Records raise new questions about fatal police shooting of Denis Reynoso

September 6, 2013: Lynn police officer Joshua Hilton (top right) is interviewed about the day he fatally shot Denis Reynoso Earlier this month, the Essex County District Attorney's Office provided The Bay State Examiner with a number of records related to the fatal police shooting of Denis Reynoso. The records offer a rare look at how police shootings are investigated in Massachusetts and raise new questions about the Reynoso shooting.

Reynoso was shot to death in his apartment by Lynn police officer Joshua Hilton in front of his five-year-old son on September 5, 2013. Lynn Police Chief Kevin Coppinger told reporters that day that Reynoso was shot after grabbing a police officer's gun. After Reynoso was shot, family members and other supporters organized several rallies to protest the shooting and questioned whether Reynoso really took the officer's gun and why the police entered his apartment without a warrant.

In January, the Essex County District Attorney's Office, which was responsible for overseeing the investigation of the shooting, released a four-and-a-half page report clearing the three officers who were involved of any criminal wrongdoing.

The summary of events as told in the district attorney's report went something like this:

Police were called to the apartment complex where Reynoso lived after several people saw him exhibiting strange behavior and yelling. The first three officers to arrive were John Bernard, Paul Scali, and Joshua Hilton. Before they arrived on scene, Reynoso had gone back inside his apartment. The officers spoke to two employees of the property management who pointed the apartment out to them. They also spoke to a postal worker who told them the man was Denis Reynoso. The postal worker said Reynoso was a military veteran and might suffer from post-traumatic stress disorder.

Bernard and Scali walked to the front of the house while Hilton went to the back to make sure Reynoso didn't try to leave through a back door. Bernard and Scali knocked on the door and followed Reynoso inside after he answered it. After they entered, Scali went to let Hilton in through the back door when Reynoso suddenly charged at Bernard. Reynoso somehow grabbed Bernard's gun and tried to shoot him, but Bernard was able to grab the gun and push it away from his head just in time. Scali ran back and joined Bernard in struggling with Reynoso over the weapon.

Hilton ran back to the front of the house, entered through the front door, and witnessed Reynoso fire a second shot while struggling with the two officers. Bernard told Hilton to shoot Reynoso. After saying at least five times that he was going to shoot, he fired a single shot, hitting Reynoso in the left side. Reynoso was later pronounced dead at a hospital. After the shooting, the officers noticed Reynoso's son near a couch behind them.

We were unsatisfied by the district attorney's report and raised a number of questions about it when it was first released. In February, we made a public records request to the Essex County District Attorney's Office for all records related to its investigation of the Reynoso shooting. Later that month, we received a letter from the district attorney's office stating that the office would charge us a fee of $112 which we paid.

In March, we were provided with nearly 200 pages of previously unreleased documents related to the investigation of the shooting. We were also provided with video-recordings of the interviews that investigators conducted with the three officers involved in the shooting.

The videos show the officers being interviewed by Detective Lieutenant Norman Zuk and Sergeant Stephen O'Connor, both of whom are state police officers assigned to the district attorney's office, and Captain Mark O'Toole of the Lynn Police Department. An attorney, Tom Dressler, represented all three men during their interviews.

Did the police walk in or break in?

The records provided by the district attorney's office show that Bernard and Scali provided different, contradictory accounts of how they entered Reynoso's home.

Bernard claimed that Reynoso walked away from them, into the house, and they simply followed him in. "He kinda just turned away from me. He kinda walked away," Bernard said during his interview. Later in the interview, O'Toole asked if Reynoso tried to close the door on Bernard and Scali. "No, he touched it and then just walked away. He didn't close it. I didn't force it open," Bernard replied.

Scali said that Reynoso tried to slam the door and Bernard used his foot to kick it open. "He [i.e., Reynoso] grabs the door. He swings it out, goes to rip it shut, and John [Bernard] kicks it as it's – as he tries to shut it. And it – and the door just flies open," Scali said.

Scali's version of the story was backed up by several other witnesses. In fact, an officer who spoke to Bernard shortly after the shooting said Bernard gave him an account similar to the one Scali provided during his interview. "[A] male party opened the door and yelled to them your [sic] not coming in here and went and slammed the door. Officer Bernard fearing for the safety of the child was able to stop the door from shutting and entered the apartment," Sergeant T. Hallisey wrote, paraphrasing Bernard. Another witness reportedly told Detective T. Ferrari that "Reynoso tried to close the door but the officer kicked it so it didn't slam in his face."

