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Resisting the Suppression of Science

Resisting the Suppression of Science
Lisa Rosenbaum, M.D.
March 1, 2017   DOI: 10.1056/NEJMp1702362

All doctors encounter patients who express preferences for non–evidence-based therapies — organic food for coronary disease or detox cleanses for cancer, for example. Personally, I’ve never come up with an effective response. I offer facts, and then, sensing that I’m getting nowhere, I offer more facts. I blink rapidly to avoid rolling my eyes. Eventually, I resort to the “I statements” taught in medical school: “I understand that’s what you believe,” though my body language surely gives me away. Not surprisingly, I haven’t had much success in overcoming disbelief of science. And though many physicians may approach this challenge more skillfully one on one, as a scientific community, we often seem trapped in a similar dynamic. Whether it’s the science of vaccines, climate change, or gun control, we tend to endlessly emphasize the related evidence, and when that fails, exude a collective sense of disgust.
Now, a U.S. administration that has demonstrated dogged disregard for truth has raised concern not only that the clash between science and belief will intensify, but also that science might be frankly suppressed. President Donald Trump has called climate change a “hoax,” voiced skepticism about vaccines, and appointed as head of the Environmental Protection Agency a man who has fought against its mission. Members of one federal agency were allegedly asked to reveal their views on climate science, and other federal scientists reportedly face gag orders forbidding them to attend scientific conferences or communicate their findings. The Centers for Disease Control and Prevention (CDC) recently postponed a planned Climate and Health Summit, though that move may have been cautionary, meant to assuage an administration on which the agency relies for its funding.
In the face of suppression of science, should scientists resist, or quietly proceed with their work? Resistance seems essential. That the CDC postponement prompted a coalition to form and organize an alternative meeting (see article by Hunter et al.) reminds us that resistance is as much about ensuring effective dissemination of findings as about continuing to conduct science. But it’s critical to recognize that suppressing science does not cause disbelief; rather, disbelief, particularly of science pertaining to highly politicized topics such as climate change, creates a cultural environment in which suppression of science is tolerated. So the real question is how do we resist effectively? How do we convince a skeptical public to believe in science?
First, we need to stop assuming that disbelief necessarily reflects a knowledge deficit and can thus be remedied by facts. When doubt is wrapped up in one’s cultural identity or powerful emotions, facts often not only fail to persuade, but may further entrench skepticism.1 This phenomenon, often referred to as “biased assimilation,” has been demonstrated across a range of issues, from the death penalty to climate change to vaccines.2 One study found that parents hesitant about vaccinating their children became even less inclined to vaccinate when given information debunking the myth that vaccines cause autism.3 Somewhat counterintuitively, this tendency does not reflect lack of intelligence; in fact, when it comes to climate science, people who demonstrate higher levels of science comprehension are actually also the most adept at dismissing evidence that challenges their beliefs.1 Moreover, the propensity to dismiss evidence that threatens our identity or beliefs is nonpartisan: liberals, for instance, are far more likely than conservatives to dismiss science suggesting that genetically modified foods are safe. Even within the medical community, whether we’re debating mammography screening, statins, or the credibility of a drug-company–sponsored study, our ideologies affect our assimilation of data.
Second, in this highly polarized moment, we have to be careful not to inadvertently politicize science that has not already been pegged to a particular worldview. Dan Kahan, an expert on the way emotion and identity affect our interpretation of scientific facts, recently coauthored a study assessing how “culturally antagonistic memes” affected people’s ability to process information about an ostensibly neutral scientific issue: Zika virus.4 Because stories have circulated suggesting that Zika was caused either by global warming or by immigration, both highly charged topics, the researchers assessed how exposure to such stories affected subjects’ perceptions of the Zika threat. Those whose worldviews are associated with suspicion of climate science became more skeptical of the Zika threat when it was purported to be caused by global warming, and those whose worldviews tend to favor globalism and open borders perceived lower risk from Zika virus when its emergence was tied to immigration.
This risk of adding an identity-laden valence to otherwise neutral scientific matters makes resisting science denialism in the Trump era particularly tricky. Because we pay far more attention to contested than to generally accepted science, it’s easy to forget that most scientific facts, and related policies, don’t induce tribalism.1 You don’t see partisan battles over treatment for myocardial infarction, say, or the dangers of radiation exposure. But as Kahan points out, Trump thrives on making nonpartisan issues polarizing. The indication that he might appoint a vaccine skeptic to head a commission to review vaccine safety is a worrisome example, since vaccine skepticism has thus far been limited to a minority, albeit vocal, fringe. “I have never seen someone so aggressively intent on just increasing the number of issues that feature that sort of antagonism,” Kahan told me. “He is our science communication environment polluter in chief.”
Such polluters cunningly incite cultural battles that ultimately heighten distrust of science. Their strategies exploit a fundamental aspect of human nature: forced to choose between “recognizing what is known to science” and maintaining our group identity, most of us choose the latter.1
This constant quest for identity preservation helps explain why calling vaccine skeptics idiotic or dangerous is, as others have pointed out, likely to backfire, particularly as we face a cultural backlash against academic “elites.” It’s also why, when Trump issues an antiscience provocation over a nonpartisan subject, we should avoid being so strident in correcting misinformation that we further galvanize skepticism based on political identity alone. Even with already-polarizing topics, more measured resistance may be the most effective approach. To that end, circumspect resistance like the rallying of a coalition to relatively quietly reorganize the postponed climate-science meeting may end up being the most effective in these divisive times.
But measured resistance may feel unsatisfyingly hard to define. Given the many variables involved in any one threat to science — including the perceived identities at stake and the way the threat is executed — it’s hard to generalize about what the “right” response entails. With climate change, for instance, if our goal is environmentally protective federal legislation, maybe massive public protests like the Women’s March are necessary to generate the political will. Or maybe, as the behavioral economist Cass Sunstein has suggested, the best remedy for disbelief anchored in tribal allegiances is the identification of “surprising validators” — people willing to advocate for science who are trusted by any given group because of their shared identity.2 One recent example is a group of prominent conservatives who published a proposed policy for slowing global warming.5 But the reality is that we know far more about the challenges to communicating science than about how we might overcome them.
Yet perhaps there is a silver lining in the unmooring of many Americans by the widespread embrace of “alternative facts”: scientists are not alone in their determination to make the truth believable again. As a medical community, we have long approached the communication of science unscientifically. We are taught in medical school to make eye contact, nod our heads, and demonstrate cultural competence. But if the purpose of communication is to translate science into public policy that can improve the health of our population, then we ought to focus as well — and urgently — on empirically and effectively navigating assaults on truth.

