PUBLISHER'S NOTE: (False eyewitness identifications): This Blog is interested in false eye-witness identification issues because wrongful identifications are at the heart of so many DNA-related exonerations in the USA and elsewhere - and because so much scientific research is being conducted with a goal to making the identification process more transparent and reliable- and less subject to deliberate manipulation. I have also reported far too many cases over the years - mainly cases lacking DNA evidence pointing to the suspect - where the police have rigged the identification process in order to make an identification inevitable.
Harold Levy: Publisher: The Charles Smith Blog.
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PUBLISHER'S NOTE: This case is, as Justice Robert Ullman described it, a very sad chapter in the history of the criminal justice system. It certainly belongs in my 'Enough to make one weep' department: The spectre of an innocent young black man - whose life may have turned out to be drastically different had he not gone into a Walgreens to buy some diapers - convicted of 'executing' a police officer (five bullets to the face) - after, amongst other serious transgressions, police pressured a witness to 'finger' him. (All in an investigation tainted by police corruption - all of which was documented in the Netflix series 'Trial 4.") As Maurice Possley writes in his National Registry of Exonerations entry, at the link below:
"Rosa Sanchez told police she and her husband came to the Walgreens just after 3:05 a.m. to buy soap. She said as she walked into the store, she saw a young black man crouching next to Mulligan’s SUV. She said that Mulligan was asleep in in the vehicle with the seat tilted back. Sanchez said that she left the store at 3:25 a.m. The man she had previously seen crouching near Mulligan’s vehicle was now standing at a pay telephone with another black man, she said.
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"Detectives assembled two photographic arrays, each containing eight photographs. One contained Patterson’s photograph and the other contained Ellis’s photograph. On October 5, Rosa Sanchez and her husband, Ivan, went to the police homicide unit where she viewed the photo arrays under the supervision of Detectives Walter Robinson and Kenneth Acerra. Acerra not only knew Sanchez personally, he also lived with Sanchez’s aunt and had a child with her. He also was a good friend of Sanchez’s mother. Acerra did not disclose this relationship to the police department until December.
When Sanchez was shown the array with Ellis’s photo, she became upset because she said one of the eight was someone who had stalked her. That photo was then covered up and Sanchez again viewed the photographs. She pointed to someone other than Ellis and said she thought that could have been the person she saw crouching next to Mulligan’s vehicle.
Sanchez left the station but returned a few minutes later after she and her husband sat in Acerra’s car with Acerra and his partner, Walter Robinson. The two detectives escorted Sanchez back inside, and explained that she selected the wrong person because she was afraid and did not want to get involved. She viewed the array for a third time and immediately selected Ellis as the person crouching next to Mulligan’s vehicle.
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On October 18, 1993, Rosa Sanchez identified Ellis in a live lineup as the man she saw crouching next to Mulligan’s vehicle. Ellis was the only person who was in both the photo array and the live lineup. Ellis’s attorney would later note that a video of Ellis’s arrest had been repeatedly shown on local television news and his photograph had appeared in Boston newspapers."
Harold Levy: Publisher: The Charles Smith Blog.
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PASSAGE OF THE DAY: "“The Ellis family has suffered in this process as well," Rollins added. "Although their loved one is alive, he lost 22 years of his life. As Judge Robert Ullman found today, ‘Justice was not done’ in this case."
STORY: "Judge throws out remaining gun charge against Sean Ellis," published by 10 Boston on May 4, 2021.'
SUB-HEADING: "This whole case is very sad chapter in the history of the criminal justice system. Thankfully, this chapter seems to be nearing its conclusion," Superior Court Justice Robert Ultman said Tuesday.
GIST: "In a brief hearing, Superior Court Justice Robert Ullman allowed Sean Ellis' motion for a new trial on the gun conviction remaining on his record from his wrongful conviction for the 1993 murder of Boston Police Detective John Mulligan.
"This whole case is a very sad chapter in the history of the criminal justice system. Thankfully, this chapter seems to be nearing its conclusion," Ullman said.
