Former DA Sutter stands by investigation of police shooting of 15-year-old

NEW BEDFORD — Former Bristol County District Attorney C. Samuel Sutter has fired back at comments made by an attorney for a 15-year-old killed by New Bedford police eight years ago.

Sutter, in an interview with The Standard-Times, said he stands by his office’s report of the events that led to Malcolm Gracia’s death in 2012.

Last week the city of New Bedford reached a settlement agreement with Malcolm Gracia’s sister, Christina Gracia, for $500,000 in a wrongful death suit she filed against the city after her 15-year-old brother was shot and killed by police officers.

Neither the city nor its police officers admitted to any wrongdoing under the terms of the settlement.

In a press conference following the settlement, Donald Brisson, Christina Gracia's attorney, said Sutter and Mayor Jon Mitchell put forward a "false narrative" of what happened the night Gracia was killed.

Late last week, Sutter said, “First and foremost my heart goes out to the family of Malcolm Gracia. This was a profound tragedy and I always felt that way and said it. Second, I stand by our investigation, it was very thorough and fair.”

At the time of Gracia's death, Sutter concluded that the shooting was justified and no criminal charges were brought against the officers.

A civil case was allowed to move forward last May after Superior Judge Thomas McGuire said the officer's stop of Gracia and another teen on Cedar Street was illegal because the police narrative fails to provide reasonable suspicion that Gracia and the teen walking with him were armed and dangerous.

Following the release of his report in 2012, Sutter said the determination of whether or not the police properly stopped the teens was outside the scope of his investigation.

His report states that Gracia had a knife and “according to (a) Cedar Street eyewitness there were multiple attempts by Gracia to stab Barnes," who was one of four detectives at the scene, and that Gracia was advancing on another detective when that detective — and a third detective located behind Barnes — fired.

The report also states that Barnes was treated at Rhode Island Hospital for a stab wound to his chest and abdomen area and a stab wound to his arm. An autopsy report states that Gracia was shot three times in the back and once in the head.

Brisson and the family announced they would present evidence on May 16, the eve of the eight-year-anniversary of Malcolm’s death, and Brisson said that the evidence will show that Detective Tyson Barnes was not stabbed and that Gracia was not advancing on a detective when he was shot, but rather running away.

Sutter said he disagrees with Brisson’s statement alleging Barnes wasn’t stabbed, and reasserted that he stands by the report.

“Remember there was a civilian witness who saw it all unfold,” Sutter said, “He is impartial and had no affiliation with anyone. Mr. Brisson fails to mention him.”

Sutter then lauded the two assistant district attorneys who led the investigation, Patrick Bomberg and William McCauley.

“And remember the investigation was led by the same two assistant district attorneys who led so many successful investigations at the District Attorney’s office during my eight years as District Attorney,” Sutter said, “Numerous and varied investigations including Aaron Hernandez.”

Three years after Gracia was killed, The Washington Post reported that it remained unusual for police to face criminal charges in fatal shootings, with only an average of five officers per year indicted on felony charges from 2005 -2015. According to The Post, 965 people were fatally shot by police in 2015, and only 18 officers were charged with felonies including murder, manslaughter, and reckless discharge of a firearm.

When asked what he thought of the scheduled evidence presentation by Brisson, Sutter said, “It’s not going to be a trial, it’s going to be the evidence according to Don Brisson, and who is Don Brisson?”

Sutter suggested Brisson invite Bomberg and McCauley to present their side of the investigation, but expressed doubt that Brisson would.

As a part of the settlement, “The parties agree to Plaintiff's limited release of the following information: Tyson Barne’s ER hospital diagnosis, diagnostic tests, treatment, admission and discharge time, and that he may be excused from work for 4-days.”

Additionally the settlement says the Plaintiff may release one photo of Barnes taken at Rhode Island Hospital.

Brisson has said he plans to share the information at the May 16 presentation.

“You’ll see the alleged stab wound of Detective Barnes, I’ll show you a photo of that...you’ll see the shell casings...I will you show you the evidence , the city has never offered to do that, I wonder why,” Brisson said.

The Police Department has shared a picture of the knife they allege Malcolm Gracia used to stab Barnes with The Standard-Times.

Brisson said the evidence will support his narrative of events.

“Make no mistake the evidence does support it,” Brisson said, “I would never ever say it did if it didn’t."

The attorney pointed out that in the settlement the parties agreed not to misrepresent or disclose any facts not supported by the evidence.

When asked why he didn’t bring the case to trial if he was confident in the evidence, Brisson said, “The family wanted the ability to present the evidence to the public and the city agreed at least to a majority of that evidence being presented to the public and once that goal was accomplished, there was no need to try the case.”

In addition to the monetary compensation and ability to share the evidence, the settlement also states that the parties agree the Police Department will continue its ongoing comprehensive review of current police training and implement changes where necessary and continue its review of procedures and protocols related to the use of existing video monitoring equipment.

When The Standard-Times contacted Jonathan Carvalho, the city’s public information officer, for comment he referred the newspaper to the initial statement the city sent out — which said the settlement allowed the city to avoid litigation costs and gave a measure of closure for the family — and also a statement from the Police Chief Joseph Cordeiro.

“As the NBPD moves forward after the recent settlement with the family of Malcolm Gracia, I want to take a moment to reiterate my appreciation and support for the hard work that the men and women of our department do every day for our city," Cordeiro said, "We, all of us, can take comfort in knowing that our professionalism — especially in the midst of criticism — will speak volumes about the kind of police department New Bedford has.”