Equality, is it just a catch phrase?

We American’s become indignant when we are accused of treating others unequally. Yet, as the current political regime demonstrates its power, we come to realize that we fear the others. It’s not a rational fear we haven’t had a foreign-born attack since 2001. But we fear those who are not like us, and us could be any ethnicity or race as long as they aren’t white and Christian. It remains a mystery to me why the most powerful nation on earth, which has not been attacked in over a decade would fall for a fear campaign like the Trump farcical demonstration of ignorance. Fear condones activity which is irrational and costly. We are alienating entire cultures and undercutting our nation’s wealth to mount a massive defense build-up which is both not needed and most assuredly contribute to another arms race. American’s, we are more intelligent than this, we need to apply rational thinking to the current situation and prevail with intelligence not brute strength.
And now, Trump distracts the nation by his bullshit about  NFL Blacks protesting their brothers’ being murdered by police. Anything he can do to distract the media and thus the public.  Do not be fooled by his rhetoric we don’t need division. We all need to unite and stand together about Putin’s intrusion in our electoral process.

Free Speech Has Never Been Free, by Jazmine Filson

Introduction

The ideal of free speech has never been free. Since the ratification of the First Amendment guaranteeing our right to freedom of expression, there have been challenges to its application. Today’s generation termed, Generation Z, is transforming education from content to process driven, from knowledge input, to analysis and implementation. Due primarily to the expanded public forum of social media (Education – Generation Z. 2013). Therefore, public high school students require the full plethora of free speech benefits to learn and foster meaningful rhetorical education. Students today are tomorrows’ leaders, to hinder student speech is to stifle social and political knowledge. Change is necessary, look at the events at Dixie State University where that the majority of college students accepted the infringement of their right to dissent. The marketplace of ideas requires students to have a full airing of all opinions.

