PROVIDENCE — A Providence police sergeant accused of assaulting a handcuffed man is seeking to dismiss the criminal case against him after the head of the city’s civilian review board publicly released videos of the alleged assault.
Video footage from a bystander and a police body-worn camera appear to show Providence Sergeant Joseph Hanley grinding his knee into a handcuffed man’s head on the pavement, kicking him, and stepping on his legs during an arrest on April 19.
The man was not injured; misdemeanor charges against him were dismissed, and he settled with the city for $50,000. Hanley was charged with simple assault in May and suspended without pay on Oct. 24.
The board of the Providence External Review Authority voted against releasing the video in August, to avoid jeopardizing the criminal case against Hanley. But last week, PERA Executive Director Jose Batista, a lawyer who is a state representative-elect for Providence, offered the footage to the media anyway, telling reporters that he wanted “transparency” and for PERA to be “at the table” during criminal investigations of police officers.
Hanley’s lawyer, Michael J. Colucci, filed a motion this week to dismiss the misdemeanor assault charge, saying the release of the videos last week violated Hanley’s rights to due process and that Batista had prejudiced the case before trial.
PERA’s board voted 6 to 3 to fire Batista Monday night for defying their decision not to release the videos. The Police Department and attorney general’s office had also refused to release the videos, citing the pending criminal case against Hanley.
Batista declined to comment Wednesday on the motion to dismiss and whether he regretted releasing the videos. PERA chairman Nick Figueroa, one of three members who voted against firing Batista, did not respond to a request for comment Wednesday.
Attorney General Peter F. Neronha said that his office will move forward with prosecution of Hanley and address the motion to dismiss.
“This is not something that comes as a surprise to me,” Neronha said. “It’s why we’ve urged caution in releasing [evidence] in a criminal case.”
Neronha has asked for an ethical opinion from state Supreme Court’s ethics advisory panel on whether state prosecutors can recommend the public release of body-camera videos before trials when officers use force. While the public may want to see video evidence, Neronha said prosecutors have to weigh the risks of jeopardizing their cases and also their law licenses, which forbid them from seeking pretrial publicity.
“We believe justice means effective prosecution, and anything that jeopardizes it concerns me very much,” Neronha said.
PERA — the only civilian review board in the state — is authorized by the city to investigate civilian complaints of police misconduct and make administrative recommendations. Civilian review boards do not have authority in criminal investigations, according to the National Association for Civilian Oversight of Law Enforcement. The City Council had issued subpoenas for the videos on PERA’S behalf to investigate the Hanley case. After viewing the videos in August, the board voted not to release them.
However, Batista told the Globe last week that he thought the public should see the videos. He had proposed a “grand bargain” to Neronha earlier this year, suggesting that Neronha dismiss the case against Hanley so the videos could be made public, and then re-charge him with assault after the videos had sparked a “public conversation.” That proposal infuriated some members of PERA when they found out.
So, Batista decided to release the videos on his own. In a memorandum supporting his motion to dismiss the case against Hanley, Colucci wrote that Batista’s actions were contrary to the Rules of Professional Responsibility for prosecutors.
Colucci’s argument about pretrial publicity draws upon the case of Dr. Samuel Sheppard, who was convicted of the brutal murder of his wife, Marilyn Reece Sheppard, in 1954. The Supreme Court overturned the conviction, ruling that the state trial judge had failed to protect the defendant from prejudicial pretrial publicity that deprived Sheppard of a fair trial.
“Due process requires that the accused receive a trial by an impartial fact finder free from outside influences and that the trial courts must take strong measures to ensure that the balance is never weighed against the accused,” Colucci wrote in the memorandum. “Where there is a reasonable likelihood of prejudicial news that will prevent a fair trial, a trial court needs to take action to remedy the problem.”
Colucci argued the usual remedies — continuing a case, moving to another division — don’t have any practical value in Hanley’s case because Batista released the actual evidence to the major news organizations covering Rhode Island. Those media outlets could play the videos repeatedly, prejudicing the case, Colucci argued.
“The bell has already been rung and it will continue to heard no matter when and where this matter is tried,” he wrote.