The investigators who interviewed the officers never asked either of them about their contradictory statements. The district attorney's report does not acknowledge that there was any disagreement about how they entered Reynoso's home. The report merely states that one witness, a postal worker, "observed Officers Bernard and Scali follow Reynoso into the house."

How plausible is the police story?

Bernard claimed that Reynoso was able to take his gun even though it was "locked in" to the holster at the time. Bernard claimed he didn't realize Reynoso had taken his gun until he saw the flashlight attached to it. "I don't know how my gun got taken. It happened so fast," Bernard said. "He was a combat vet, so he had to have been trained in something. He knew right what to do. Somehow he got it right out like no problem."

After the shooting, a state police armorer examined Bernard's holster and gun. According to the district attorney's report, the armorer "found the tension screw on the bottom inside was missing and the holster was somewhat worn. He found the gun was loose while in the holster and that it could be easily removed with all safety devices engaged."

The armorer's report, which was provided to us by the district attorney's office, stated that when all the safety devices were enabled on the holster, it still took three to five seconds of "twisting, turning, and pulling" on the gun before it would come out. It's difficult to believe that Bernard wouldn't have noticed Reynoso spending several seconds trying to force the gun out of the holster.

It's also difficult to believe that Bernard didn't notice his holster wasn't functioning properly prior to the shooting. Bernard said he had years of military experience and was a police officer for seven years prior to the shooting. Hilton said both he and Bernard were required to qualify in firearms once a month because they were on the department's Special Response Team.

When Bernard was interviewed about the shooting, the armorer's report still hadn't been completed. When it was finished, the investigators never interviewed Bernard a second time to ask him about the questions it raised.

During the interview, Bernard also said the magazine was removed from his gun at some point during the struggle with Reynoso, which means it's not clear if Reynoso could have fired another bullet from the gun at the time he was shot. Bernard did not mention that the magazine was removed from his gun until he was asked about it. Bernard said he put the magazine back into the gun before it was taken to be analyzed.

The fact that the magazine was removed was never mentioned in the district attorney's report. In fact, the report states that Bernard thought he was going to be killed because he knew the gun still had 13 rounds in it when Reynoso was shot.

It is still unclear if Reynoso even fired a weapon at all because the gunshot residue test that was conducted for the investigation came back negative. In his report, the district attorney cited an anonymous "forensic scientist" who speculated that "when Reynoso was prepped for surgery, the cleansing might have removed the residue, and testing was done after 4 hours elapsed and is considered unreliable at that point." The gunshot residue report does not make any mention of the residue possibly being washed off or of the test results being unreliable. It merely states that the tests came back negative and thus "no conclusions can be made."

Records reveal more information about Reynoso's son

Denis Reynoso, Jr. (Source: The Lynn Daily Item)

The records provided by the district attorney's office reveal new information about Reynoso's five-year-old son, Denis Reynoso, Jr., who was present when the shooting occurred.

When the three officers were interviewed by investigators, they all denied knowing that a child was inside Reynoso's home prior to the shooting. However, their statements are contradicted by a report by Sergeant T. Hallisey, who spoke with Bernard shortly after the shooting. "They could hear what sounded like a child inside" Hallisey wrote, paraphrasing Bernard. "Officer Bernard fearing for the safety of the child was able to stop the door from shutting and entered the apartment." It's possible Hallisey's report is the result of a miscommunication, but none of the officers were ever asked about the contradiction when they were interviewed.

The records released by the district attorney's office also support the claim by Reynoso's fiancée Jessica Spinney that Reynoso, Jr. was covered in blood after the shooting. The blood was never mentioned in the district attorney's report.

Lynn Police Detective R. Tinkham, who watched over Reynoso, Jr. at the police station, wrote that he "saw [the child] had blood stains on his hands and arms and neck area." Tinkham washed the bloodstains off Reynoso, Jr. and they were never photographed or analyzed as evidence.

The officers claimed that Reynoso, Jr. was on a couch across the room from where the shooting took place, so there is no reason for blood to have gotten on him as a direct result of the shooting. The blood may have come from Bernard or Scali. Bernard said he picked up Reynoso, Jr. and handed him to Scali shortly after the shooting. He also said that he later patted Reynoso, Jr. down to make sure he wasn't injured. Given their close proximity to the shooting, Bernard and Scali may have gotten blood on them and transferred it to Reynoso, Jr. through contact, however, none of the officers ever mentioned the blood or were asked if they knew how it got on him.