High school students throughout the public sector do not possess unlimited First Amendment rights (Hudson, D. L., Jr. 2002). As the Supreme Court has said, minors do not possess the same level of constitutional rights as adults. Since the tragedy at Columbine High School in Littleton, Colorado in April of 1999, student expression has been increasingly stultified. Public dissent was stifled at Richland High School when the school principal publically reprimanded senior Rebecca Young in August 2015, for wearing a shirt that read “Some People Are Gay, Get Over It” (Esseks, J. 2015). The school principal prohibited any clothing expressing support for the Lesbian, Gay, Bisexual & Transsexual (LGBT) community. Subsequently, a federal court injunction was awarded permitting Rebecca Young the free speech right to express her political views (Young v. Giles County. Bd. of Educ., 2015).  In Christiansburg, Virginia, at the Christiansburg High School (CHS),17 high school students were given out-of-school suspensions for failing to remove Confederate flag attire that school officials deemed were offensive. According to Houston Miller, a senior at CHS, “We just wanted to get our point across that nobody here is racist. Moreover, we’re trying to get that in our school. They banned one flag so we think they should ban all.” The danger of this type of suppression lies in the doctrine of prior restraint. Prior restraint doctrine ascribes to the idea that an individual would feel constrained from freely expressing themselves due to the social or legal restrictions imposed on others. Therefore, other students would feel constrained from expressing their views and opinions. Supreme Court Justice John Marshall eloquently opined, “Above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” (Stevens, J. (1992-1993).

College students are not exempt to speech suppression either. At Dixie State University, three students were prohibited from distributing a flyer which criticized former President George W. Bush, President Barack Obama, and Cuban revolutionary Che Guevara, because they disparaged individuals in violation of university policy. Highlighted on John Stossel’s, television special “Censorship in America,” the students sued in the Utah U.S. District Court and prevailed with a stipulated agreement. The University agreed to revise its policies permanently. Most college students have reached the age of majority and receive the full scope of First Amendment rights. They are deemed of age and capable of fighting wars; college students must be able to exercise sufficient maturity and judgment to formulate independent opinions. However, citizenship requires responsible speech and actions of all of us. Every right and benefit bestowed, upon society comes with responsibilities, and malicious speech can have devastating effects.

The research definition for bullying victimization is “unwanted, intentional, aggressive behavior among school-aged children that involves a real or perceived power imbalance that is often repeated over time or has the probability of occurring again” (Espelage, D. L. 2014). In the article, It’s Not Just Teasing, (Saltzman, A. 1993, at 73.) a six-year-old, child was subjected to lewd, obscene, and profane harassment by her fellow students on her school bus which resulted in creating psychological and emotional suffering. The consequences were dire for 17-year-old Michael J. Berry, who had been subjected to cyber-bullying and sexual harassment before he committed suicide on September 16, 2008, at Mira Loma High School, in Carmichael, California (Jani, S. 2015). These are just two of many harms caused by a peer-to-peer speech in its various forms. Harassing and hate speech prohibitions are a necessary component of the regulatory structure of public schools. School administrators face a challenge regarding speech; speech restrictions which are guided by a trio of Supreme Court cases with which officials must comply such as (1) vulgar, lewd, obscene, and plainly offensive speech, (2) school-sponsored speech, and (3) speech that falls into neither of these categories. The standard for reviewing the suppression of vulgar, lewd, obscene, and plainly offensive speech is governed by, Bethel School District v. Fraser, 1986, school-sponsored speech by, Hazelwood School. District. v. Kuhlmeier, 1988, and all other speech by, Tinker v. Des Moines Independent Community School District, 1969. The Supreme Court has yet to review a case specifically regarding non-threatening harassment prohibitions in public schools.

The correlation between freedom of expression and progress is explicit. Historically, science was considered blasphemy by the public. Moreover, without science life would not exist as we know it today. All terms of expression must be tolerated in the public forum. While order in public schools is necessary to accommodate an efficient learning environment, the risk of suppression of thoughts and ideas does not justify the restrictions. Schools must permit any form of speech presented in an orderly manner and debate the idea or concept presented. In this manner, deplorable or specious expressions will be exposed. The presentation of all ideas will foster education and without free-speech, women would not be able to vote, racial, and sexual minorities would remain suppressed, and society would be poorer for it. A society open to challenging opinions will gain tolerance and greater liberty. The marketplace of ideas requires students to have a full airing of all opinions.

