Judge Carol C. Ball presided over three days of hearings in Suffolk Superior Court last week that were held to consider appellate attorney Rosemary Scapicchio’s charges that prosecutors withheld exculpatory information from defense lawyers for Sean K. Ellis, who, after two mistrials, was convicted in 1995 of the September 1993 murder of Boston Police Detective John Mulligan. Scapicchio is seeking a fourth trial for Ellis, who has consistently maintained his innocence. Assistant District Attorneys Paul Linn and Edmond Zabin argued for the Commonwealth.

Saying she would take a “broad view” of the issues in the case, Judge Ball ordered the immediate release of the Boston Police Department’s Anti-Corruption Unit’s files on Detectives Kenneth Acerra, Walter Robinson, John Brazil, and the victim, John Mulligan – files that have been unavailable to Ellis’s defense lawyers for 20 years. “Previous courts did not know what we now know, that Acerra and Robinson, who investigated Mulligan’s murder, were actively engaged in crimes and that Mulligan was tied in with them,” the judge explained.

In her retrial motion, Scapicchio brought to light 1997 federal grand jury testimony naming Mulligan a co-venturer with Acerra and Robinson in a 1993 Boston drug-dealer robbery. And the newly released files reveal a 1993 allegation that Mulligan and Robinson together robbed an Allston-Brighton drug dealer in 1991.

That the police department knew about the detectives’ misconduct and did not reveal it to defense lawyers is a constitutional violation, Scapicchio says. The issue for Ellis is whether a jury might have reached a different verdict had they been given this information. Scapicchio pointed out that Robinson and Acerra brought forward the only eyewitness to identify Ellis, teenager Rosa Sanchez, the niece of Acerra’s girlfriend.

Sanchez was at Walgreens in Roslindale the night of the murder and identified Ellis as one of two black men she saw around Mulligan’s car. Scapicchio’s skepticism of the identification process was evident in her questioning of Sgt. Detective Thomas O’Leary, who headed the Mulligan murder investigation. He was on the grill for for three days of testimony.

Acerra and Robinson drove Sanchez and her husband to homicide nine days after the murder to see if she could identify the men she saw at Walgreens. Scapicchio pointed out that Sanchez initially identified a photo of someone other than Ellis, saying, “This looks like him,” yet police did not have her sign and date the photo. O’Leary agreed with reluctance, insisting, “We did not consider it [a positive] ID,” while conceding that by today’s standards Sanchez’s selection would be considered an ID, and the photo would be signed and dated.

Sanchez then left the station with her husband and Acerra and Robinson, but within minutes was escorted back by Robinson to have another look at the photos. Asked why, O’Leary explained that Acerra overheard Rosa whisper to her husband that she actually saw the man, but purposely didn’t identify him. Shown the arrays again – with all photos in the same positions – Sanchez chose Sean Ellis right away, and this time police had her sign and date the photo.

Scapicchio’s further questioning revealed that Acerra did not disclose his personal relationship with Sanchez before the identification session. “Did Acerra tell anyone [that] ‘Sanchez is my girlfriend’s niece?’” Scapicchio asked, and O’Leary admitted the detective had not.
“In fact Acerra did not disclose it until months later,” Scapicchio stated, calling the omission “a conflict that was a distinct violation of department rules.”

Sanchez’s identification was the only evidence brought forward that linked Ellis with Mulligan’s vehicle. ADA Paul Linn maintained, “Rosa Sanchez’s ID has withstood all scrutiny.”

Scapicchio also questioned O’Leary about an inventory of the contents of Mulligan’s Ford Explorer made on the day of the murder in which all items found in the SUV’s center compartment were listed, but did not include a cell phone. Yet a week later, while the car was undergoing forensic analysis, Acerra initiated another search of the vehicle and found Mulligan’s cell phone in the center compartment.

“You mean the crime scene investigators missed it?” Scapicchio asked, and O’Leary countered, “The [D Street] 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 did not question Acerra after he found the phone, nor did he recall if anyone “went into the cell phone to see the numbers.” ADA 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, and O’Leary agreed.

Scapicchio also questioned O’Leary about a tip relayed by Boston officer George Foley that she unearthed from FBI documents and claims police withheld from Ellis’s trial lawyers. (ADA Paul Linn disputes this claim and told Judge Ball, “The Foley report almost certainly was turned over to Norman Zalkind.”)

Foley told his supervisors that in late August 1993, Boston corrections officer Ray Armstead, Jr. told him his father, Boston Police officer Ray Armstead Sr. “had a beef” with Mulligan and plotted to kill him, saying, “Watch for it: Mulligan, shot between the eyes at Walgreens.” Mulligan was murdered exactly that way three weeks later, on September 26.

O’Leary testified that although Foley was a good detective, he was also an alcoholic with “mental illness.” “I gave his allegation no merit whatsoever,” he said. “It was so detailed it was crazy.” Ray Armstead, Jr. denied to detectives that he spoke with Foley, and when detectives questioned Foley, he “went back and forth with his story” and had “a breakdown in front of us.” Foley was stripped of his badge and gun and committed to a hospital for evaluation.

Scapicchio pointed 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 said. O’Leary recalled no such hearing or report.

The hearings will be continued on Nov. 17. Former chief prosecutor Phyllis Broker is expected to appear, as will Ellis’s trial lawyers, Norman Zalkind and David Duncan, and three Mulligan task force investigators: the convicted Acerra and Robinson and retired Detective John Brazil, who was granted immunity for turning evidence on the two men.