Evidentiary Hearings
August 25-27, 2014
"Ellis case update: Hearings on evidence dispute to be continued"
An edited article based on this report by Elaine A. Murphy appeared in the 9/4/14 Dorchester Reporter
NEWS
The Boston Police Anti-Corruption Unit’s files on Boston Detectives Kenneth Acerra, Walter Robinson, John Brazil, and the victim, John Mulligan, were released to attorney Rosemary Scapicchio on 8/26 by order of Judge Carol Ball. A preliminary reading shows that in 1993 the unit was investigating a 1991 allegation of a drug-dealer robbery perpetrated by Mulligan, together with task force member Walter Robinson. That this information was withheld from Ellis’s trial lawyers, Norman Zalkind and David Duncan, is a constitutional violation, Scapicchio says.
Judge Carol Ball indicated she will take a “broad view” of the issues at the hearings, given that previous courts "did not know what we now know -- that [Mulligan murder investigators] Acerra and Robinson were actively engaged in crimes at this time, and Mulligan was tied in with them."
Hearings adjourned until November 17, 18, 19, 2014.
CONTEXT
In a Suffolk Superior courtroom presided over by Judge Carol S. Ball, hearings got underway on August 25th to consider charges of prosecutorial misconduct leveled by appellate attorney Rosemary Scapicchio in her retrial motion for Sean K. Ellis, convicted in 1995 after two mistrials for the September 1993 murder of Boston Detective John Mulligan. Attorney Scapicchio has said Suffolk County prosecutors failed to disclose important third-party culprit evidence to Ellis trial lawyers. Assistant District Attorneys (ADAs) Paul Linn and Edmond Zabin argued on behalf of the Commonwealth.
Chief among the information Scapicchio says was covered up is a tip brought forward by now-deceased Boston officer George Foley, information that he told supervisors he got in late August 1993 from Boston corrections officer Ray Armstead, Jr. According to Foley, Armstead said his father, Boston Police Officer Ray Armstead Sr., was plotting to murder Mulligan and foretold that Mulligan would be found "shot between the eyes at Walgreens" -- exactly what did occur weeks later. Scapicchio uncovered Foley's tip in FBI documents she obtained through the Freedom of Information Act.
Prosecutor Paul Linn said, "The [Foley] report almost certainly was turned over to [trial attorney] Norman Zalkind." Scapicchio contested this, telling Judge Ball, "David Duncan [Zalkind's partner] unequivocally said he did not receive it and cannot imagine they wouldn’t have followed it up."
The judge denied prosecutors' motion to restrict the hearing to the Foley matter, explaining she wants to take a "broad view" of the issues. She noted that when the SJC considered Ellis's appeal in 2000, they "did not know what we now know -- that Acerra and Robinson were actively engaged in crimes at this time, and Mulligan was tied in with them." Had they known all that, "it would have given them a "whole new theory to think about...a whole new argument that Acerra and Robinson, during the investigation, were serving two masters: keeping people from discovering their own 'stuff' and finding the killer."
Scapicchio has brought forward 1996 federal grand jury testimony naming Mulligan as an accomplice of Acerra and Robinson's in robbing two Commonwealth Avenue apartments leased by drug dealer Robert Martin in September 1993, 2 1/2 weeks before his murder.
When Prosecutor Linn countered that Acerra and Robinson's acknowledged crimes had nothing to do with the Mulligan murder investigation, Judge Ball disagreed, saying the idea of the men's “interference” in the investigation in order to cover up their own crimes, as Scapicchio contends, is a “logical argument,” given that Mulligan's cell phone was found in his SUV a full week after the murder -- by Acerra -- and was possibly cleaned up, and that money was removed by Robinson from Mulligan’s apartment soon after the detective was found dead.
Attorney Scapicchio interjected that Acerra and Robinson "brought forward the one and only witness who identified Ellis."
SUMMARY OF TESTIMONY
Mulligan’s corruption
The hearings began with testimony from a Quincy woman, Michele "Missy" Hagar, who dated Mulligan in 1993. She admitted to being addicted to crack cocaine and heroin at that time, to doing drugs in Mulligan's presence, and to dealing drugs to support her habit. She said that her encounters with Mulligan were mainly for sex "in return for favors...He gave me one thing and I gave him another." Asked what "favor" Mulligan gave her, she responded, “He got me off a case in South Boston."