 

 

 

References

Bethel School District No 403 v. Fraser, 478 U.S. 675, 106 S … (n.d.). Retrieved from http://miketullylaw.com/library/SCOTUS/Bethel_Fraser.pdfCenters for Disease Control and Prevention (June 15, 2012).

Education – Generation Z. (2013, November 17). Retrieved January 27, 2016, from http://generationz.com.au/education/

Esseks, J. (2015, September 23). Censored: Retrieved January 20, 2016, from https://www.aclu.org/blog/speak-freely/censored-some-people-are-gay-get-over-it

FREEDOM OF SPEECH, PRESS, PETITION & ASSEMBLY – Free Republic. (n.d.). Retrieved from http://www.freerepublic.com/focus/fr/591395/posts

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592, 1988 U.S. LEXIS 310, 56 U.S.L.W. 4079, 14 Media L. Rep. 2081 (U.S. 1988)

Hudson, D. L., Jr. (2002, September 28). First Amendment Center. Retrieved January 26, 2016, from http://www.firstamendmentcenter.org/k-12-public-school-student-expression-overview

Jani, S., MD. (n.d.). Join our efforts to support. Retrieved January 26, 2016, from http://www.bravesociety.org/

K-12 public school student expression overview | First … (n.d.). Retrieved from http://www.firstamendmentcenter.org/k-12-public-school-student-expression-overvi

Saltzman, A. (1993, December 6). Its Not Just Teasing [Editorial]. US News and World Report, 73-77. Retrieved January 26, 2016.

Sexual Violence. Retrieved July 14, 2013, from Espelage, D. L. 2014). Using NCES Surveys to Understand School Violence and Bullying, 9-10. Retrieved January 26, 2016, http://www.cdc.gov/ViolencePrevention/sexualviolence/.

Stevens, J. (1992-1993). Freedom of Speech, The. Yale Law Journal 102(6), 1293-1314.

Stossel, J. (Director). (2015). Censorship in America [Motion picture on Television]. United States: Fox News.

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731, 1969 U.S. LEXIS 2443, 49 Ohio Op. 2d 222 (U.S. 1969)

VICTORY: Lawsuit Settlement Restores Free Speech Rights at … (n.d.). Retrieved from https://www.thefire.org/victory-lawsuit-settlement-restores-free-speech-rights-a

 

More on Social Media Law

Facebook and other social media are being subjected to new aspects of law. It is not enough to restrict the audience of posts to private or limited to friends only. If you post anything on social media you lose the privacy protections of that information. This most recent case, Ms. Nucci posted activities of her life after her accident, showing her quality of life. Those activities diminished her claims.

On January 7, 2015, in Nucci v. Target Corp, et al, the District Court of Appeal of the State of Florida, Fourth District upheld a lower court’s order compelling Plaintiff Maria Nucci to produce photographs originally posted to her Facebook page. No. 4D14-138, 2015 WL 71726, — So. 3d — (Fla. Dist. Ct. App. Jan. 7, 2015). The Court held there is little, if any, right to privacy in photos posted on Facebook or other similar social networking sites. In this case, Plaintiff asserted personal injuries resulting when she slipped and fell on a foreign substance in a Target store. Specifically at issue on appeal were more than 30 photos Plaintiff posted on Facebook and then removed shortly after the photographs were discussed during her deposition.

Plaintiff objected to Target’s written request to produce the photos, asserting that her use of Facebook privacy settings created a right to privacy, and further that the Federal Stored Communications Act (“FSCA”) prohibited disclosure of her Facebook photos. The Court balanced Plaintiff’s purported right to privacy against the relevance of the photos to her damages claim. While the Court recognized that Florida’s Constitution provides a broader right to privacy than the U.S. Constitution, it nonetheless held that photos posted on social networking sites are neither privileged nor protected by any privacy rights, despite the use of privacy settings.

This ruling echoes similar recent decisions across the country. In Tompkins v. Detroit Metro. Airport, the United States District Court for the Eastern District of Michigan held that “material posted on a ‘private’ Facebook page, which is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy.”[1] The New York Court of Appeals reached a similar result holding that “postings on plaintiff’s online Facebook account, if relevant, are not shielded from discovery merely because plaintiff used the service’s privacy settings to restrict access.”[2] Likewise, the United States District Court for the Central District of California noted that content posted to social networking sites is not privileged or protected, and requests for such information therefore need only be reasonably calculated to lead to admissible evidence.[3] Indeed, in Nucci, the Florida Appellate Court recognized that discovery requests should be reasonably tailored to lead to discovery of admissible evidence, and acknowledged that Target’s requests met that standard.

