Former SWAT Officer who pepper-sprayed protesters will be tried outside of Philadelphia, a judge said, citing juror bias

The retrial of former Philadelphia SWAT Officer Richard P. Nicoletti will take place in a courtroom outside of the city, a judge ruled Wednesday.

Common Pleas Court Judge Roxanne E. Covington said the high-profile nature of the case, extensive news coverage, and an inaccurate statement from the District Attorney’s Office could compromise Philadelphia jurors’ ability to fairly weigh whether Nicoletti acted criminally when he pepper-sprayed three demonstrators during the city’s 2020 racial justice protests.

Following a mistrial earlier this year, Nicoletti’s defense lawyers contended that in order to have a fair trial in October, the case should be moved to a courtroom outside of Philadelphia. The city’s jury pool was compromised by the tense and sensitive nature of the city’s protests and riots in 2020, they said, as well as the numerous media reports and a misstatement from officials in the DA’s Office.

Attorney Charles Gibbs said nearly a third of the prospective jury pool in Nicoletti’s first trial in May had acknowledged bias on the issue of police conduct, and most were aware of Philadelphia’s protests, riots, and police response. Gibbs shared with the judge a thick stack of news articles written about Nicoletti, the incident, and the previous trial, arguing that the media has “run the gamut” on Nicoletti and equated him to a “Rizzo cop.”

“Mr. Nicoletti should not be a referendum on policing, he should not be a referendum on protests,” Gibbs said. “Pretrial publicity has hampered Mr. Nicoletti from having a fair trial.”

The judge agreed. City residents’ strong sentiments on policing and the media coverage played a part, she said.

She also cited a statement a spokesperson for the District Attorney’s Office had sent to reporters ahead of opening statements in May. In an email, the spokesperson, Jane Roh, incorrectly wrote that Nicoletti was responsible for “teargassing protesters” on I-676.

Nicoletti, 37, was not responsible for the widespread deployment of teargas on the highway, but instead pepper-sprayed three demonstrators who were sitting on the highway amid the melee.

“If this came into my hands, how many other individuals’ hands could it have been in?” Covington asked about the email, questioning whether it may have led to inaccurate media reports.

She said she had ordered Roh to appear in court to address the error and issued a gag order in the case. She said publicity in the case, partly resulting from the misstatement, could be inflammatory and lead to juror bias, and she said that was reason to move the trial.

Roh and the DA’s Office declined to comment Wednesday.

Assistant District Attorney Joshua Barnett argued that just because jurors have knowledge of the incident doesn’t mean they cannot be unbiased in weighing the facts of the case. He said the news coverage of the incident and pictures and videos of Nicoletti spraying the protesters simply depicted what happened. And in the previous trial, he said, some of the prospective jurors had expressed bias toward Nicoletti, not against him.

Still, Covington sided with the defense.

“Based upon the pool, the environment, the myriad of articles, and the necessity of the gag order, the court grants the change of venue,” she said.

Wednesday’s decision is just the latest chapter in an incident that attracted national attention and turned into a legal battle in both civil and criminal courts. In March, the city agreed to pay $9.25 million to hundreds of plaintiffs who had sued over the Police Department’s use of force during the protests, which lasted several days.

Nicoletti is one of two officers to face criminal charges for their behavior during the 2020 protests following the police murder of George Floyd in Minneapolis. Prosecutors have argued that Nicoletti’s use of pepper spray — at point-blank range and into three demonstrators’ faces — was unnecessary and beyond the scope of his duties as an officer. Video shows Nicoletti pulled down one woman’s goggles to spray directly into her eyes, then spray the others and shove one man to the ground.

He’s been charged with simple assault and reckless endangerment.

“This was not immediately necessary — the defendant did not have to do it,” Assistant District Attorney Brian Collins said in May. “He made a choice, and a decision, to do it.”

Nicoletti’s lawyers argued that his use of the spray was pre-approved by his superiors — including Police Commissioner Danielle Outlaw — making it a tool he was allowed to use while seeking to defuse a dangerous situation and get protesters off a highway.

“He was justified in what he did,” Fortunato Perri Jr. told jurors in May. “There is zero evidence that he did anything other than his job.”

Covington did not say where the trial would occur. It is set to begin Oct. 16.