Letter to Chief MacDonald

BPD-MacDonald-4-7-16

On April 7, 2016, I hand-delivered the letter copied below to Barnstable Police Chief Paul MacDonald.  Chief MacDonald assured me that he would answer the questions in it and discuss them with me in a follow-up meeting with him.

Black Lives Matter Cape Cod

Duane Alves – alvzie@gmail.com – Falmouth, MA

Chief Paul MacDonald

Barnstable Police Department

April 7, 2016

Dear Chief MacDonald,

I have documented evidence indicating that you and/or those working under you engaged in multiple instances of abuse of discretion, prosecutorial misconduct, and failure to disclose inculpatory evidence. At the end of this letter, there is a list of questions that I respectfully request you answer.

Professor Jon M. Shane, Ph.D. who teaches at the John Jay College of Criminal Justice and specializes in police policy and practice, violent crime, and situational crime prevention wrote a report on this incident that references evidence that was available to Barnstable Assistant District Attorney Michelle Groff and the Barnstable Police Department that was either withheld or not entered into evidence during the criminal trial, or not properly investigated.

Dr. Shane’s report is available upon request and cites a Barnstable police narrative that quotes the main attacker, John Daly: “Daly admitted that he was in the ‘scrum’ along with Borum [another law enforcement officer] Ex. DD.”  While this critical police document was available to ADA Groff, it was apparently never entered into evidence during the criminal trial. Ms. Groff ignored the obviously significant fact of Daly admitting to being involved in a “scrum” that clearly implicated him.

Further, Professor Shane quotes witnesses who saw Mr. Daly strike Mr. Alves: “Cook heard Daly say, ‘It’s fucking on.’ Ex. EE. Daly grabbed Alves by the throat and started punching him. Ex. BB.”

During the fight, Mr. Daly’s cell phone came loose and I recovered it and kept it as evidence.  My idea was to only keep it until the police arrived, at which time I would hand it over to them.  Mr. Daly and his fellow officers convinced the bar management not to call the police, which allowed them to attack me again with impunity later on.

When the Barnstable police finally did arrive, I gave Mr. Daly’s phone to them.  Quoting Professor Shane’s report: “Alves was taken out by stretcher to the ambulance. Alves handed the cell phone to the Barnstable Police before being taken away in the ambulance.”  Patrolman Armando Feliciano’s police narrative taken May 26, 2011 on the night of the incident (A Banstable Police Narrative confirms:) “I met with the male that was missing the cell phone and he was identified as John Daly…I asked Alves if he had the cell phone and he stated yes and gave it to me.  I gave Daly his phone back and again asked him what happened inside.”

During the criminal trial, ADA Groff and her office also failed to question the witnesses about the racial epithets hurled at me during the attack.  The day after the attack on May 26, 2011, I filed a statement with the Barnstable police declaring that I was called a “nigger” during the attack, but ADA Groff never asked me or any other witnesses about this.  When witness Sheri Valeri was finally given the opportunity to discuss the event in detail while testifying for a sworn deposition taken during a civil case, she mentioned the epithets. Professor Shane quotes from Ms. Valeri’s deposition: “Daly kept screaming, ‘I want my fucking phone!’ ‘That fucking nigger has my Fucking phone!’.”

Given the unquestionable hard evidence proving that Mr. Daly was involved in the attack against me, along with Daly’s own admission that he was involved in the “scrum,” it is unfathomable that neither ADA Groff nor the Barnstable police department charged Mr. Daly with any crime.   When I realized this was the case, I wrote two letters to Chief Paul Mcdonald, asking him to charge Mr. Daly, but received no response. I next went to the Barnstable Courthouse and brought Mr. Daly up on Assault and Battery charges myself. They were denied without even a hearing.  After the criminal trial was over, I sent Barnstable DA Michael O’Keefe’s a letter formally requesting that he charge Mr. Daly with the crime of Assault and Battery. He too denied my request.

Compounding these failures and highly questionable decisions is the fact that during the criminal investigation, Barnstable Police Detective Daniel Turner admitted under oath that Agent Daly’s photograph was not part of the photo array shown to me to identify my attackers.  Equally significant is the fact that no other witnesses–some of whom were in a very good position to see my attackers–were asked to review any photo arrays.

The Barnstable Police Department and ADA Groff’s failure to properly investigate the incident in general and Jon Daly in particular had serious ramifications for me. Protecting Mr. Daly by keeping his headshot out of the photo array allowed the Barnstable Police Department, ADA Groff and others to fraudulently claim that since I “never identified” Mr. Daly, he could not be charged. This same fraudulent claim also negatively affected my civil trial when a defense attorney stated that no one had identified Mr. Daly.  To me, the most egregious crime beyond the 30% loss of peripheral vision in my right eye that was caused by a punch from Somerville Officer Ariel Calazzo was the fraudulent protection that the Barnstable Police Department and the Barnstable District Attorney’s office afforded to Mr. Daly by engaging in blatant obstruction of justice.

1) When was ADA Groff called in to take over the Investigation and Why?

2) Who’s decision was it to call in ADA Groff?

3) When did your department learn that Duane Alves gave John Daly’s cell phone to the Barnstable police?

4) Did your department review with John Daly, the initial police interview summary in which Mr. Daly is quoted admitting to being involved in a “scrum?”

5) Please explain how photo array was generated? Who generated them? Was that person familiar with all the relevant police narratives.

6) I have testified that Mr. Daly’s cell phone dropped from his hip while he was kicking me.  Other narratives including those with statements from Mr.Daly’s fellow law enforcement colleagues, show that Mr. Daly was in a face-to-face argument with me, when the fight broke out. Mr. Daly was seen grabbing me by the throat and punching me, according witness/bouncer John Taylor’s Barnstable police narrative. Why was Mr. Daly not put in any photo array?

7) When did you and the lead detective learn that Mr. Daly’s photo was not in the photo array?

8) What did you or that person do to rectify this critical omission?

9) Five different Police narratives identify a man about 5’10 with a bald, or buzz cut haircut wearing Plaid shorts, (Mr. Daly in deposition admitted he may have been wearing plaid shorts) as the main aggressor in the incident. Why didn’t BPD try to identify the man in the plaid shorts?

10) Why wasn’t John Daly charged with a crime?

11) Why were no witnesses (other than myself) shown any photo arrays?

12) Who is responsible for ensuring that there is no abuse of discretion?  What is the penalty for  abuse of discretion?

13) Who is responsible for ensuring that there is no prosecutorial misconduct?   What is the penalty for prosecutorial misconduct?

14) Who is responsible for ensuring that there is no failure to disclose inculpatory evidence?  What is the penalty for the intentional failure to disclose inculpatory evidence?

Sincerely,

Duane Alves