Ellis' attorneys had filed a motion for a new trial on the gun charge in December. Suffolk District Attorney Rachael Rollins said her office will now file a nolle prosequi, ending prosecution of the case.
“Today marks the end of a long and troubling chapter in Boston’s history," Rollins said in a statement Tuesday. "The murder of Boston Police Detective John James Mulligan reverberated around our city and over the last few decades this case has had a complicated history. Corruption and deceit were exposed, as were complicity and willful indifference to constitutionally mandated protections. Through it all, the Mulligan family suffered. They asked for none of this. They knew and loved John, not as a BPD Detective, but as a brother, uncle, father, and son. Today brings no solace for them. Instead, it exposes old wounds that will now require even more time to heal."
“The Ellis family has suffered in this process as well," Rollins added. "Although their loved one is alive, he lost 22 years of his life. As Judge Robert Ullman found today, ‘Justice was not done’ in this case."
Ellis was found guilty in the 1993 killing of Mulligan, but a judge in 2015 ordered a new trial on the murder and armed robbery charges after finding authorities failed to disclose evidence of corruption among investigating officers. Prosecutors announced in 2018 that they would not retry Ellis, but the 1995 firearm convictions remained on his record.
His fight to prove his innocence was documented in the Netflix series "Trial 4"
Rosemary Scapicchio and Jillise McDonough, Ellis' attorneys, thanked both the judge and the district attorney in a statement Tuesday.
"It took 29 years to get here, but never once did we waver and justice prevailed," they said.""
The entire story can be read at:
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See National Registry of Exonerations entry by Maurice Possley at the link below:
| "At 3:49 a.m. on September 26, 1993, Steven Bannister, an employee of a Walgreens in the Roslindale section of Boston, Massachusetts, rushed into the store and yelled for the manager to call 911. Bannister had been outside on a break and found 52-year-old John Mulligan, a Boston Police detective working on a paid police detail providing security for the store, was sitting in the front seat of his sport utility vehicle with blood on his face. Mulligan had been shot five times in the face. His service weapon was missing. The passenger door was locked, but the driver’s side door was unlocked. A 65-member police task force was assembled to solve the crime. Among them were three narcotics detectives who worked in the same unit with Mulligan. Bannister said that when he left the store to get coffee at 3:30 a.m., Mulligan was reclining in the driver's seat of his vehicle and appeared to be fine. When Bannister returned, he saw the blood on Mulligan’s face and alerted his manager. Rosa Sanchez told police she and her husband came to the Walgreens just after 3:05 a.m. to buy soap. She said as she walked into the store, she saw a young black man crouching next to Mulligan’s SUV. She said that Mulligan was asleep in in the vehicle with the seat tilted back. Sanchez said that she left the store at 3:25 a.m. The man she had previously seen crouching near Mulligan’s vehicle was now standing at a pay telephone with another black man, she said......... Another woman, Evony Chung, arrived at the store at about the same time as Sanchez. She told police that she saw Mulligan sleeping in his vehicle and two black men walking toward the pay telephone. Victor Brown, who lived on a residential street next to the Walgreens, told police that he awoke at exactly 3:30 a.m. and heard the sound of a diesel engine. (After speaking to police the next day, Brown changed the time to 3:20 a.m.) Brown said he saw two men get out of a parked 1987 chocolate brown Volkswagen Rabbit with tinted windows and walk out of sight. Brown said he thought the men were abandoning a stolen car, so he walked outside. He said there was a woman in the back seat and when he inquired, she said she was fine. Brown said he went back into his house without noting the license plate number. A few minutes later, he heard car doors close. He said he looked out his window and saw the car leave with its headlights off. After a delivery driver reported seeing a brown Volkswagen with tinted windows carrying three people—two black men in front and a woman in the back seat—on the road where the Walgreens was located, police appealed to the public for help in finding the car. Joanne Samuel told police that she and her boyfriend went to the Walgreens to buy socks just before 3 a.m. They saw an officer parked in the fire