Hagar said she was visited by two Boston detectives in the days after Mulligan's murder who said her telephone number was the last one called from the slain detective's cell phone. Hagar could not recall the identity of the detectives. "So somebody had those [cell phone] numbers," attorney Scapicchio said. Det. Mulligan's cell phone was not found by technicians who scoured his Ford Explorer after his murder, and it was declared stolen. A full week after the crime, the phone was discovered in the SUV's center console by Det. Kenneth Acerra in what police characterized as a "second search of the vehicle."
Conduct of the Mulligan murder investigation
The remaining hearing testimony, lasting three days, was given by Sgt. Detective Thomas O'Leary, who led the 1993 Mulligan investigation. "I shepherded it, " he clarified, saying "there were many sets of eyes watching,” including D.A. Ralph Martin II, Chief Prosecutor Phyllis Broker, Homicide Unit Director Captain Edward McNelly, and Police Commissioner William Bratton. At the time, O'Leary had been a detective for just a month, but when the 911 alert came in just before 4 a.m. on Sunday, September 26, 1993, he was on the on-call team and got the assignment.
Task force formation
Sgt. Detective O'Leary's first order of business was to set up the task force. Commissioner Bratton wanted a 50-man team, but homicide was only 24-25 strong, so others had to be found. Over dinner in a Dedham restaurant the evening after the murder, O'Leary, McNelly, and Bratton firmed up the list, adding investigators from the MBTA and Station E-5, "because it was John's district and where the crime was committed."
We wanted only "the best and the brightest," O"Leary said.
On Monday at 5:00 p.m., O'Leary gave the initial task force briefing, telling his men, "Leave no stone unturned. Look at everybody." Police asked for the public's assistance and set up a hotline in homicide, and, "People came out of the woodwork: psychics, ex-wives, inmates with grudges." All tips were anonymous; all were documented for discovery.
Tips followed and not followed
Asked how he selected which phone tips to follow, O"Leary answered, “You have to decide if they have merit” and that it helped to have a specific person to check on. Scapicchio proceeded to read aloud seven detailed tips containing information such as, "phone call from South Bay Correctional saying a [named] drug dealer inmate had a contract out to kill John Mulligan; [name redacted] is the killer of the detective. He has a criminal record; four white males in a yellow Pontiac Catalina in the Beech St. projects are the killers; a former inmate at the Suffolk County House of Corrections made repeated threats of death to Mulligan; Mulligan's murderers are in a Black BMW on Moore St., Dorchester; a 5’8” or 9” black male with a long record, a drug dealer, has Mulligan’s gun and is standing outside Harry’s Bar right now."
O'Leary admitted that of those tips, only the first was assigned for follow-up -- given to Acerra and his supervisor, Sgt. Det. Lenny Marquardt. No report was ever made of their investigation.
Scapicchio submitted a packet of 50 additional tips, none of which were followed up or reported on. And, despite the elaborate tip-numbering-and-indexing system described by O'Leary to ensure that chief prosecutor Phyllis Broker got all tips for discovery purposes, Scapichhio noted that two tips postdated the trials, other tips went unnumbered, and a sub-group had had an additional layer of numbering added to them by an unknown hand: "That's a problem," O'Leary admitted of the latter disclosure.
His explanation for not following up the phone tips: "We were too busy following the evidence we had, that being the brown Volkswagen and sightings of two African-American youths around Walgreens." Detectives received these tips on the day of the murder directly from two individuals, Edmond Zabin pointed out, not from anonymous phone tips.
First, Victor Brown, a "family man" from Fieldmont Street, near Walgreens, walked into Station E-18 to say that a brown VW with a racing bra backed into his street around the time of Mulligan's killing, and two African-American youths set off on a footpath towards the Walgreens mall. Second, Art DeSalvo, who delivered Sunday newspapers in the vicinity around 3:15 or 3:30 a.m., "nearly got T-boned by a small brown car at the intersection of Hyde Park Ave. and American Legion Highway."
"You chase what you know," O'Leary emphasized, saying the detectives concentrated on this information, and those other tips "flew in the face of the evidence we had." Indeed, O’Leary separated all tips into two piles: one related to the brown VW and the two youths, and the second covering all other tips.
Next, he said, two Walgreens witnesses, Rosa Sanchez and Evony Chung, early on described seeing two African-American teenagers around Walgreens. O'Leary then corrected himself about Chung, saying, "actually, we had to follow her up," and Rosemary Scapicchio clarified for the record that Chung didn't give her statement until October 1, "so there was no information corroborating what Rosa Sanchez said about seeing an African-American guy at Walgreens by September 30," the day Officer George Foley related his tip.
