Published in 2021 Massachusetts Super Lawyers magazine
By Nick DiUlio on October 12, 2021
In the fall of 2004, Rosemary Scapicchio took on the case of Sean Ellis, who’d spent more than a decade behind bars after being convicted of murdering Boston police detective John Mulligan in 1993. The verdict came after two mistrials. Scapicchio’s mission: get Ellis back in court for a fourth, final, and fair trial.
“How do you get a judge’s attention when it comes to a cop killing? You don’t see this in the textbooks, but you know as an attorney this is a big problem for you as the defense,” says Scapicchio, who’s built a reputation for fearless advocacy for clients from poor, marginalized communities charged with homicide and other serious crimes. “Getting any conviction overturned is hard, but when the victim is a police officer, you know you’re going to be fighting an uphill battle from the beginning.”
The Ellis case recently drew national attention thanks to the 2020 Netflix docuseries Trial 4. And while the series contains many riveting moments, Scapicchio’s work on the case can be measured by hours in the courtroom, months spent in discovery and trial prep, and the years spent making sure justice was served.
“What you don’t see in the documentary is how Rosemary is constantly pushing and pushing and pushing. She’s not just sitting back and waiting. She’s definitely patient, but she also doesn’t ever let up,” says Amy Codagnone, a Boston attorney who once worked at Scapicchio’s firm. “It’s a combination of patience and tenacity.”
From the outset, Scapicchio was convinced Ellis’ first three trials were grossly unfair. Mulligan, she suspected, was involved with a handful of corrupt Boston officers, including detectives Kenneth Acerra, Walter Robinson and John Brazil, who worked on the investigation into Mulligan’s killing. They had gone on to make a plea agreement in 1998 in response to a 27-count indictment that included stealing more than $200,000 and taking bribes in exchange for lenient sentence recommendations.
Scapicchio believed these surviving officers wanted Mulligan’s case closed as quickly as possible, lest anyone discover what they were up to. In Ellis—a young, poor Black man—they found an easy target. And so the work began.
She filed a Freedom of Information Act request for all records and Internal Affairs files related to Mulligan, Acerra, Robinson and Brazil. After several months with no response, she appealed to the supervisor of Public Records, and six months later the Boston PD requested $3,500 to produce the documents. Scapicchio paid them and also sent records requests to the Boston Police Department’s Crime Lab Unit, the Suffolk County DA’s office, the DEA, and the FBI.
She never received internal affairs files from the police, but did eventually get incomplete documents from the feds. She requested the missing files and was told a year later that the files were from the Boston PD’s Anti-Corruption Unit and weren’t authorized for release unless she had a court order. That led to a civil lawsuit against the Boston PD.
It was now 2012. Scapicchio had been working on Ellis’ case for eight years. Her client had been incarcerated for 19.
“A dog with a bone is never letting go,” says Scapicchio. “The constant delays and non-responses from the FOIA requests were baffling. But the more they tried to hide and dodge us, the more I knew there was something to find. And every day they kicked the can down the road, Sean was stuck in a cage for a crime he didn’t commit. … My biggest concern in that time was that Sean would lose hope. It’s such a long time to wait for something in your own case. His life wasn’t moving at all. He was stuck in his cell.”
Among the details Scapicchio eventually discovered: Boston police had received more than 200 tips that were simply set aside and never turned over to the Commonwealth or Ellis’ former defense attorneys. She discovered the police department’s Anti-Corruption Unit wanted to indict Mulligan for abusing the department’s overtime system in 1992, but the case was moved to Internal Affairs and he wasn’t charged. She discovered the FBI had been looking into Mulligan for crimes like extortion. Finally, federal investigation documents revealed that Mulligan conspired with Robinson and Acerra in the robbery of a Boston marijuana dealer just 17 days before the detective’s murder.
At an evidentiary hearing, Scapicchio was able to directly examine police officers and make the connection between Mulligan and the corruption, convincing Judge Carol Ball that Ellis deserved a new trial. “That was a game changer,” says Scapicchio.
Says Jillise McDonough, an attorney at Scapicchio’s firm who also worked on the Ellis case: “Rose did a great job showing Mulligan was just as corrupt as the other cops—who literally had their hands in every single aspect of the murder investigation. They were the first to speak to the key witnesses. The first to supposedly discovery the firearms. All of it.”
It took 12 years to get the documents she needed to move forward with that evidentiary hearing. For Scapicchio, it was nothing new.
“So many of Rosemary’s cases are complicated matters that span years of work,” says Patrick Troy, a Boston defense attorney who’s worked with Scapicchio on several cases over the past two decades. “Her appellate matters, particularly, often involve epic battles with the prosecution related to Rosemary’s fundamental requests to timely receive complete discovery for trial preparation. Her unyielding pursuit of justice in appellate cases, including wrongful convictions, is without parallel. She never gives up on her clients in their pursuit of justice and has done so her entire career.”