lane outside. She recognized him as the one who typically worked security there. A white woman was sitting in the passenger seat, speaking to him in animated fashion. Samuel said she left the store about 10 minutes later and the woman was still in the vehicle. Mulligan’s vehicle was processed for fingerprints that day and 17 prints were lifted. Four of them, according to Sgt. Detective Robert Foilb, were left at the same time by the same hand. On September 29—six days after Mulligan’s murder—Celine Kirk and Tracy Brown were murdered in Brown's apartment in Boston. While police were investigating that crime, they found a photo identification card for 19-year-old Sean Ellis, who had just moved into Brown's apartment. Kirk, Brown, and Ellis were all cousins. Kirk was visting her sister that weekend. Detectives spoke with David Murray, who was the uncle of Ellis and the two murdered women. Murray said that Ellis told him that he believed an 18-year-old man named Craig Hood, an ex-boyfriend of Kirk, killed the women. That next day, detectives found a brown Volkswagen matching the description of the car seen near the Walgreens. There were no license plates on the car, and it had scratches and residue that detectives believed were evidence that window tint had been removed. Police traced the vehicle identification number to Mark Evans, who told police that 18-year-old Terry Patterson was the primary driver of the car. Because Ellis lived in the apartment where Kirk and Brown were murdered, detectives questioned him on September 30. Ellis said that on the night before Mulligan was murdered, he rode his bike to a gathering of friends on Hansborough Street in Dorchester. Just after 2 a.m., before he left the group, he spoke by telephone with Tracy Brown, who asked him to pick up disposable diapers on his way back to the apartment. He said Patterson agreed to drive him to the Walgreens, so he put down his bike. At the Roslindale mall where the Walgreens was located, Ellis said he and Patterson stopped by the pay phone and he called a friend, Harriet Griffith. He gave the detectives Patterson’s pager number and urged them to contact Patterson to confirm his account. Ellis said he purchased diapers at Walgreens and then went home. He told the police that they could find the diapers on Tracy's window sill. He denied any involvement in Mulligan’s murder and was released six hours later. The following day, police recovered the diapers along with the Walgreens receipt for the purchase showing the purchase was made at 3:01 a.m. on September 26, 1993. On October 3, Patterson and his attorney, Nancy Hurley, met with detectives. Patterson said he owned a maroon Volkswagen Rabbit with tinted windows. Patterson corroborated Ellis’s account of going to the Walgreens to buy diapers and using the pay phone. Patterson also said that after their errand, he drove to a dead-end side street and parked next to a footpath. He said their purpose was to smoke a “blunt,” a marijuana-filled cigar. He said he and Ellis left to urinate in the woods, which aligned with Victor Brown’s account of seeing the car that he initially thought was stolen. At the conclusion of the interview, a detective asked Patterson, “Were you the triggerman?” Patterson said, “No.” Detectives assembled two photographic arrays, each containing eight photographs. One contained Patterson’s photograph and the other contained Ellis’s photograph. On October 5, Rosa Sanchez and her husband, Ivan, went to the police homicide unit where she viewed the photo arrays under the supervision of Detectives Walter Robinson and Kenneth Acerra. Acerra not only knew Sanchez personally, he also lived with Sanchez’s aunt and had a child with her. He also was a good friend of Sanchez’s mother. Acerra did not disclose this relationship to the police department until December. When Sanchez was shown the array with Ellis’s photo, she became upset because she said one of the eight was someone who had stalked her. That photo was then covered up and Sanchez again viewed the photographs. She pointed to someone other than Ellis and said she thought that could have been the person she saw crouching next to Mulligan’s vehicle. Sanchez left the station but returned a few minutes later after she and her husband sat in Acerra’s car with Acerra and his partner, Walter Robinson. The two detectives escorted Sanchez back inside, and explained that she selected the wrong person because she was afraid and did not want to get involved. She viewed the array for a third time and immediately selected Ellis as the person crouching next to Mulligan’s vehicle. Detectives re-interviewed David Murray. Murray said that Ellis told him that when he came