COMMONWEALTH OF MASSACHUSETTS COMMONWEALTH OF MASSACHUSETTS SEAN ELLIS NOLLE PROSEQUI

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1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT DEPARTMENT NO COMMONWEALTH OF MASSACHUSETTS v. SEAN ELLIS NOLLE PROSEQUI Now comes the Commonwealth in the above-captioned matter and respectfully states that it will no longer prosecute the above-captioned indictment. As grounds therefor, the Commonwealth respectfully asserts the following: (1) On October 27, 1993, a Suffolk County Grand Jury returned the above-referenced indictment charging defendant Sean Ellis (hereinafter the defendant ) -- and a second indictment charging co-defendant Terry Patterson -- with first-degree murder, armed robbery and two counts of possession of a firearm for the September 26, 1993 shooting death of Boston Police Detective John Mulligan. (2) The defendants were tried separately. (3) At each trial, the Commonwealth presented evidence that on September 26, 1993, the defendant and co-defendant Patterson travelled together with the defendant s cousin Celine Kirk in co-defendant Patterson s motor vehicle to a Walgreens parking lot on American Legion Highway in the Roslindale section of the City of Boston. (4) Detective Mulligan was in his vehicle in uniform working a paid police detail in the parking lot. (5) A witness identified the defendant as crouching next to Mulligan s vehicle minutes before the murder and later observed the defendant standing next to a second male matching the description of co-defendant Patterson.

2 (6) Co-defendant Patterson s fingerprint was recovered from the driver s side window of Mulligan s vehicle. (7) The defendants and Kirk left the Walgreens parking lot and drove to a dead end street and parked. The defendants than walked from Patterson s car through a wooded pathway leading back to the Walgreens parking lot where Detective Mulligan was sleeping in his vehicle. (8) Shortly thereafter, Detective Mulligan was shot in the face and his service weapon was stolen. At the time of the robbery and murder, Detective Mulligan was asleep in his vehicle and in uniform. (9) There were no eyewitnesses to the murder. (10) On September 29, 1993, Kirk was shot to death in her apartment-an apartment where the defendant regularly stayed. The following day, the defendant removed a bag containing the murder weapon and Detective Mulligan s service weapon from Kirk s apartment and brought them to his girlfriend s home. (11) On October 7, 1993, police recovered Detective Mulligan s service weapon and the murder weapon from a field near the defendant s mother s home. Latent print examiners recovered the defendant s girlfriend s fingerprint from the magazine of the murder weapon. (12) The defendant admitted to investigators that he went to the Walgreen s parking lot shortly before the murder with co-defendant Patterson. In addition, the defendant admitted to family members and friends that he took the murder weapon and Detective Mulligan s service weapon from the scene of the crime although the defendant claimed that co-defendant Patterson admitted to the shooting and then handed the guns to him. (13) On September 14, 1995, after two mistrials, a jury convicted the defendant of first degree murder and armed robbery. The defendant had been previously convicted of two counts of possession of a firearm relating to the murder weapon and Detective Mulligan s service pistol which was stolen from his person during the robbery and murder. (14) McDaniel, J. sentenced the defendant to state prison for life without the possibility of parole. The Supreme Judicial Court affirmed the defendant s convictions on his direct appeal and affirmed the denial of his first motion for new trial. Commonwealth v. Ellis, 432 Mass. 746 (2000). (15) At a separate jury trial, a Suffolk County jury convicted the co-defendant Patterson of first degree murder, armed robbery and possession of a firearm. McDaniel, J. sentenced Patterson to state prison for life without the possibility of parole.

3 (16) For reasons unrelated to the defendant s direct appeal and his subsequent new trial motions, the Supreme Judicial Court reversed the convictions against codefendant Patterson and ordered a new trial. Commonwealth v. Patterson, 432 Mass. 767 (2000). (17) On February 7, 2006, co-defendant Patterson pleaded guilty to a lesser included offense of manslaughter, armed robbery and weapons charges. Hinkle, J. sentenced Patterson to a term of twenty-five to thirty years in state prison, twentytwo years to serve and the balance suspended for three years. Patterson was released in May 2006 after serving approximately thirteen years in custody. (18) On May 5, 2015, after an evidentiary hearing, a motion judge allowed the defendant s second motion for new trial. On May 12, 2015, the motion judge allowed the defendant s motion for bail and the defendant was released shortly thereafter. (19) The defendant spent twenty-one years and seven months in custody on this case. (20) On September 9, 2016, the Supreme Judicial Court affirmed the decision of the motion judge to grant the defendant a new trial. (21) The defendant s convictions for possession of the murder weapon and possession of Detective Mulligan s firearm the weapon taken from Detective Mulligan during the robbery and murder were not disturbed. (22) In 1998, former Boston Police detectives Kenneth Acerra and Walter Robinson pleaded guilty in the United States District Court (D.Mass) to a fourteen-count indictment alleging a wide ranging corruption scheme. Former Boston Police detective John Brazil was also implicated in the scheme and testified pursuant to a grant of immunity against former detectives Acerra and Robinson before a federal grand jury. (23) The indictments alleged that on multiple occasions, former detectives Acerra, Robinson, and Brazil submitted false search warrant applications and affidavits in other cases and illegally seiz[ed] property and money while executing those fraudulent warrants... Commonwealth v. Ellis, 475 Mass. 459, (2016). (24) Former detectives Acerra, Robinson, and Brazil s corrupt activities were not known to the Suffolk County District Attorney s Office or to the principal Boston Police detectives involved in the investigation of the murder of Detective Mulligan until after the defendants convictions. Consequently, evidence of former detectives Acerra, Robinson, and Brazil s corruption was not before the jury in any of the trials leading up to the defendant s conviction.