Tinkham spoke to Reynoso, Jr., but the statements he quoted in his report were redacted by the district attorney's office, which cited the "privacy" exemption to the public records law as its reason for withholding the information.

None of the documents provided by the district attorney's office indicate that investigators ever conducted a formal, video-recorded interview about the shooting with Reynoso, Jr.

Reynoso, Jr.'s statements could have been important to the investigation because he is the only living, non-police eyewitness to the shooting.

How independent are district attorney investigations?

October 5, 2013: Jessica Spinney and other family members and supporters of Denis Reynoso rallied outside the Lynn Police Station to protest Reynoso's killing.

On October 5, 2013 – exactly one month after Reynoso was shot to death – a crowd of more than a hundred family members and other supporters gathered in Lynn outside the police station in protest. Jessica Spinney, Reynoso's fiancée, spoke to a sergeant at the station and handed him a petition calling for an independent investigation of the shooting.

Earlier that day, Peter Alvarez spoke out against the fact that the Essex County District Attorney's Office was responsible for overseeing the investigation, arguing that there was a conflict of interest. "One of the reasons why it's really important that the Essex County DA's Office doesn't run this investigation is because they are an interested party. The Essex County DA uses the Lynn Police Department's investigations to solve crimes. They have a very compelling interest to find that these officers did nothing wrong," Alvarez said during a speech on the Lynn Commons.

Documents provided to The Bay State Examiner show that the Essex County District Attorney's Office has a close working relationship with the officers involved in the shooting. The district attorney's office provided us with a list of court cases the three officers have been involved in.

Scali has been involved in seven cases in the few months he's been a Lynn police officer. Bernard has been involved in 127 cases. Hilton, the officer who shot Reynoso, has been involved in 243 cases.

These 377 cases do not necessarily represent the full extent of the relationship between the three officers and the district attorney's office. Assistant District Attorney David F. O'Sullivan wrote in a letter that "the data includes only matters that resulted in a criminal complaint or indictment in the last decade." O'Sullivan also said that juvenile court cases were not included.

A district attorney's ability to successfully prosecute cases relies on the credibility of the police departments in his district. If a major issue with members of the Lynn Police Department, or any of the other police departments in his district, were to be exposed, past cases prosecuted the Essex County District Attorney's Office could be overturned and pending cases might have to be thrown out.

The recent case of Annie Dookhan, the former state police chemist who faked lab test results in drug cases, shows that misconduct by a single individual in the criminal justice system can affect hundreds or even thousands of cases. It should therefore be no surprise that district attorneys have cleared the police in every single one of the 73 fatal police shootings that have occurred in Massachusetts between 2002 and the present.

Records that have not been released

The district attorney's office provided The Bay State Examiner with a large amount of material related to the Denis Reynoso shooting, but we were not provided with everything.

The district attorney did not provide us with recordings of 9-1-1 calls and police radio transmissions related to the Reynoso shooting. These recordings were not mentioned in the district attorney's response to our public records request, so we have asked for them again.

The district attorney's office refused to release video-recordings of the interviews conducted with non-police witnesses, citing the "investigatory" exemption to the public records law. Assistant District Attorney David F. O'Sullivan wrote that the police are not disclosing these videos because witnesses might not come forward in the future if they don't believe their statements will be kept confidential.

We have asked the district attorney's office to release the interviews in an alternate format, such as transcripts with personal information redacted. We have also told the district attorney's office that we do not believe the investigative exemption applies to three people who may be witnesses because they voluntarily spoke about the shooting with TV news media.

The district attorney's office also refused to release statements by Denis Reynoso, Jr., and photographs and video of the inside of Reynoso's apartment without first obtaining permission from the attorney for Reynoso's family, citing the "privacy" exemption to the public records law. Statements by other witnesses in police reports were not redacted by the district attorney's office, so we have asked for clarification on why Reynoso Jr.'s statements were withheld. We have attempted to contact the family through a mutual acquaintance to see if they want the records to be released, but have not heard back yet.

Documents

Update (4/29/2014): The documents related to the Reynoso shooting were deleted by Scribd after the district attorney's office failed to redact some private, legally protected information. We have since been provided with a new copy of the records which has the information redacted and uploaded it to Scribd. See here for more details.