out of the Walgreens after buying the diapers, he discovered that Patterson had moved the car to just off American Legion highway near some bushes. Murray claimed that Ellis told him that Patterson came running up to him yelling at Ellis to get going and they ran across the parking lot to the waiting car. According to Murray, when Ellis Patterson got to the car, Patterson said, “I shot someone” and passed Ellis the two guns. On October 4, Patterson was arrested on charges of first-degree murder, armed robbery, and two counts of illegal possession of a firearm. Ellis was arrested in the same charges on October 6. Police believed that they acted together to steal Mulligan’s gun as a trophy and djuring the robbery, killed Mulligan. No triggerman was named. Also on October 6, Craig Hood was charged with the murder of Celine Kirk and Tracy Brown. He confessed he killed Kirk during an argument over a gold chain and then he fatally shot Brown when she entered the apartment right afterward. He subsequently pled guilty in exchange for a reduced sentence of 15 years for each murder to be served consecutively. The following day, police found Mulligan’s service revolver and a .25-caliber pearl-handled buried under leaves in a vacant lot near Ellis’s home. Ballistics testing indicated the .25 was the gun that killed Mulligan. On October 18, 1993, Rosa Sanchez identified Ellis in a live lineup as the man she saw crouching next to Mulligan’s vehicle. Ellis was the only person who was in both the photo array and the live lineup. Ellis’s attorney would later note that a video of Ellis’s arrest had been repeatedly shown on local television news and his photograph had appeared in Boston newspapers. Sanchez never identified Patterson. In late October, after Ellis and Patterson were arraigned, Patterson’s defense Hurley received a copy of an affidavit that had been submitted in support of a search warrant application. That affidavit recounted Patterson’s October 3 police interview and included an additional question and answer. The affidavit said that the final question was whether Ellis was the triggerman and that Patterson had nodded his head affirmatively. Hurley had been present for the interview and realized immediately that this statement in the affidavit was false. Hurley immediately notified the prosecutor and Ellis’s lawyer that the affidavit had been falsely altered to say that Patterson had implicated Ellis. As a result, Ellis and Patterson were granted separate trials. In January 1994, former Massachusetts State Senator Dianne Wilkerson sent a letter to Ellis’s attorneys, Norman Zalkind and David Duncan, reporting that she had received an anonymous telephone call from someone who claimed that Mulligan was shot by his girlfriend after she discovered he was seeing other women. The caller also said the .25-caliber pistol was Mulligan’s personal weapon that he kept in an ankle holster. The caller said he planned to go to the FBI. In December 1994, a hearing was held on a defense motion by Patterson’s lawyers seeking to bar Sanchez’s photographic identification of Ellis because of undue influence from Detective Acerra, particularly since he had a long time relationship with Sanchez’s relatives. During the hearing, when asked to identify the person she said was stalking her, Sanchez picked someone other than the person she had selected originally. The motion to bar Sanchez’s identification of Ellis was denied. On January 4, 1995, Ellis went to trial in Suffolk County Superior Court. The prosecution’s theory was that Ellis and Patterson came upon Mulligan, who was asleep, and decided to rob him of his weapon and kill him. They then drove to a nearby street, parked, and walked back to the mall to commit the crime. On January 21, after eight days of deliberation, the jury convicted Ellis of two counts of illegal possession of a firearm. However, a mistrial was declared on the first-degree murder and armed robbery charges when the jury was unable to reach a unanimous verdict. Immediately after, Patterson went to trial in Suffolk County Superior Court. The primary evidence against him was the fingerprint testimony. The fingerprint examiner said that the impressions taken from the door of Mulligan’s vehicle, consisting of four “simultaneous” impressions—made by four fingers from the same hand at the same time—were left by Patterson when he closed the door of the vehicle. During cross-examination, the fingerprint examiner acknowledged that his identification method using cumulative points of comparison from different fingers was not the standard method for fingerprint identification. The prosecution also presented evidence that the day after Mulligan’s