Setting the context for Foley's tip, ADA Zabin elicited that between September 26 and 30, investigators were busy working on three other murders (two of the victims were Sean Ellis's cousins), and in the Mulligan investigation they were also pursuing the victim's arrest record, questioning Mulligan's girlfriend, and searching the vicinity for Mulligan's missing Glock pistol: "There was various running around,” O'Leary said. On September 30 they found Terry Patterson's car stashed on Stratton Street, Dorchester and had it identified by Victor Brown and one of Patterson's Hyde Park neighbors; that night they brought in Sean Ellis for questioning about his cousins' murders.
Officer George Foley’s tip and aftermath
It was on this day that Officer George Foley told his superiors he'd learned in August that Officer Ray Armstead, Sr. "had a beef with Mulligan" and planned to kill him. O'Leary testified that detectives never took Foley’s tip seriously: "I gave George Foley’s allegation no merit whatsoever...It flew in the face of the evidence we had...It was so detailed it was crazy...I thought [the tip] was ludicrous then, and I think it's ludicrous now."
Describing Foley as "a good detective" and "a friend," O'Leary repeated several times over that Foley was beset by "alcoholism and mental illness" and said, "I think George broke out drinking Wednesday night, went to bed, and had a vision. He was an alcoholic. And on Thursday he came in with this story."
O’Leary and three other detectives "sat Foley down in McNelly's office over this, because it was outrageous," and Foley proceeded to "break down in front of us...He had his head down, distraught...He went back and forth with his story [saying], 'maybe I'm wrong, maybe I'm right.'... He was a mess."
Foley's interviewers stripped him of his gun and badge and called in the stress unit in to take him to a hospital for evaluation.
Attorney Scapicchio brought out that 30 days later Foley was back on the force -- with gun -- evidently fully recovered. "To get your gun back you have to have a disciplinary hearing," she pointed out. "Was there a hearing? Where is the report of that? "
O'Leary had no recollection of any such hearing and knew of no report.
Detectives were ordered to interview Foley's purported informant -- Armstead's son. Questioning Ray Armstead, Jr. was "a very sensitive situation," O'Leary said, "awkward" and "personally draining" for him. Detective Dan Keeler asked Armstead "six questions," and a "perplexed" Armstead Jr. said, "What are you talking about?" and denied he'd spoken to Foley.
Neither O'Leary nor any other detective interviewed the man accused of killing Mulligan, Ray Armstead, Sr.
Scapicchio revealed that George Foley was a member of the Mulligan task force. "The best and the brightest? " she asked O"Leary pointedly. "This 'alcoholic' you now say?"
O'Leary countered that Foley was a "good detective," albeit with problems.
"The best and the brightest?" Scapicchio asked again, hurling the names of two other task force members later stripped of their badges: "Kenny Acerra? Walter Robinson?"
Mulligan’s cell phone not found in his vehicle until a week after his murder
Detective Mulligan's cell phone was not initially found in his leased Ford Explorer, but turned up a week later in the vehicle's center compartment in a "second search" of the vehicle. Scapicchio questioned O'Leary about that search and about securing the vehicle. He said his men put tarps over the Ford Explorer outside Walgreens, as it had begun to rain. He did not think an inventory of the SUV was made then: “Not right away." He did not recall when he learned about Mulligan having a cell phone, or if a cell phone was asked about at the crime scene, or if they checked for one there.
Scapicchio then produced an inventory of the car's contents made by Detective Robert Ford dated 9/26/93 -- the day of the murder. She read aloud the list of items specifically noted as being in the SUV's center compartment: nine Duncan Donuts napkins, sunglasses, a key chain, an unopened pack of Lucky Strikes, and several other small items. No cell phone.
The car was towed “at some point” to the D street crime lab, O'Leary said, and secured there to allow forensic technicians to look into blood and brain matter. Scapiccho asked whose idea it was to search Mulligan's vehicle again on October 5th, and O'Leary answered, "Acerra or [Richie] Ross." Pressed as to why this second search was initiated, O'Leary recalled that "Mulligan's girlfriend, Mary Shopov, suggested we check in a second compartment," presumably for the cell phone.
"You mean the crime scene investigators missed it?" Scapicchio asked. She then produced a police report documenting that Acerra approached Detective Richard Ross to say they should look in the car.
Judge Ball interjected, "You’re suggesting this was a set-up by Acerra?"
"Yes," Scapicchio said, and, turning to the witness, underlined, "The report says was it Acerra’s idea…There's no mention of Mary Shopov directing them. "
“Right,” O'Leary conceded. He admitted he did not question Acerra after he'd found the phone. He maintained that "the crime lab people told detectives, 'The phone was there. We saw that phone on Sunday night, but we didn’t know anyone was looking for it.'”
O'Leary had little memory of actions taken once Mulligan's phone was found. When Scapicchio asked, "Did they search the contents of the phone?" he said, “I don’t know if anybody did that.” He had "no memory" of assigning anyone to investigate the phone's contents, or of trying to find the cell phone provider, or if anyone "went into the cell phone to see the numbers."
Prosecutor Zabin downplayed the importance of the cell phone as evidence, saying that, unlike today, when cell phones contain vital data, this was not the case back in 1993. Sgt. Detective O'Leary agreed.
Rosa Sanchez’s two separate viewings of the unchanged photo arrays
When Attorney Scapicchio initiated questions about witness Rosa Sanchez's photo identification of Sean Ellis, prosecutor Paul Linn said, “Rosa Sanchez’s ID has withstood scrutiny.” Zabin recapped the circumstances of Sanchez coming forward with information: On the afternoon of the murder, she called Officer Elvis Garcia (a relative of hers based in Boston's Area E-5) to say she was at Walgreens and "recognized someone there." The tip was given to Detective John Brazil, and he and Acerra went to Rose Sanchez's home to interview her. On October 5th she was brought into homicide to look at two photo arrays, one created around Sean Ellis and the other around Terry Patterson.
Acerra’s failure to disclose personal relationship with Rosa Sanchez
Rosemary Scapicchio pointed out that it was Kenneth Acerra and his partner, Walter Robinson, who drove Rosa Sanchez and her husband, Ivan, to homicide on October 5th to see if she could identify the man she saw at Walgreens. The attorney asked Sgt. Det. O'Leary, "Did Acerra disclose he had personal relationship with this witness? (Acerra then lived with Rosa's Aunt Lucy, with whom he had a child.) "I'm not sure when [he did]," O'Leary answered. "I think it was at some point."
Stating that Acerra was one of four officers sitting in the room during the Sanchez photo showing (the others were Detectives Robinson, O'Leary, and Ross), Scapicchio pressed, "Did Acerra tell anyone, "Rosa Sanchez is my girlfriend’s niece?
"No, "O'Leary said.
"In fact Acerra did not disclose it until months later -- a conflict that was a distinct violation of department rules," Scapicchio said. O'Leary responded that he'd "have to read the rules" to ascertain this.
Sanchez’s first selection from the photos
Scapicchio then zeroed in on the first person Rosa Sanchez selected from the array (after initially spotting a photo of a man she said was stalking her, causing that image to be covered up). After considerable back and forth, O'Leary conceded that Sanchez did point to one photo, saying, "This looks like him."
"Did she sign and date that photo?" Scapicchio asked.
“No, because she did not make a positive ID,” O'Leary said. “We did not consider this an ID."
Attorney Scapicchio then got the witness to agree that, by today's standards, this first selection of Rosa Sanchez’s would be considered a viable ID --that "even if the witness is only 30% sure, it would be considered an ID and the photo would be signed and dated."
(Author's note: The first photo Rosa selected was the same man her husband, Ivan, selected some days earlier when detectives showed him the photo arrays in their apartment.)
Sanchez’s second viewing of the same arrays
At this point, Rosa Sanchez left the station with her husband and Detectives Acerra and Robinson, who planned to drive the couple home. But within moments she was escorted back into homicide by Robinson and given another look at the same arrays – with all photos in the same places as before. This time she chose Sean Ellis right away, amending her earlier choice. And this time police asked her to sign and date the photo.
Asked what precipitated Sanchez's second viewing, O"Leary said "On the stairs down, Rosa whispered in Spanish to her husband that she'd actually seen the man, saying 'If they killed a cop, they'll kill me.' Acerra, who spoke Spanish, overheard this and translated it to Robinson."
(Author's note: this account differs in detail from Acerra's testimony at the 12/94 motion hearing at which defense attorneys motioned to disallow the Sanchez ID as evidence. In Acerra's account then of what precipitated her second viewing, he said Rosa was sitting in his car outside homicide, crying, and Robinson asked her directly, "What's wrong?")
After Rosa's second viewing of the arrays, the D.A.'s office notified homicide "within the hour" that Acerra and Robinson must be questioned about the session, under oath, on tape.
"Why was that request made?" Judge Ball asked the witness, and Det. O'Leary said, “I think it was to protect the integrity of the case.”
Attorney Scapicchio clarified that the questioning of Acerra and Robinson was not done under oath. She asked the detective if he'd asked Acerra or Robinson to make a report "about what happened," or tasked them to "reduce their conversations with Rosa to writing," or if he'd asked Rosa Sanchez or Ivan Sanchez what happened.