The Court gave short shrift to Plaintiff’s privacy claim pursuant to the FSCA. It held that while the FSCA prohibits providers of communication services from divulging user’s private communications, it does not apply to the individual users themselves. The Court also rejected Plaintiff’s relevance objections, holding that when personal injuries and quality of life are at issue, photos posted on social media websites “are the equivalent of a ‘day in the life’ slide show produced by the plaintiff before the existence of any motive to manipulate reality” and are therefore “powerfully relevant to the damage issue.”

 

Notes:

[1] 278 F.R.D. 387, 388 (E.D. Mich. 2012).

[2] Patterson v. Turner Constr. Co., 931 N.Y.S. 2d 311, 312 (N.Y. App. 2011).

[3] Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566, 570 (C.D. Cal. 2012).

“Our resources are misspent, our punishments too severe, our sentences too long.” Justice Kennedy

While we continue to support Sean Ellis, a victim of police corruption and prosecutorial misconduct. His mis-imprisonment represents a much larger endemic societal problems. In a recent study from Harvard “The Impact of Jury Race in Criminal Trials” The Quarterly Journal of Economics (2012) 127 (2): 1017-1055. doi: 10.1093/qje/qjs014. The study relied on, upon the impact of jury racial composition on trial outcomes using a data set of felony trials in Florida between 2000 and 2010. Finding that by using a research design that exploits day-to-day variation in the composition of the jury pool to isolate quasi-random variation in the composition of the seated jury, finding evidence that (i) juries formed from all-white jury pools convict black defendants significantly (16 percentage points) more often than white defendants, and (ii) this gap in conviction rates is entirely eliminated when the jury pool includes at least one black member. The impact of jury race is much greater than what a simple correlation of the race of the seated jury and conviction rates would suggest. These findings imply that the application of justice is highly uneven and raise obvious concerns about the fairness of trials in jurisdictions with a small proportion of blacks in the jury pool.

Another immediate implication of the studies findings is that the application of criminal justice in these Florida counties is highly uneven, as a small change in the composition of the jury pool  has a large impact on the conviction rates of black versus white defendants. Simply put, after reviewing the sum of jury statistics, analyzing factors of age race and gender the placing of one black juror in a sitting jury, significantly improves the defense of a black criminal defendant.   

FIGURE II

CENSORSHIP IN AMERICA

Our First Amendment rights are under attack, especially in our schools. This Censorship is a product of racial bias and ignorance. Approved and censored book lists are determined by Laypersons, who admittedly have not even read the texts and books being censored. A perfect example
concerns a body or work presented by the Chronical of Higher Education which highlighted dissertations of five young Ph.D. Candidates in African American Studies, which were banned due to an
article by Schaefer Riley, without bothering to read the essays beyond the titles.

In another incident, the firing of a teacher for asking to organize her class for a fundraiser for Trayvon Martin’s family in Pontiac Michigan. The Sixth Circuit Federal Appellate Court surmised
that the when, a teacher of an upper-level Language Arts class referenced the American Library Association’s “100 most frequently challenged books” and asked her class to create an essay about
censorship. See, EVANS MARSHALL v. BOARD OF EDUCATION OF THE TIPP CITY EXEMPTED VILLAGE SCHOOL DISTRICT – See more at:
http://caselaw.findlaw.com/us-6th-Circuit/1487889.html#sthash.YnYSkHQb.dpuf
With a minimal of research I found an astounding amount of books, some classics that were banned throughout the country based solely on ignorance of knowledge of those books or texts. Most of
these addressed racial bias and other cultural issues. These censors fail to comprehend that knowledge is what addresses the student to overcome prejudice. Censorship demeans the students and society as a whole. These lists should only include material that is inappropriate due to sexual material. School Boards should not have the power to limit students’education. For more information contact the NCAC

Free Sean Ellis!

New & Fair Trial for Sean K. Ellis

  First full disclosure; I know Sean Ellis, he is a studious man with deep convictions for truth and justice. His honesty and integrity are above reproach. After viewing his record, I am convinced of his innocence. He is a victim of police corruption, lies and deceit I would be grateful if you read the article below and yesterday’s post and when you too are convinced sign the petition, and help as you are able. I shutter to think of the contributions to society Sean may have made if not for dirty cops.

