Walking with head held high, finally free
Sean Ellis hugs his sister Lasalle Ellis in Suffolk County Superior Court Dec. 18, 2018, as he awaits the judge's formal confirmation that murder and robbery charges against him have been dropped. Photo: Craig Walker, Boston Globe.
Senior Justice Fellow Elaine Murphy was drawn into the Sean Ellis case in 1995, when she was a writer living in Montreal and by happenstance saw newspaper coverage of his conviction for the 1993 murder of Boston Police Detective John Mulligan. She was stricken when she recognized Ellis as her son’s friend when they were both attending the Mitchell Elementary School in Needham, Massachusetts, during the 1980s.
Noting his steadfast claim of innocence and recalling his uncommonly sweet nature as a child, she reached out to Ellis and his lawyers and gained access to trial transcripts and discovery materials. This research convinced her of Ellis's innocence, and she began working with his attorneys to undo his convictions and has stayed involved with the case for the past 23 years. The Commonwealth had pledged to try Ellis for the fourth time in fall 2019, but abruptly changed course and dropped charges against him in the final weeks of December 2018.
By Senior Justice Fellow Elaine Murphy
It's been a long time in coming. Twenty-five years, to be exact. But Dorchester native Sean Ellis is now a free man at age 44 after the Commonwealth of Massachusetts formally dropped murder and robbery charges against him on Dec. 18.
Ellis was convicted in 1995, at his third trial, for the murder and robbery of Boston Police Detective John Mulligan in the pre-dawn hours of Sept. 26, 1993. The murder was a brutal assassination, with five shots lobbed in the detective's face as he slept in his SUV outside the Roslindale Walgreens while working a security detail. Sean was 19 at the time.
Days after the crime, Sean spoke voluntarily to detectives, without a lawyer present, telling them he'd shopped at the Walgreens mall around 3 a.m. that day for diapers for his cousin's baby, driven there by his friend, Terry Patterson, then 18. Police found the diaper receipt that confirmed the errand in Ellis's apartment. His attorney, Rosemary Scapicchio, asks, “Would you place yourself at a murder scene if you were guilty?”
Ellis and Patterson were tried separately, with prosecutors insisting they hatched a plot to shoot the uniformed detective when they saw him sleeping, a “crime of opportunity.” The presumed motive? To steal his service weapon as a “trophy.” The public was always skeptical about two random teens shooting a uniformed detective for this slim reason, in a manner that seemed more gangland execution than teenage modus operandi – this for a controversial detective who'd been the subject of 26 Internal Affairs investigations and seven lawsuits for misconduct, a man with many known enemies.
Patterson was convicted of the murder in February 1995, largely based on his fingerprints having been found on the window frame of Mulligan's SUV – or so police said. Yet Ellis’s first two trials ended in mistrial, with jurors unable to agree he'd assisted Patterson. No triggerman was ever established.
The evidence tying Sean Ellis to a joint venture was always flimsy. His uncle testified for the prosecution that Sean told him he was inside the store, shopping, when the crime was committed and Patterson passed him the weapons to hide after the crime: “That's not murder,” defense attorney Norman Zalkind argued strenuously, “He did not kill the cop.”
Scapicchio doubts this gun-hiding story, pointing out the uncle was on parole at the time, having served 20 years for armed robbery. He told his family that Detective John Brazil (who later admitted to felonies, detailed below) threatened him with more prison time unless he cooperated. Scapicchio believes the uncle was squeezed by Brazil to give this account. Notably, the weapons were found hidden under leaves in a Dorchester field only after a tip came in giving their location – delivered by Brazil. And puzzlingly, two other Boston detectives were questioning the victim's girlfriend and her roommate about a “pearl-handled gun” owned by Mulligan five days before a gun of that exact description, found in the leaves, was designated the murder weapon. How did they know it had pearl handles?
Scapicchio believes the weapons were planted by corrupt police and that several of Sean's friends (two of them murdered on Dorchester streets before Ellis's trials) were likewise coerced to give false statements about the guns. At the expected fourth trial she planned to contest the gun evidence as tainted.
Attorney Rosemary Scapicchio addresses reporters about her client Sean Ellis's case and the Suffolk County District Attorney's Office handling of his murder charges being dropped. Photo: Lisa Button.
The case started falling apart in 2006, when Patterson's fingerprints were disallowed as evidence after the state's highest court found their method of collection unscientific and unreliable. Suffolk County prosecutors then offered Patterson a deal: plead guilty to manslaughter and walk out of prison. He did.
But Ellis remained behind bars, his first retrial motion having been denied in 1999. It took until 2015 for his murder and robbery convictions to be overturned, spurred by a second retrial motion submitted by Scapicchio, in which she presented federal grand jury testimony showing that victim John Mulligan was an accomplice in an extensive drug-dealer robbery scheme then being perpetrated by three of his fellow officers – Detectives Kenneth Acerra, Walter Robinson, and the above-mentioned John Brazil – crimes to which the men subsequently admitted guilt, with Acerra and Robinson doing prison time after Brazil flipped. All three men were investigators of Mulligan's murder, a major conflict of interest.
