Years after Malcolm Gracia’s murder, questions remain

By | September 24, 2020

Introduction

On May 17, 2012 15 year-old Malcolm Gracia was shot by New Bedford police. The circumstances of the killing are something that today would receive a more thorough investigation than the Gracia family got in 2012. Following a $500K settlement for the unconstitutional stop that triggered Gracia’s murder, police and DA reports which exculpated the City and New Bedford Police, an effort to conceal information from the public, and finally a gag order to muzzle the family attorney, many people thought the Gracia story had gone away for good.

But Don Brisson, the family’s lawyer, just can’t let it go. In a Zoom meeting on September 20th, Brisson said there are a number of things that continue to haunt him about the Gracia case. Foremost is the fact that police didn’t have to illegally stop, and then assault, Gracia. If they thought he was a gang member, they could have gone back to their offices and checked their photo registry.

Despite Brisson’s ambling pace and a four-hour marathon Zoom meeting, it was impossible to leave the online meeting because the disturbing questions Brisson raised just kept mounting. His walk through the evidence revealed an unnecessary killing, an improbable tale concocted and clearly coordinated by officers on the scene, revealing contradictions between police and a civilian witness, overly friendly questioning by the state police, an apparent whitewash by the DA, with a lot of information about the case sealed by a gag order to this day.

Don Brisson

Brisson’s questions deserve an answer.

Named as defendants in the Gracia family’s civil suit Brisson originally filed were police officers Tyson Barnes, David Brown, Paul Fonseca, Brian Safioleas and Trevor Sylvia, along with the city of New Bedford and the estate of David Provencher, who was the police chief at the time.

The heart of Brisson’s 4 hour marathon presentation last Sunday was a review of witness reports of the altercation between Tyson Barnes and Malcolm Gracia, an examination of DA Sutter’s report, and a summary of Barnes’ medical records. What follows are the concerns Brisson raised in Part 3 of his presentation of the evidence:

DA Sam Sutter

Sam Sutter was the Bristol County District Attorney at the time. Brisson notes that Sutter’s report is full of omissions and failed to ask critical questions. For example, it does not mention Detective Tyson Barnes’ initial assault on Malcolm Gracia.

Sutter’s report also claims Gracia grasped Barnes’ back, removed his knife from a sheath, thrust the knife twice into Barnes’ abdomen and made repeated attempts to stab him after that. Then, carrying the sheath, Gracia allegedly ran at another officer. Brisson points out that Barnes, if he actually feared for this life, could have shot Gracia but did not. Although Sutter’s report says that eyewitnesses corroborate police accounts, this is not actually true.

Det. Tyson Barnes

Brisson reviewed testimony from various witnesses. Despite the fact that the witnesses referenced diagrams and occasionally physically acted out events they were discussing, for some reason video interviews of a fellow cop were prohibited by investigators. What the public is now left with, going on a decade later, is audio-only, and incomplete.

In Barnes’ interview eight days after the shooting he says he does not know what happened to his Taser. Barnes says Gracia began running South and was no longer a threat. “I just knew he wasn’t a threat anymore.” But there was no mention of jamming Gracia against the building, which several other witnesses recalled.

The interrogator, State Police Sergeant Dolan, never asks why Barnes doesn’t shoot Gracia if he is in fact attacking other officers. Dolan also never asks Barnes about the extent of his injuries —- an issue of considerable controversy. Sergeant Dolan asks Barnes about being stabbed in the “chest” (not in the abdomen). So which was it?

There are numerous pauses in the questioning, giving officers time to get their stories straight. After one such pause, upon re-questioning, Barnes now says he was in a lot of pain, while previously he claimed not to have felt anything when purportedly stabbed. Now he can suddenly recall details he previously could not. Barnes now recalls hearing “officer down, suspect down.” He remembers a Detective Gangi applying pressure to his chest, Detective Fonseca is calling for an ambulance, and Trooper Mark Lavoie is taking Barnes’ belt and gun. EMS staff cut off Barnes’ clothes as he is transported to the hospital, supposedly with a “sucking chest wound.” Barnes recalls he gets his gun back only several days later.

Most shocking of all is the photo of Barnes’ chest we see later. There is no sucking chest wound. There is nothing that would have required someone to apply pressure to a wound. There is nothing that could have caused such intense pain Barnes recounts. To this day the Rhode Island Hospital records of Barnes’ injuries are off-limits.

Det. David Brown

Dolan interviews Detective David Brown four days after the shooting, again audio-only. Brown contradicts Barnes’ testimony about seeing the unholstering of the knife. Brown says Barnes immediately grabs him and drives him into the building. Then Gracia “controls” Barnes and stabs him twice. Now Brown says Barnes is in shock, white as a ghost, surprised at events.

Brisson asks how it is possible that a 200-pound, 5’11” detective with two hands could be controlled by a 5’8″ 150-pound kid with one hand on his shoulder. And why doesn’t Brown either Tase or shoot Gracia, given that he has just purportedly stabbed Barnes? And why would Barnes be surprised, given that he had just assaulted a kid?