In 1995, Sean K. Ellis was convicted of the 1993 murder of Boston Police Det. John Mulligan at his third trial. However, after two previous hung juries. Sean has maintained his innocence since his arrest.

A retrial for Sean is NOW being considered in Suffolk Superior Court, Boston, MA. Each grounds for his new trial request has been submitted by Rosemary Scapicchio, his defense attorney.
*Exculpatory evidence of 3rd party suspects was withheld by prosecutors and police.
*Two investigators of the murder – Dets. Kenneth Acerra & Walter Robinson – had a conflict of interest as co-venturers with the victim in an ongoing scheme of drug-dealer robberies.
*These two corrupt cops (felons & perjurers) brought forward the SOLE WITNESS to identify Sean – a niece of Acerra’s girlfriend who ID’d Sean from photos – but FIRST SELECTED SOMEONE ELSE, and only chose Sean after a private chat with Dets. Acerra & Robinson.
We, the undersigned, being age 18 & over, urge the Suffolk County District Attorney’s office to:
1. Stop opposing Sean K. Ellis’s Motion for a New Trial.
2. Acknowledge that Sean did not get a fair trial.
3. Join the defense in requesting a new trial.
Other Reasons Sean’s Case Mandates a Retrial:
⊙ The City of Boston settled 7 lawsuits against Mulligan for citizens brutality and false arrest.
⊙ About 150 tips were maliciously ignored during this high profile investigation regarding the true murderer of Mulligan.
⊙ Sean’s defense uncovered FBI reports that confirm Mulligan was shaking down drug dealers and prostitutes, extorting merchants for bogus protection, and demanding sexual favors in return for dropped charges.
⊙ Person and or persons clearly had a contract/s out on Mulligan’s life.
⊙ The prosecuting attorneys and police department can not continue to state that Mulligan was randomly shot for his gun while on duty.
⊙ Mulligan participated in a Commonwealth Avenue drug dealer robbery with Dets. Acerra & Robinson 3 weeks prior to his murder.
⊙ Mulligan’s fellow conspirators Dets. Acerra & Robinson had several reasons to plot and cover up who Mulligan’s real killer was. This is also why Mulligan’s cell phone was initially missing from the crime scene for about 5 days. Det. Acerra is the Det who advised other Dets to research Mulligan’s truck for his phone. Coincidentally, it finally appeared but all prior telephone numbers, voicemails, and other information was wiped out of Mulligan’s cell phone.
⊙ Sean K. Ellis is innocent. He had no prior record before this incident. Sean was clearly at the wrong place and at the wrong time.
IMPORTANT LINKS:
Please visit: https://www.justiceforseanellis.com for more research regarding Sean’s case.
Please visit: https://www.dotnews.com for updates on Sean’s Retrial Motion Hearings. One report titled “Ellis Case Update: Hearing on evidence dispute to be continued which posted on September 4, 2014 after Sean’s hearing in August.
Please Visit: http://www.dotnews.com/2014/hearings-resume-ellis-bid-fourth-trial, November 17, 18, and 19 hearing updates

Massachusettes Rule of Criminal Procedure 30(b)

Sean Ellis

Nov. 26, 2014

Sean Ellis

The status of convicted killer Sean Ellis’s motion for a new trial, which is based on his contention that during his trial in 1995 prosecutors did not, as required, turn over to his defense counsel exculpatory information about third-party suspects, is approaching a watershed moment.

In their bid to allow the thrice-tried Ellis a fourth opportunity to rebut the prosecution in the case of the gangland-style murder of Boston Police Det. John Mulligan, Ellis and his attorney, Rosemary Scapicchio, are also asking Superior Court Judge Carol S. Ball to consider whether new evidence uncovered after his conviction would have caused the jurors who sent him to prison to return a different verdict.

Some of this evidence is contained in Boston Police Department documents that defense lawyers unsuccessfully tried to access on several occasions, beginning in 1994. Judge Ball ordered their release to Scapicchio last August.

Ellis was 19 at the time of the crime and has served 21 years of his sentence of life without parole while continuing to maintain his innocence.