murder, Patterson moved the car from its customary parking location to the home of Evans’s brother-in-law. When the police located the car a few days later, they found that its appearance had been altered and its license plate removed. A detective testified about the interview with Patterson. When questioned by the prosecution, the detective said that the final question was: “Are you the trigger man or is Sean?” The detective said Patterson responded by nodding his head, and that he had then stood up and rolled his eyes toward the ceiling. On cross-examination, the detective changed his testimony. He said he asked Patterson two separate questions: whether he was the triggerman, which he denied and then whether Ellis was the triggerman, to which he had nodded. Patterson’s trial lawyer did not testify as to her recollection of the contents of the interview, and Patterson did not testify. As a result, there was no evidence offered to refute the detective’s assertion that Patterson had identified Ellis as the gunman. On February 1, 1995, a jury convicted Patterson of first-degree murder, armed robbery, and illegal possession of a firearm. He was sentenced to life in prison. Ellis went to trial a second time on March 21, 1995. A second mistrial was declared on April 1, 1995 after the jury was unable to reach a unanimous verdict. Ellis went to trial a third time on September 6, 1995. Sanchez again identified Ellis as the man she saw crouching next to Mulligan’s vehicle. She said that she saw two men—one tall and thin, which fit Ellis’s description, and one shorter and heavier, which fit Patterson’s description. Although other witnesses, including Victor Brown, testified to seeing two black males near the Walgreens at the time of the murder, none was able to positively identify either Patterson or Ellis. The evidence that Patterson had been matched to the four prints on the door of Mulligan’s vehicle also was introduced. Sgt. Detective Foilb said that he had identified a fingerprint of Letia Walker, Ellis’s girlfriend, on the .25-caliber pistol that was the murder weapon. Under a grant of immunity from the prosecution, Walker testified that on September 30, 1993—four days after Mulligan’s murder—she went with Ellis to Tracy Brown’s apartment and he retrieved a bag with two guns, a .25-caliber pistol and a nine-millimeter Glock semi-automatic pistol. Walker said he said Ellis brought the guns to her house and subsequently their friend Curt Headen hid them in the vacant lot. Headen had been killed in front of his Dorchester home prior to the trial. On September 14, 1995, the jury convicted Ellis of first-degree murder and armed robbery. He was sentenced to life in prison. In February 1996, the Boston Police anti-corruption unit had begun investigating several detectives, including Detective Acerra and Detective Walter Robinson, for robbing drug dealers. The unit had received complaints of corruption that included allegations against Mulligan as well. In October 1997, a federal grand jury indicted Robinson and Acerra on numerous charges including the falsification of search warrants and theft of thousands of dollars from drug dealers dating back to 1990—three years before Mulligan was murdered. Robinson and Acerra later pled guilty and each was sentenced to three years in prison. Detective John Brazil was granted immunity in return for his testimony that he prepared false affidavits for search warrants, falsely claimed to have performed surveillance when he had not, and participated in robberies with Acerra and Robinson. In 1998, Ellis’s trial attorneys, Norman Zalkind and David Duncan, filed a motion for a new trial based on the disclosure of the corrupt activities of Acerra, Robinson and Brazil, all of whom had been involved in the investigation of Mulligan’s murder. The motion was denied without a hearing. In December 2000, the Supreme Judicial Court upheld the dismissal, holding that there was no proof that the detectives had falsified any evidence in the Mulligan investigation. That same month, the Supreme Judicial Court reversed Patterson’s convictions. The court held that Patterson was deprived of crucial evidence when his defense attorney failed to step aside and be called as a witness to rebut the police version of Patterson’s interrogation. Prior to a retrial, Patterson’s lawyers challenged the “simultaneous impression” fingerprint evidence as unreliable. The trial court denied the motion, but in 2005, the Supreme Judicial Court reversed and said the fingerprint evidence would not be allowed at the retrial. The court ruled as well that fingerprints collected and analyzed by this “unscientific and unreliable” method could not be used in the