[Author's note: The grand jury evidence was uncovered by me, buried in thousands of pages of testimony, as I worked alongside attorney Rosemary Scapicchio. Its moment of discovery is among the most satisfying of my life. I'd been digging for years to find evidence linking the men, on the theory that Mulligan, who was indebted and always looking for cash, was tied into the lucrative drug dealer robbery scheme of his station-house friends, and for this reason the survivors sabotaged his murder investigation to stop it in its tracks and keep their joint crimes from being discovered.]
Scapicchio also showed the court dozens of previously unrevealed police hotline tips that gave specific names and even motives of suspected killers of Mulligan and, most specific of all, a tip from an investigating detective that the murder was an inside job committed by a fellow officer who had a “beef” with Mulligan over his sexual harassment of his young daughter. Not one of these tips was disclosed to Sean's trial attorneys. Not one was followed up by Boston detectives. Scapicchio says once they had Ellis and Patterson in their sights they were hell-bent to prosecute.
In 2015, after holding nine days of evidentiary hearings, Suffolk Superior Court Justice Carol Ball (now retired) found “justice was not done” at Ellis’s trial and overturned his convictions, recommending a retrial. Had his trial lawyers been armed with the facts of Mulligan’s involvement in the investigating detectives' crimes, Ball opined, they could have argued that these men, who had a hand in virtually all the evidence used against Ellis, were motivated to frame him and thus bring a stop to the murder probe before it “turned in their direction.”
A year later, in 2016, the Massachusetts Supreme Judicial Court unanimously affirmed Judge Ball’s ruling, with SJC Chief Justice Ralph Gants characterizing the documentary evidence of Mulligan's criminal link with the three investigators “a game changer.” Yet prosecutors pressed ahead, emphatically stating they believe Ellis guilty and would retry him a fourth time in September 2019.
Now prosecutors have abruptly dropped charges, citing faded witness memories and the “shameful conduct” of Detectives Acerra, Robinson, and Brazil that, “perhaps more than any other factor... presents a major challenge to our ability to put a successful case to a new jury.” While acknowledging the involvement of these corrupt detectives “to varying degrees in the investigation....” prosecutors still cling to the notion that theirs was “criminal conduct unrelated to this case.” And, despite documentary evidence and two court rulings to the contrary, they claim, “we don’t believe Det. Mulligan was involved in their schemes" but “unfortunately, no matter how irrelevant their corruption might be to John Mulligan’s murder, it is now inextricably intertwined with the investigation and critical witnesses in the case....”
In a nod to the SJC ruling, the DA concluded, “A lawyer today would argue that [Mulligan] was involved, and that they had a motive to protect themselves and their criminal enterprise….” This, of course, is attorney Scapicchio's case theory, and in Ellis’s 2015 retrial motion hearings she backed it up with specific, persuasive evidence of the detectives’ questionable conduct throughout the investigation. In a fiery statement to the press after the Suffolk Superior Court hearing authorizing the removal of Ellis's GPS ankle bracelet, she countered prosecutors’ claims by stressing Mulligan's now-proven criminal link with his friends, and added, “It’s not a matter of ‘fading memories’ of witnesses. The witnesses outright lied,” and, referring to the ignored hotline tips, “Police never looked for anyone else” besides Ellis and Patterson. “You can’t find the killer if you don’t look.”
Scapicchio characterized the outgoing DA's dropping of charges three weeks before Rachael Rollins assumes the elected post as “a political act” undertaken by the current regime to “spin the story their way.” In the primary debates leading up to her election, Rollins had publicly expressed skepticism over police and prosecutorial conduct in the case (as found by the courts) and said a new look into it would be one of her top priorities.
At the post-hearing press conference, a reporter, citing the cloud that prosecutors continue to cast over Ellis's innocence, asked him point-blank, “Sean...with all of the history of these officers that were corrupt, how are you going to walk through the city of Boston?”
After a pause, Sean Ellis, ever dignified, said simply, “With my head up. With my head up.”
What is 75 percent of wrongful convictions? ›
Eyewitness misidentification is by far the leading cause of wrongful convictions. Nationwide, 75% of wrongful convictions that were overturned by DNA testing involved erroneous identifications from victims or witnesses.How can I prove I was wrongfully convicted? ›
A wrongful conviction based on possible factual innocence can sometimes be detected using postconviction DNA testing. Postconviction DNA testing is a major factor contributing to the increased discovery of wrongful convictions.What are the 6 main causes of wrongful convictions? ›
- Eyewitness misidentification.
- False confessions.
- Police and prosecutorial misconduct.
- Flawed forensic evidence.
- Perjured testimony.
Donovan prisoner released after 30 years behind bars with help of Project for the Innocent. Humberto Duran's mom has been waiting to hold him as a free man for 30 years. That's how long her son has been behind bars, all the while proclaiming his innocence.What is the #1 cause of wrongful convictions in the US? ›
Mistaken witness id
Eyewitness error is the single greatest cause of wrongful convictions nationwide, playing a role in 72% of convictions overturned through DNA testing.
The Innocence Project succinctly answers the question of which state has the most wrongful convictions (as evidenced by exonerations), and that answer is the State of Illinois.