Previous coverage: Dorchester man seeks new trial citing withheld evidence in BPD detective’s murder

In the latest chapter of the long-running case, Ball presided over three days of testimony early last week wherein Scapicchio and Suffolk County Chief of Homicide Edmund Zabin interrogated Ellis’s trial lawyers, Norman Zalkind and David Duncan; Sgt. Det. Daniel Keeler, who was a member of the Boston Police investigative team; and retired District Court Judge Phyllis Broker, who was the chief prosecutor during Ellis’s three trials, the first two of which resulted in hung juries.

The judge is expected to hear one more witness, on Dec. 10, before taking the case under advisement.

Scapicchio claims that prosecutors failed to turn over to the defense un-redacted police reports of telephone hotline tips, some half dozen of which named specific individuals with motive and intent to murder Mulligan, and also a tip conveyed by task force Detective George Foley that a fellow Boston officer, Ray Armstead, Sr., had plotted to kill Mulligan out of anger over advances the detective made to his 14-year-old daughter. Foley’s tip was given no credence by Sgt. Det. Keeler, who testified that he questioned Foley and, because of his “deteriorating condition,” recommended that he be stripped of his gun and badge and sent for a 30-day psychiatric evaluation.

Zalkind and Duncan each testified that they had received no information from prosecutors about third-party suspects. Having now reviewed the tips, they characterized them as “spectacular” and “sensational” and said they “absolutely” would have followed them up by filing for further discovery and sending out an investigator. “This [case] was a cause celebre,” Zalkind said, recalling the high tensions in the city around Mulligan’s murder. Of Foley’s information, he observed, “This would have been huge publicity: One cop killing another?”

The state continues to maintain that all tips in question were turned over to defense counsel. Judge Broker testified by video that, although she had no memory of delivering specific documents as the prosecutor, her handwritten circle around the Foley report number, in particular, indicated she’d done so, in accordance with her unwavering policy of “when in doubt, give it out.”

Yet, Zalkind testified, “They fought me tooth and nail” over discovery information, and in a sharp exchange, Scapicchio reminded Broker that she had opposed every defense motion for further discovery.

At issue was evidence from police investigations showing that Mulligan had a personal and business relationship with Police Detectives Kenneth Acerra and Walter Robinson, who in an unrelated case involving drugs, later pleaded guilty to some 40 federal counts of perjury and armed robbery. Among the material sought by the Ellis defense were departmental records on Acerra and Robinson and information regarding Mulligan’s purchase of four private cell phones shared by him, Acerra, and another detective, John Brazil.

Reading aloud Broker’s characterizations of the defense requests for information about these officers as containing “vague, speculative assertions” with “no materiality,” and a quest for “carte blanche production of documents,” Scapicchio asked Broker pointedly: “So this, then, was not part of your policy, ‘When in doubt give it out”? Broker replied she did not have the requested documents in her possession, and “I’m not doing that without a court order…I was of the opinion they weren’t entitled to it.”

Scapicchio says she believes that the admissions after Ellis’s 1995 trial by Mulligan murder investigators Acerra, Robinson, and Brazil to falsifying search warrants and committing a string of Boston drug dealer robberies over a several-year period would have influenced Ellis’s jury verdicts in earlier trials had they been linked to newly uncovered reports of Mulligan’s collusion with the men. She has offered into evidence federal grand jury testimony that three weeks before his murder, Mulligan assisted Acerra and Robinson in robbing two apartments leased by Boston drug dealer Robert Martin; and a report by a 1993 Boston Police Anti-Corruption Unit investigation into charges that Mulligan and Robinson robbed two drug dealers at gunpoint in Brighton in 1991.

A federal investigation resulted in Acerra and Robinson’s convictions in 1998; Brazil turned evidence on his colleagues and escaped charges.

Prosecutor Zabin sought to downplay Mulligan’s complicity with Acerra and Robinson, pointing out that the dead man’s name does not appear on any of Acerra, Robinson, or Brazil’s 1992 or 1993 search warrants, which suggests that the detective may well have believed the 1993 Martin bust resulted from a legitimate search warrant. Zabin also noted that the tip about the 1991 Brighton robbery was given anonymously by a person who declined to assist the investigation further.

Zalkind dismissed that reasoning, calling Mulligan a “rampant criminal” with a “big reputation…the most likely person in the world who’d be involved with Robinson in a crime.” He characterized the Martin robbery disclosure as “the most important of all the material I’ve read,” saying, “If I’d had this in my examination of Robinson in trial, I don’t think we’d be here today.”