future in Massachusetts. In February 2006, Patterson pled guilty to manslaughter. He was released in 2007 after receiving credit for time served. In 2004, attorney Rosemary Scapicchio had taken over Ellis’s case and began submitting requests under the Freedom of Information Act to city, state and federal agencies seeking information about Mulligan as well as Acerra, Robinson and Brazil. In 2010, Scapicchio sought assistance from the Massachusetts Committee for Public Counsel Services Committee (CPCS)and its Wrongful Conviction Review fund. The case was accepted, and the CPCS provided funds for the investigation and public records requests. In March 2013, Scapicchio filed a second motion for a new trial alleging that the prosecution and police had failed to disclose to the defense evidence of other possible suspects. The motion also alleged that the state failed to disclose evidence, including FBI reports and federal grand jury testimony, showing that Mulligan was deeply involved in the corrupt activities of Robinson, Acerra, and Brazil. Further investigation ensued. At a hearing, evidence was presented that another police officer was responsible for the murder. Among the reports was a statement from Detective George Foley, a member of the Mulligan murder task force. Foley said that in August—prior to Mulligan’s murder—Ray Armstead, Jr., who was a corrections officer, confided in him that Armstead’s father was going to kill Mulligan. He said that Mulligan, who had a reputation for being attracted to young girls, would not leave Armstead Sr.’s 14-year-old daughter alone. Foley said Armstead Sr. knew Mulligan slept in his car while on duty at the Walgreens. He also said that Armstead Jr. told him, “You are going to read about [it] in the papers. Shot between the eyes at [Walgreens].” Police reports showed that Armstead Jr. had been questioned about the conversation with Foley, and that he denied it ever occurred or that he had a 14-year-old sister. (Attorney Scapicchio later discovered that Armstead Sr. had a 14-year-old foster daughter.) The prosecution said Foley’s report was not credible and noted that Foley later recanted, then insisted it was true, and ultimately was hospitalized for psychological treatment. Federal grand jury showed that showed that 17 days before Mulligan was murdered, he, along with Acerra and Robinson, stole $26,000 from a Boston drug dealer. In addition, the FBI had a report from an informant saying that Mulligan regularly shook down drug dealers, prostitutes, and pimps for money, blackmailed other police officers, and had committed murder. The defense also presented evidence of numerous tips made to a police hotline after Mulligan was killed. One of these tips implicated a man named Armstead. In May 2015, Judge Carol Ball granted the motion for a new trial. In a 67-page decision, the judge ruled that the newly discovered evidence showed that the police “failed to vigorously pursue other leads.” This failure, when combined with Acerra, Robinson and Brazil’s “conflict of interest,” formed the basis of a strong defense. The prosecution, the judge declared, was a “rush to judgment.” Judge Ball wrote that Acerra, Robinson, and Brazil were involved in “nearly every aspect of the homicide investigation,” and had a personal interest in solving the murder as quickly as possible to prevent other officers not involved in the corrupt activities from discovering what Mulligan and the others had been doing. Judge Ball did not vacate Ellis's gun convictions from the first trial. On June 3, 2015, Ellis was released on bond while the prosecution appealed Judge Ball’s ruling. In September 2016, the Supreme Judicial Court unanimously upheld Judge Ball’s ruling, paving the way for a fourth trial for Ellis. On December 17, 2018, interim Suffolk County District Attorney John Pappas said the prosecution would move to dismiss the murder and robbery charges against Ellis, saying that “the passage of more than two and a half decades has seriously compromised our ability to prove it again.” Pappas and Boston Police Commissioner William Gross, however, said they still believe Ellis was “culpable” for the crimes. On December 18, 2018, the motion was granted and the murder and robbery charges against Ellis were dismissed. The gun conviction remained. In December 2020, Suffolk County District Attorney Rachel Rollins said that the office would take another look at the case with an eye toward dismissal of the gun charge."" |
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
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FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they’ve exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
