PROVIDENCE, R.I. (WPRI) — An assault charge against a Providence sergeant should not be dismissed because a civilian released the body camera footage of the incident, state prosecutors argued in a new filing in Providence District Court.
The attorney for Sgt. Joseph Hanley, who is accused of assaulting Rishod Gore during an arrest back in April, had filed a motion to dismiss the case last month after the head of a civilian oversight board unilaterally released body camera footage of the alleged assault.
The attorney, Michael Colucci, argued the case is now “tainted” because a key piece of evidence is out.
But in a response filed Friday, R.I. Attorney General Peter Neronha’s office said the existence of pre-trial publicity does not automatically mean the defendant cannot get a fair trial, and pointed out that videos are frequently released prior to trial in police use-of-force cases.
“Given the state of social media, the ubiquity of cellphone videos and body worn camera videos that make their way into the public domain hours if not minutes after incidents take place, acceding to a motion like the one brought by the defendant means that motions to dismiss would become the norm rather than the exception,” special assistant attorney general Michael McCabe wrote in the filing.
McCabe noted that “public demand” for transparency “might warrant pretrial release of body worn camera video, particularly where public unrest might become an issue.”
The Hanley video was kept under wraps by the city for months, and public records requests for its release were denied because of the ongoing criminal case. But the Providence External Review Authority (PERA), a civilian oversight board, obtained the video by subpoenaing Providence Police.
The board viewed the video in private and voted not to release it. But Jose Batista, then-executive director of the board, released it publicly anyway, sparking Hanley’s team to ask a judge to toss the case.
“The bell has already been rung and it will continue to be heard no matter when and where this matter is tried,” Colucci wrote in asking for the dismissal.
But McCabe cited several examples of high-profile cases where video and other evidence was publicly seen prior to trial, including in cases that received more news coverage than Hanley’s.
“The question is not whether there has been any publicity,” McCabe wrote. “The question is whether that publicity has been so inflammatory and pervasive as to negate the possibility of an impartial fact finder.”
Judge Brian Goldman has set a hearing date to consider the motion to dismiss for Dec. 17.
Prosecutors say in the midst of arresting Rishod Gore in April, Hanley “proceeded to punch and kick Gore, kneel and bounce on Gore’s head, and ultimately step on Gore’s legs.”
The assault charge was filed in May after prosecutors reviewed both the body camera footage and a cell phone video taken by a civilian. Hanley has pleaded not guilty to the crime, and the city reached a $50,000 settlement with Gore.
Despite the potential effect on the criminal case, Batista has continued to defend his decision to release the video, writing in a recent Providence Journal op-ed that he only regretted not doing it sooner.
He has also noted that he was fired by the PERA board just days after he released the video, while Hanley remains employed because of due process protections laid out in the Law Enforcement Officers’ Bill of Rights (LEOBOR), despite the city’s stated desire to fire Hanley.
Hanley was paid for the first six months of his suspension, in accordance with LEOBOR, and is now on unpaid suspension. (He retains his medical benefits.) Hanley has filed a separate civil action seeking the restoration of his pay.
PERA is scheduled to meet Monday night to discuss replacing Batista and other matters including the status of its ongoing investigations.