4 (25) Former detectives Acerra, Robinson and Brazil all had substantial roles in the investigation of Detective Mulligan s murder. Significantly, former detectives Acerra and Robinson interviewed the sole witness who identified the defendant as the man crouching at Detective Mulligan s vehicle minutes before the murder. (26) Over the past five years, the Commonwealth has engaged in a comprehensive review of the trial evidence and the documents produced during the litigation into the defendant s ultimately successful new trial motion. The review included a detailed examination of documents related to the federal investigation into the Robinson/Acerra/Brazil corruption scheme, Boston Police Anti-Corruption investigative files related to Detective Mulligan, Boston Police Anti-Corruption investigative files related to former detectives Robinson, Acerra and Brazil, and other cases involving Detective Robinson. (27) The Commonwealth s review of the documents related to the corrupt activities of former detectives Acerra, Robinson and Brazil as well as the Boston Police Internal Affairs and Anti-Corruption files related to Detective Mulligan supports the Commonwealth s position at the motion for new trial, namely, that Detective Mulligan was not a knowing participant in Acerra, Robinson and Brazil s corruption. (28) The Commonwealth has considered the evidence of the Acerra/ Robinson/ Brazil corruption scheme in light of the fact that (1) the defendant possessed the murder weapon; (2) the defendant possessed Detective Mulligan s stolen service weapon; (3) the defendant admitted to police investigators that he went to the scene with Patterson whose car was identified fleeing the area after the murder and whose fingerprint was recovered from Detective Mulligan s vehicle, (5) and the absence of evidence, by affidavit or otherwise, suggesting that the subject detectives [Acerra, Robins and Brazil] procured false evidence in connection with the investigation of this defendant. Commonwealth v. Ellis, 432 Mass. 746, 765 (2000). While the evidence of their misconduct in other cases is deeply troubling, that evidence does not undermine the logical and inescapable conclusion that the defendant was present at the scene of the murder at or about the time of the murder, and at the very least participated in the cover-up of the murder. (29) Nonetheless, based upon the Supreme Judicial Court s 2016 opinion, testimony detailing allegations of police misconduct by Acerra, Robinson and Brazil whether substantiated or not will be admissible as Bowden evidence and evidence of bias. (30) In 2018, the Commonwealth re-interviewed civilian trial witnesses who testified specifically to the defendant s and co-defendant Patterson s activities in and around the murder scene shortly before and shortly after the robbery and murder of Detective Mulligan. Some of those witnesses have indicated that either they will not testify voluntarily at trial, have lapses in memory relating to the details of their observations in the parking lot, or both.

5 (31) While the testimony of those witnesses is not necessary to prove that the defendant was at the scene at or about the time of the killing and was involved in the killing in some fashion(,) see Ellis, 475 Mass. at 477, their testimony is critical to proving beyond a reasonable doubt that the defendant was either the shooter or knowingly participated with Patterson in the shooting. Id. (32) The Commonwealth has considered a number of facts including (1) the likely admissibility of the details of former detectives Acerra, Robinson and Brazil s corruption, (2) the fact that former detectives Acerra and Robinson were primarily responsible for securing the testimony of the witnesses who provided information relating to the actions of the defendant and Patterson near the crime scene prior to the robbery and murder of Detective Mulligan, (3) the reluctance of those same witnesses to testify at a fourth trial, (4) and the inability of those witnesses to recollect certain key details of their observations from more than twenty-five years ago. Consequently, the Commonwealth s ability to prove beyond a reasonable doubt that the defendant knowingly participated in the murder and armed robbery of Detective Mulligan and shared with co-defendant Patterson the intent required for those crimes, See Commonwealth v. Zanetti, 454 Mass, 449, 470 (2009), is significantly impaired. (33) The Commonwealth has reached this conclusion after a thorough and comprehensive review of the case. (34) The defendant was nineteen years old at the time he committed these crimes and served nearly twenty-two years in custody on this case. His time in custody exceeds that of the co-defendant by nearly a decade. (35) In view of the numerous legal and practical considerations set forth above, the filing of this nolle prosequi by the Commonwealth is appropriate.

6 Respectfully submitted For the Commonwealth, JOHN P. PAPPAS District Attorney By: EDMOND J. ZABIN Assistant District Attorney Chief Homicide Unit One Bulfinch Place Boston, MA (617) Dated: