Questions from five Massachusetts Supreme Judicial Court justices came fast and furious last Thursday before an overflowing courtroom as appellate attorney Rosemary Scapicchio and Suffolk County Assistant District Attorney Paul Linn presented arguments in the Commonwealth’s bid to reinstate Sean Ellis’s 1995 convictions for the murder and robbery of veteran Boston Police Detective John Mulligan.

Ellis’s convictions were overturned last May by Suffolk Superior Court Judge Carol S. Ball, who, after examining his retrial motion and hearing eight days of evidence, concluded he did not receive a fair trial. She freed him on bail after he had spent nearly 22 years in prison.

The 52-year-old Mulligan was killed in 1993 by five bullets that were fired to his forehead in a cross-like pattern as he slept in his SUV outside a Roslindale Walgreens while working a private detail. His service revolver was also stolen. Police said the killer fired from the SUV’s passenger seat and added that the killer had to be someone the canny detective knew; but within days they arrested Ellis, then 19, of Dorchester, and Terry Patterson, 18, of Hyde Park, and changed their theory to the murder as a “crime of opportunity” by random teens aiminga to get the detective’s pistol for a trophy.

Chief Justice Ralph Gants characterized the slaying as more “assassination” than random act.
Ellis’s murder and robbery convictions came at his third trial, after two previous trials ended with hung juries. Their reversal by Judge Ball was largely based on new evidence that Scapicchio brought forward showing that Mulligan was an accomplice in an ongoing scheme of drug-dealer robberies perpetrated by three of his station-house friends, Detectives Walter Robinson, Kenneth Acerra, and John Brazil. All three investigated his murder, and Judge Ball ruled that had jurors known of Mulligan’s links to their criminal scheme, it might have influenced their verdict.

Gants seemingly concurred, asking ADA Linn, “Isn’t that a major game changer in terms of how one looks at the police investigation?”

Scapicchio has argued that the corrupt detectives, fearing that their crimes would be uncovered, prempted the probe by framing Ellis. “At stake was their livelihood and their freedom ... they had to find someone quickly,” she said.

Associate Justice Francis Spina asked, “Why pick on Ellis?” and Scapicchio responded that he became a scapegoat four days after Mulligan’s murder while being interviewed by police about the unrelated double homicide, 24 hours earlier, of two female cousins, aged 23 and 17. (An ex-boyfriend confessed to those murders and remains incarcerated.) Without an attorney present at the interview, Ellis told Det. Brazil that he and the younger cousin were at the Roslindale Walgreens buying Pampers at the time of Mulligan’s murder, having caught a ride there from his friend Terry Patterson. Ellis told police where to find the diapers and receipt and gave them Patterson’s cell phone number to confirm his story.

“He puts himself right in the middle of a homicide of a detective. Who would do that if they had actually committed a crime?” Scapicchio asked. Calling Brazil “desperate to make a quick arrest,” she said, “Now they have someone who they can hold out to the public who actually admits he was there.”

Scapicchio also uncovered a raft of tips that police received about Mulligan’s possible killer that Judge Ball found were not turned over to Ellis’s trial lawyers, which is a Brady violation. Most came in over the department’s telephone hotline, some giving names and motives; a tip from within the force accused a fellow officer of killing Mulligan in a “beef.”

Police did not follow up any of those tips, leading Ball to declare Ellis’s arrest and conviction “a rush to judgment.” Last Thursday, Gants connected the unexplored tips to the detectives’ joint crime ring, observing, “The fact of the matter is, if one had examined all of the persons who had a motive to kill detective Mulligan, it would have led to a revelation of the corrupt scheme.”

Linn dismissed Mulligan’s criminal links with the investigators, saying Acerra and Robinson’s motive to lie was not sufficient to warrant a retrial, adding, “There is no specific evidence that either they or Brazil compromised evidence during the homicide investigation.”

In response, Scapicchio described the three detectives as “involved from the beginning to the end” in fingering Ellis, and listed key evidence they had mishandled:

• Mulligan’s personal cell phone was not found in his SUV after the murder and police declared it stolen. Yet five days later Acerra pulled the bulky, 1993-vintage phone from the vehicle’s center console, saying he found it there while looking for a charger.

• Acerra and Robinson were the first officers to enter Mulligan’s condominium after the murder, and Robinson reportedly removed money from his coat closet, money he did not turn in to the department.
• Acerra and Robinson brought forward the only witness to identify Ellis: Rosa Sanchez, a teen with family ties to Acerra who reported seeing a man peering into the sleeping Mulligan’s SUV 45 minutes before the murder. Sanchez selected Ellis from photos, but only after first selecting another man, then getting a second try engineered by Acerra and Robinson.

Linn characterized Ball’s 2015 ruling as “riddled with errors” and insisted prosecutors gave Ellis’s trial lawyers all third-party-suspect tips. He then argued that the tips were irrelevant, given evidence that Ellis handled Mulligan’s stolen service revolver and the murder weapon after the crime. (He was convicted on two counts of possessing illegal firearms at his first trial.) “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.”

Spina pressed Scapicchio: “How is it that [police] found someone who coincidentally had the murder weapon?” SDhe said that Ellis’s firearms convictions were based on immunized testimony from his friend, Letia Walker, that he retrieved the guns from his cousin’s apartment the morning after the sisters were murdered there.

Several justices (two members of the panel had recused themselves from the hearing, citing conflicts of interest) questioned how Ellis could have entered a crime scene surrounded by police tape and found weapons in an apartment that was presumably scoured clean by detectives. Scapicchio indicated she shared their skepticism and, in the event of a retrial, she said she would investigate “what the police officers did to get [Walker] to tell the story that she told” and also retest the fingerprint police said was Walker’s on the gun clip.

The SJC’s ruling is expected this summer, and Ellis’s fate hangs in the balance. If prosecutors win their appeal, he’ll go back to prison for life. Should they lose, they’ve vowed to try him again.

It would be Sean Ellis’s fourth trial for the same crimes.

Elaine A. Murphy is a Senior Justice Fellow at Brandeis University’s Schuster Institute for Investigative Journalism. Author of the website justiceforseanellis.com, she is completing a memoir on her work on the Ellis case.

Further coverage in the Reporter:

Thankful for his freedom, Sean Ellis adjusts to life outside of prison- Nov. 2015