April 9, 2015: Final arguments
"Ruling on Ellis's new trial bid seen due by end of May"
An edited version of this report by Elaine A. Murphy appeared in the April 16, 2015, Dorchester Reporter.
Final arguments in Suffolk Superior Court last week wrapped up seven days of hearings to consider whether Dorchester's Sean K. Ellis, convicted in 1995 of Boston Detective John Mulligan's 1993 murder, deserves a new trial. Ellis has always maintained his innocence, and his attorney, Rosemary Scapicchio, has uncovered new evidence that she claims would have influenced his jurors' deliberations, had they heard it. Arguing for the Commonwealth was Assistant District Attorney (ADA) Paul Linn, assisted by Suffolk County Chief of Homicide Edmond Zabin.
Scapicchio has found two official reports detailing allegations that victim John Mulligan committed armed robberies of drug dealers with his friends and colleagues, Detectives Walter Robinson and Kenneth Acerra, one in 1991 and a second in 1993. Acerra and Robinson both later pleaded guilty to a string of such crimes after Detective John Brazil, a confessed member of the men's robbery scheme, turned evidence against his colleagues in exchange for immunity from federal prosecution.
The relevance for Ellis is that Acerra, Robinson, and Brazil were members of the elite task force investigating Mulligan's murder -- a conflict of interest, Scapicchio argues, for the men needed "to cover the tracks of what Mulligan and they were doing." Motivated to "shut down the investigation as quickly as they could, so their own criminal activity didn’t get exposed," they "railroaded a black kid who was out buying diapers," she charged.
Indeed, the three corrupt detectives each had a hand in the evidence used to convict Ellis, most notably a photo ID of him made by the teenage niece of Acerra's domestic partner, a witness Acerra brought forward without acknowledging their family relationship until months later. Defense lawyers called the niece's ID "tainted," since she first identified another man, but changed her mind after speaking privately with both Acerra and Robinson.
Detective Mulligan was shot five times in the face just before dawn as he slept in his SUV parked in the fire lane of a Roslindale Walgreens drugstore. "It was an execution," said then-Police Commissioner Bill Bratton, and investigators proceeded on the theory of "a message" sent by someone bent on revenge, a person known to the street-smart detective, for he'd allowed his assailant to sit in his passenger seat.
Yet within ten days, Ellis, then 19, and a friend, Terry Patterson, 18, were arrested, and prosecutors' theory of the case changed to that of a "random robbery" by two teens who saw the cop sleeping, decided they wanted his gun for a trophy, and shot him from curbside through a three-inch opening of the SUV's window.
Ellis and Patterson had stopped at Walgreens that morning, and Ellis purchased diapers in full view of ceiling-mounted video cameras. Afterwards, he voluntarily spoke to police and told them his story, and police later retrieved his box of LUVS with their timed and dated Walgreens receipt.
Terry Patterson was convicted in January 1995, largely because his fingerprints were found on the door frame of Mulligan's vehicle; yet he was released in 2006 after the Massachusetts Supreme Judicial Court disallowed the fingerprint evidence as "unscientific" and "unreliable."
Sean Ellis's September 1995 conviction came only at his third trial, after two previous jury panels deadlocked over whether he was in a joint venture with Patterson. He was sentenced to life without parole, and the years since have been pocked with legal setbacks: a 1998 retrial motion submitted by his trial lawyers, Norman Zalkind and David Duncan, was denied, as was their appeal.
At the hearings, Scapicchio brought out two actions she says Acerra and Robinson took to cover their illicit drug raids: According to two witnesses, within hours of the murder Robinson went to Mulligan's condominium and removed money from the slain detective's coat pocket -- money he never reported to the department, Scapicchio notes. And Kenneth Acerra discovered Mulligan's cell phone in a "secret compartment" of his SUV a full week after crime scene technicians failed to find it there and it was declared stolen. Scapicchio contends that Acerra removed the phone, wiped it clean of numbers (a claim ADA Linn disputes), and then put it back. No fingerprints were found on the phone -- not even Mulligan's.
The attorney feels a new jury should have the chance to review the evidence, armed with today's knowledge that these Mulligan task force members, deemed among "the best and the brightest" by lead investigator Sgt. Det. Thomas O'Leary, were actually linked with Mulligan in crimes. Referring to those crimes, Scapicchio noted in an interview, "We did have some of these pieces before, but we definitely did not have the connection with Mulligan. And [at the hearings] we were able to make those connections...show that each one of the officers...was involved in central portions of this investigation, which created a conflict that should give us a new trial. If we'd had that evidence...the jury might have believed our side."
ADA Paul Linn called the two robberies involving Mulligan "isolated incidents" occurring 18 months apart. He said the 1991 robbery, allegedly committed at gunpoint by Mulligan alongside Robinson in an Allston-Brighton parking lot, was "uncorroborated" (although police deemed the sole informant's reliability "good," and the incident was under investigation), and he said there was no evidence that Mulligan knew the 1993 drug raid led by Mulligan murder investigators Acerra, Robinson, and Brazil of two Boston apartments was illegitimate.
He said Terry Patterson's statement that he parked on a side street after shopping at Walgreens and walked back to the store with Ellis "to buy a cigar," plus sightings by several witnesses of two black men "fitting the men's general descriptions" and the fact Patterson changed the appearance of his vehicle after the murder, all led to the "inescapable conclusion that one of these men committed the crime." Yet no positive ID made was made of either man, save the photo ID of Ellis made by Detective Acerra's family relative, and no triggerman has ever been named.
Scapicchio also claims that tips from the police telephone hotline, several of which named specific suspects and motives, were withheld from Ellis's trial attorneys, as was a detailed lead from one Boston officer that another officer was behind the slaying. Norman Zalkind and David Duncan each testified they did not receive these tips and, if they had, would have sent out an investigator and submitted motions for further discovery, as was their demonstrated practice.
ADA Linn countered that the Commonwealth's internal coding system indicated the tips were turned over. He chalked up the discrepancy to "faulty memories" and "wistful thinking" by the attorneys, these 20 years later. He dismissed the internal police tip as "patently absurd."
Judge Carol Ball's ruling is expected by the end of May. Should she vacate Ellis's conviction, it is unknown whether the Commonwealth will pursue murder charges against him yet a fourth time. Arrested at age 19 and now 40, Sean Ellis, incarcerated for more than half his life, has been unwavering in his claim of innocence.