it was in a "secret compartment." Yet crime scene photos showed the compartment was s small tray that only half-covered the center compartment's contents.
--Second, the Boston Police report of Acerra's discovery stated that the phone was in the vehicle all along, but officers didn't think anyone was looking for it and thus didn't report it.
Scapicchio also cited the testimony of witness Michelle “Misti” Hagar, an occasional sex partner of Mulligan's who was visited by two detectives shortly after the murder. The men told Hagar she was the last person called from Mulligan's phone. "So, someone had those numbers," Scapicchio pointed out.
No police report was ever filed of Hagar's interview
Acerra, Robinson, and Brazil's roles in the investigation
Justice Hines asked attorney Scapicchio about Acerra, Robinson, and Brazil's roles in the 50-man task force in which “they were not calling the shots.“ The attorney countered that the corrupt trio was in fact involved "from beginning to end" in gathering the evidence used against Ellis:
Dets. Acerra and Robinson were the first police officers to enter Mulligan's condominium after the murder, and two witness reported that Robinson removed money from Mulligan's coat closet — money he never turned in to the department.
Dets. Acerra and Robinson and Brazil brought forward eyewitness Rosa Sanchez (a teen with family ties to Acerra) on the day of the murder, the only witness to tie Ellis to the victim.
Dets. Acerra and Robinson were present at Sanchez's first photo ID session, when she selected a person who was neither Ellis nor Patterson. Moments later they brought Sanchez in for a second viewing of the photos – and she changed her mind and selected Ellis. In between her two viewings, Sanchez sat in Acerra’s car with him and Robinson outside the building.
Acerra subsequently got Rosa Sanchez and her husband relocated from Humboldt Avenue, Roxbury, to a suburban garden apartment in Norwood at the Commonwealth's expense.
Det. John Brazil took Ellis's voluntary statement.
Det. Walter Robinson arrested Ellis.
Court documents filed by Scapicchio also state that:
Det. Kenneth Acerra, with his E-5 supervisor, Sgt. Det. Lenny Marquardt (an unindicted co-conspirator in Acerra's ongoing robbery scheme), transported a teenage friend of Ellis to the homicide unit, where the youth confessed to hiding the guns in the vacant lot on Ellis's behalf.
Det. John Brazil, saying he was tipped, directed police cadets to the Dorchester lot where they recovered the two weapons.
Det. Acerra arrested Terry Patterson.
Why Frame Ellis?
Justice Francis Spina asked attorney Scapicchio, "Why [did police] pick on Ellis ... why hang the whole thing on Ellis -- plant guns, doctor the ballistics evidence?"
Scapicchio said Ellis became a scapegoat when, during a six-hour police interview about his cousins' murders on September 29, he told detectives he'd been at Walgreens in the wee hours of September 26 with one of the cousins, buying diapers. He told police where to find the diapers and their receipt. “He puts himself right in the middle of a homicide of a detective. Who would do that if they actually committed a crime? … Now they have someone who they can hold out to the public who actually admits he was there.”
Corrupt Detective John Brazil led Ellis’s questioning session. Scapicchio alleges he was "desperate" to make a quick arrest in order to halt the investigation into Det. Mulligan’s police work.
In concluding their presentations, ADA Linn said, "Despite all that the defense raises," the evidence "keeps coming back to Ellis and Patterson." Attorney Scapicchio implored the justices, "I would encourage you to look at entire record here ... There's no way Ellis got a fair trial."
The justices have 120 days to reach a decision on whether to overturn Judge Ball's 2015 ruling giving Sean Ellis a retrial or let it stand. Suffolk County prosecutors have said that, should they lose their appeal, they will try Ellis again.
It would be his fourth trial for the same crime.
“It’s a matter of justice and fairness.”
Unanimous ruling
On September 9, 2016, the Massachusetts Supreme Judicial Court (SJC) unanimously upheld Suffolk Superior Court Judge Carol Ball's May 2015 ruling to reverse Sean Ellis's 1995 murder and robbery convictions and grant him a retrial. The court largely based its decision on newly discovered evidence that victim John Mulligan was engaged in criminal conduct (a scheme of drug-dealer robberies based on falsified search warrants) with three investigators of his homicide: Dets. Kenneth Acerra, Walter Robinson, and John Brazil. This gave them a conflict of interest.
“Robinson, Acerra, and Brazil were involved in nearly every aspect of the homicide investigation that resulted in the defendant’s prosecution.”
The justices agreed with Judge Ball that this newly discovered evidence ‘would have been a real factor in the jury's deliberations,' and that a new trial was required for justice to be done.
Gants explained that in 2000, when the SJC denied Sean’s first retrial motion, “We did not know at that time that [Dets. Acerra, Robinson, and Brazil] had been engaged with the victim in criminal acts of police misconduct as recently as seventeen days before the victim's murder … ...The complicity of the victim in the detectives' malfeasance fundamentally changes the significance of the detectives' corruption with respect to their investigation of the victim's murder “
“These detectives would likely fear
that a prolonged and comprehensive investigation
of the victim’s murder would uncover leads
that might reveal their own criminal corruption.”
“They, therefore, had a powerful incentive to prevent a prolonged or comprehensive investigation, and to discourage or thwart any investigation of leads that might reveal the victim's corrupt acts.”
— Chief Justice Ralph D. Gants, 2016 Mass. SJC ruling affirming Sean Ellis’s overturned convictions