“No," the detective said in answer to these questions.
Acerra's removal from the task force
The Judge indicated she wanted to explore the "brou-ha-ha" in which chief prosecutor Phyllis Broker allegedly accused Acerra of planting the phone and accused Robinson and Acerra of mishandling witnesses (at the Sanchez photo viewing) and subsequently removed Acerra from the task force. "How long was Acerra off the case?" Scapicchio asked Detective O'Leary.
"Days," he replied, stressing, "He was reinstated." Asked, "How did he get put back?" O'Leary said, “I don’t remember; you’ll have to ask Phyllis Broker." He said he didn't follow up the matter with Broker and Acerra.
PREMATURE Questions about the pearl-handled gun
Two guns were recovered under some leaves and brush in a Dorchester field on October 6, 1993: Det. Mulligan's stolen Glock pistol and a pearl-handled, .25-caliber Raven revolver that police said was the murder weapon. This gun had a long history of being illegally passed back and forth among multiple individuals and had recently been reported as stolen at Boston's Caribbean Festival. Detective O'Leary was certain that no link regarding ownership was made to Sean Ellis, but was uncertain about Terry Patterson: "I'd have to check the report."
O'Leary described how police located the guns, which until now has not been revealed in testimony: Sean's Uncle, David Murray, tipped off Detectives Brazil and Keeler about the hiding place in the field, having learned it from Sean's friends, Kelvin Chisholm and Curt Headen, who claimed they brought the guns there.
Both Detective O'Leary and prosecutor Zabin stated that Murray made clear to police that Terry Patterson gave Sean the guns to hide.
Judge Ball expressed curiosity regarding questions about a "pearl-handled gun" that Boston detectives put to two witnesses several days before a gun of this description was found in the Dorchester field and designated the murder weapon. O'Leary was vague on this topic, saying "Detective McCarthy questioned Mulligan's girlfriend's roomie about it in this vein, and he mentioned it...[but] I don't know much."
Four cell phones under the same contract registered to Mulligan, Acerra, and Brazil
Scapicchio quizzed O'Leary about four cell phones purchased by Mulligan in May 1992, one registered to Brazil, two to Mulligan, and one to Acerra. All phones were private, not business phones, and all were covered under the same contract. O'Leary said he knew Sean's lawyers had made a discovery request for information about the four phones and any business dealings that sharing them might imply. "Did this cause you to investigate?" Scapicchio asked.
O'Leary said, “No, because we were going to where the evidence led.”
CONTINUANCE
On Wednesday, August 27th, Judge Ball suspended the hearings until November 17, 18, and 19 to allow attorney Scapicchio time to vet the Boston Police Anti-Corruption Unit’s (ACU) investigative files on Detectives Acerra, Robinson, Brazil, and Mulligan. The attorney received the files – 500-plus pages -- from prosecutors the previous day (Aug. 26), only after Judge Ball ordered their release.
These files had remained under wraps for two decades. Ellis’s trial attorney, Norman Zalkind, first sought the ACU files on Acerra and Robinson in 1994 after learning that Walter Robinson gave false testimony and presented doctored evidence in his 1992 appearance before the grand jury considering drug charges against fellow Boston officer Adelberto Lio. Scapicchio continued seeking the files through subsequent years and ultimately sued the city for access, both to them and to the ACU files on Detectives John Brazil and John Mulligan.
Scapicchio’s preliminary reading of the released ACU files has turned up an allegation of a 1991 robbery of a drug dealer in Boston's Allston-Brighton section by Mulligan and Walter Robinson in a complaint submitted in November 1993 by "a credible witness." (This 1991 robbery allegeation was reported in the Boston Globe in 1996: Ric Kahn, “1993 charge revived in police probe,” Boston Globe, February 18, 1996.) If borne out, it would be further evidence of Mulligan's link with Robinson's criminal activities – and proof that police withheld from the defense their knowledge of Robinson’s criminal behavior as he served on the Mulligan task force.
The issue for Ellis is whether a jury might have reached a different verdict had they known of Robinson’s conflict of interest – a conflict that may have colored his actions and motivations as he investigated Mulligan’s murder.
Expected to appear at the upcoming November hearings are Sean's trial lawyers, Norman Zalkind and David Duncan, and the three Mulligan task force detectives who later admitted to extensive perjury and robbery charges: Kenneth Acerra, Walter Robinson, and John Brazil. It is unclear if retired Boston Police Officer Ray Armstead Sr., the subject of the contested tip by Boston Police officer George Foley, will be in court.