While Scapicchio was gearing up for the fourth trial, the district attorney’s office dismissed the case—“without even notifying us,” she adds—officially making Ellis a free man in 2015.
“Trying murder cases is one of the most challenging things you can do as a defense attorney,” she says. “You literally hold your client’s life in your hands. You can’t make any promises, but you can fight like hell to make sure that client gets the fairest trial possible.”
Raised by her mother in the Faneuil Projects in Brighton, Scapicchio was the middle child of seven. She began working at 12 to save money for tuition at what was then Mount Saint Joseph Academy, where she was expected to bring home nothing but As.
“Growing up in the projects was difficult,” recalls Scapicchio. “I also got to see a lot of injustices with the way police treated kids from the projects. We were always the first suspects. You saw the way these kids were treated and it was completely unfair. That’s what sparked my interest in becoming an attorney.”
After graduating from Suffolk University in 1986, Scapicchio eventually enrolled in the university’s law school. During her first year she began working for Frank Kelleher, who introduced her to criminal defense and mentored her through the process of arguing first- and second-degree murder cases.
“I got hooked so quicky on the cases and clients Frank was dealing with,” says Scapicchio. “I started to meet the families of people who’d been incarcerated. I started hearing their stories of how they got to where they were. It struck something in me, and I knew this was what I wanted to do.”
She also spent every possible moment observing Boston legal legends Earle Cooley and Richard Egbert in the courtroom, noting their commanding presence and ability to move jurors to tears. Early in her career Scapicchio had the opportunity to work on a case with Cooley. She recalls one afternoon working on her closing argument and writing it the way she imagined Cooley would.
“We sat in his Boston office and he said, ‘Rose, if you don’t know your case better than anyone in the courtroom, by the time you make closing arguments no one will believe you. Put away the pen and paper and talk from what’s in your head,’” she recalls.
To this day, that’s how she operates: speaking from what she knows, what she believes, and what she’s passionate about.
“When Rosemary gets into a courtroom, she owns it. All eyes are on her,” says Troy. “She can surgically dismantle witnesses, particularly police officers. And she breaks down the exact issues in a way jurors can understand and relate to.”
Since starting her eponymous firm in 1991, Scapicchio has gone on to win dozens of not-guilty verdicts for clients who otherwise might not have had a chance.
“We have to fight harder, be better, and make sure our voice is heard,” she says. “We’re up against a giant that has more resources than us. I have to know where the weaknesses are in a case and figure out a way to expose them.”
Consider the case of Shawn Drumgold.
In 1989, Drumgold was convicted of killing 12-year-old Darlene Tiffany Moore in a crossfire shootout between rival gangs. Drumgold’s mother came to Scapicchio less than a year after she started her firm.
“She begged me, but I turned it down because I didn’t think I was experienced enough. But she was relentless,” recalls Scapicchio. “She insisted her son wanted me on the case. So eventually I agreed to meet with him.”
After a lengthy conversation and a review of court transcripts, Scapicchio started spotting weaknesses. She was in. “I knew Shawn was innocent,” she says.
For years, Scapicchio tried to track down Ricky Evans, an eyewitness central to the prosecution’s case. When she eventually found him, Evans admitted the Boston police paid him to falsely testify that he’d seen Drumgold commit the crime. After Scapicchio secured Evans’ testimony, other witnesses came forward with similar stories of coercion, and the Commonwealth’s case against Drumgold quickly fell apart. In 2003, Drumgold was finally freed from prison after nearly 15 years. Scapicchio went on to sue the Boston Police Department on behalf of Drumgold, who was awarded $14 million by a jury in 2014. He later settled for $5 million.
“One of the things I’ve found is that there’s almost this implicit bias that exists in police investigations,” she says. “They don’t always follow evidence. They get a sense of who did it and tend to focus their investigation on that person to the exclusion of everyone else. That’s problematic. If you don’t follow up on all the evidence, that’s how wrongful convictions happen.”
In 2005, Scapicchio had the opportunity to argue before the U.S. Supreme Court in United States v. Fanfan, successfully persuading the justices that mandatory federal sentencing guidelines for federal defendants are unconstitutional.
“Arguing before the Supreme Court is, of course, every litigator’s dream,” says Scapicchio. “But to also have an impact on federal sentencing guidelines was huge.”
Scapicchio’s representation of Ellis didn’t end when his murder conviction was overturned. His record still showed a gun conviction related to the Mulligan case. Finally, on May 4, 2021, Superior Court Associate Justice Robert Ullman threw out the charge and Suffolk District Attorney Rachael Rollins said her office would end its prosecution of the case.
“This was the last nail in Sean’s coffin that finally came free,” says Scapicchio.
Still, the nails remain for dozens more clients.
“I want to give them a second chance in life,” says Scapicchio. “They might be able to get to my client, but they have to go through me.”
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