Brisson again questions the pauses in the interrogations, the hints, the guided testimony, the lack of video, the “clarifications” and the leading questions. Brisson finds the interrogation totally biased. No tough questions are asked.

Det. Trevor Sylvia

Before encountering Barnes, Detective Sylvia recounts Gracia running. Barnes is running to intercept Gracia, then Gracia turns around, fumbling in his waistband for something. Sylvia does not pull his own weapon and warn Gracia. Dolan asks Sylvia if anyone has issued verbal commands, and Sylvia answers “no.” Barnes catches up with Gracia and tackles him from the side and pushes him into the house. Then Sylvia says he hears someone say “he’s got a knife” —- which contradicts both Brown and Barnes. Sylvia also reports Gracia switching to his non-dominant hand after attacking Barnes.

Det. Paul Fonseca

Paul Fonseca is the officer who shoots Gracia through the head. He claims not to know if Barnes has grabbed Gracia (despite the running tackle Sylvia describes). Fonseca claims Barnes pushes him with his shoulders into the building as Gracia tries to control him. Brisson asks why the Asst. DA, DA Sutter, Sergeant Dolan, and others have failed to ask if Gracia himself may have felt threatened. After all, Gracia is the one initially assaulted. Fonseca says Gracia was grabbing Barnes by the back of the head. Brisson asks how this is possible, given the difference in height and physical build between Barnes and Gracia, and why the location (head/shoulders) is not consistent in the testimonies.

Postmortem Trial by Press

An EMS report mentions a “sucking chest wound” and WBZ and CBS dutifully report “serious life-threatening injuries.” As we see, the extent of Barnes’ injuries (if any) are exaggerated and the demonization of Gracia by Gracia’s former teacher Nick Baptiste becomes fodder for news articles. Sutter’s report also exaggerates the threat Gracia posed and omits mention of the Taser. The press loves pictures of Gracia’s knife, a scary-looking fish gutting hook. The press also indulges in arm-chair psychology, imagining what on earth drove a crazed teen killer to try to go out in a blaze of glory, taking as many cops with him as possible. Such demonization, as we have seen in many police shootings around the country, is either launched by the police or the press. Take your pick.

Medical records

Interrogator Dolan asks Barnes’ lawyer Gambaccini for a description of his injuries —- no one apparently ever looked at RI Hospital records and it is now subject to a gag order. The question of whose blood is on the knife was never answered as no one ever tested the knife. Under his T-shirt, Barnes was wearing a white muscle shirt. There was no blood on it. A photo of Barnes’ torso shows a small 1cm superficial scratch. Barnes didn’t need stitches or trauma treatment. He got two percosets and ibuprofen. Barnes was cleared to go home without restriction. He arrived in the hospital at 9pm. He was cleared by doctors by 11:43pm. X-rays ruled out pneumothorax involvement. Barnes was observed overnight. No antibiotics were administered. He got a tetanus shot. Vital signs were normal. Barnes had previously been taking prednisone, percosets, and valium for a “back injury.” He was discharged at 5:12am. Barnes’ toxicology screen, which Brisson had to fight to obtain, revealed benzodiazepine and opiates. Valium lowers inhibitions, Brisson points out. Prescriptions written by Barnes’ doctor were never delivered to Superior Court —- in violation of a subpoena.

DA Sutter’s report never mentions Barnes’ toxicology screen —- but he managed to cite the marijuana in Gracia’s system.

This is what police claim is the injury caused by Malcolm Gracia repeatedly stabbing Detective Tyson Barnes with a fishing knife.

Medical Record requests by Brisson

Despite police and EMS concern for Barnes’ injuries —- they considered medevac at one point —- Brisson ask why EMS didn’t stop at Charlton or St. Anne’s if Barnes’ injuries were truly life-threatening. Both hospitals were closer.

Animation

An animation depicts the improbable 20 foot distance that Barnes fell back, at least according to his follow detectives’ accounts. The animation also raises questions about why no one tried to stop Gracia. And it reveals discrepancies in the location of shell casings found at the scene.

After being “stabbed” Officer Barnes stumbled back … back … back … 20 feet.

Misc

After the killing Barnes went out on disability for a non-injury.

The Restraining Order

Brisson raises the issue of Barnes’ mental health and behavior.

It turns out that Barnes, in addition to having questionable drugs in his system at the time of the shooting, has a restraining order requiring his weapon to be confiscated.

The restraining order is not found in his personnel file. Brisson asks why the NBPD didn’t ask for Barnes’ weapon. Brisson had to fight for discovery of injury, drug, and personnel records on Barnes, which it turns out strongly call his conduct in question. Brisson asks why Sutter didn’t drag Barnes through the same mud as he did Gracia?

Barnes apparently received explicit photos from another officer’s wife or girlfriend at one point. He met with the officer regarding his dispute at a city Burger King and allegedly threatened to shoot the other officer. Then-Police Chief Teachman gave Barnes a one-day suspension —- which then-Mayor Scott Lang simply voided.

Like so many similar cases around the country, both the City and the PD knew they had a “bad apple” long before he was involved in a police killing.

Next Week: Physical evidence

To watch the final Zoom presentation, contact MalcolmGraciaEvidence@gmail.com