Acerra and Robinson were both subpoenaed for the hearings, but did not appear, exercising through their attorneys their rights against self-incrimination.

Scapicchio argues that the criminal ties between Mulligan, Acerra, and Robinson created a conflict of interest for the detectives as investigators and cites two specific actions she alleges they crafted to deflect discovery of their drug robberies.

First, Acerra brought forward eyewitness Rosa Sanchez – the 19-year-old niece of his live-in girlfriend – who claimed she shopped at the Roslindale Walgreens just prior to Mulligan’s murder outside the store and saw Sean Ellis peering into the windows of the detective’s Ford Explorer, which was parked in the fire lane as he slept. Mulligan was shot dead in the vehicle within the hour.

Sanchez was the only witness to identify Ellis, yet she first selected another man’s photo from the police array. Outside the homicide office, she had a private conversation with Acerra and Robinson in Acerra’s car, and moments later she was ushered back into the building by the two detectives. Shown the unchanged array a second time, Sanchez pointed to Ellis’s photo immediately.

Ellis’s trial lawyers motioned to exclude the ID on the grounds Sanchez was coached to identify Ellis by the detective she called “Uncle Kenny.” Testifying under oath, Acerra disavowed a close relationship with Sanchez, saying he saw her only occasionally at family events and didn’t even know her married name. Yet Scapicchio has uncovered a federal subpoena to American Airlines requesting information about two trips Acerra took with Rosa Sanchez and her mother to the Dominican Republic, one of them in October 1994, two months before Acerra’s motion-hearing testimony.

Scapicchio also questioned Acerra’s discovery of Mulligan’s missing cell phone in his SUV several days after the murder – after crime scene technicians had not found it at the scene, and police had declared the phone missing. Several days later, Acerra initiated another search of the vehicle and found the phone in the vehicle’s center compartment between the front seats. The police report stated the phone was there all along, but “no one knew anyone was looking for it.”

Scapicchio alleges that Mulligan’s phone had been “wiped clean” of all phone numbers to remove incriminating evidence and questioned Broker about her asking that Acerra be questioned under oath about the phone when she was prosecuting the case. Broker said she had no memory of this, but did recall asking Boston Police to remove Acerra from the task force. She denied it was due to the cell phone incident and chalked it up to Acerra’s “incompetence.”

Noting that Acerra’s removal by the judge was bitterly opposed by Detective Union President Tommy Montgomery, who wrote to District Attorney Ralph Martin 2d insisting that Acerra be reinstated and that Broker be fired, Scapicchio asked the onetime prosecutor about the Montgomery letter. “I don’t know why the letter was sent,” Broker answered, although she admitted the tone of communications between her and Boston Police was “not good.” (The Boston Globe reported at the time that at a “hastily called meeting” between Broker and Police Commissioner William J. Bratton, an agreement was reached that Broker could stay on if she stopped questioning Acerra and Robinson.
“It was a very difficult time,” Broker said. “A police officer was
killed … my boss [DA Martin] was standing for election … there were strained relations between my office and the Boston Police Department … and all of those things together created the perfect storm.”

Florida, Listen – Up

We now have more than 1.5 million felons living in Florida. That’s 10 percent of the adult population who have to check the “convicted felon” box on an employment application, give up gun ownership and forgo other rights and benefits for life. Most of the convictions in Florida consist of 3rd. degree felonies. Many of these crimes are simple violations, possession of marijuana, minor gambling violations and such. These “crimes” should be shifted to civil violations or misdemeanors. For many that felony on their records means that Florida taxpayers will subsidize them for years if not their entire lives.
And for what, the violations were not violent. These violations often lead to probation, which is often violated by technical mistakes, like missing an appointment or inability to pay the officer for the month. Now, these otherwise productive citizens are incarcerated. While 95% of prisoners are released to the public, these people often arrive as damaged goods. And that felony on their records, means many jobs and careers are no longer available to them. In the words of Dan McCarthy, a former prosecutor and writer,  “It’s time for Florida to look at crime and punishment from a different angle. Incarcerate those who are dangerous and commit violent offenses. But let’s rethink prison sentences for the least severe third degree felonies in Florida law.”