Joe Bologna's Lawyers Seek To End D.A.'s 'Despicable' Prosecution

By Ralph Cipriano
for BigTrial.net

The District Attorney of Philadelphia is not supposed to be just an advocate; he's also supposed to be a minister of justice.

According to Rule 3.8 of the American Bar Association's Model Rules of Professional Conduct, a prosecutor has a "special responsibility" to see to it that a defendant is "accorded procedural justice," and that guilt in a criminal case is "decided upon the basis of sufficient evidence." 

The ABA also requires that a minister of justice “refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.”

In Philadelphia, however, District Attorney Larry Krasner has made a habit out of ignoring his responsibilities as a minister of justice whenever he indicts a police officer. Or as the lawyers for former Staff Inspector Joe Bologna have described it, there's a "disturbing and despicable trend on the part of the Philadelphia’s District Attorney’s office to bring criminal charges against police officers without proper investigation and without sufficient probable cause."

That's why Fortunato Perri Jr. and Brian McMonagle went to court last week to file a motion on behalf of Bologna, asking a Common Pleas Court judge to deny Krasner's motion to refile criminal charges against the former staff inspector when his case comes up again in court on June 30th.

At a Jan. 15th preliminary hearing in Municipal Court, a judge dismissed charges that Krasner had previously filed against Bologna, 54, that included reckless endangerment, possession of an instrument of crime, and felony aggravated assault.

Bologna was accused of striking a protester, Evan Gorski, in the head with his extendable metal baton known as an ASP. According to the D.A., Bologna's ASP was the department-issued instrument of crime that inflicted wounds on Gorski's head requiring 10 staples and 10 sutures.

The only problem was that evidence gathered by both Bologna's lawyers and the D.A.'s office itself completely disproved Krasner's theory of the crime. But that didn't stop the cop-hating D.A. from refiling those same charges against Bologna. 

In the Jan. 15th hearing before Judge Henry Lewandowski, III, the D.A. called Gorski to the stand, who testified that he believed his injuries were caused by being struck by Bologna's ASP.  The defense then rebutted Gorski by playing a slow-motion video of the alleged crime to Judge Lewandowski, a video that Bologna's lawyers broke down frame by frame. 

"The video presented by the defense clearly showed that the ASP deployed by Staff Inspector Bologna never came into contact with the complainant’s head but in fact landed on a backpack being carried by the complainant on his shoulder," Bologna's lawyers wrote.

The defense then called as witness Sgt. Kenneth Gill, the lead use of force instructor for the Philadelphia Police Department. Gill testified that the use of force displayed by Staff Inspector Bologna in the video was “absolutely justified” under the Philadelphia Use of Force Directives, specifically Section 10.123, which permits the use of the ASP if a person is grabbing a police officer.

After Sgt. Gill got through testifying, the judge criticized the D.A.'s office from the bench.

“When I heard from the expert, I was surprised that the Commonwealth didn’t bother to talk to the expert, who is a Commonwealth employee, or have another expert [testify] on this very sensitive issue of force," the judge said. "But having heard from the only two witnesses that testified today, I find that the Commonwealth has not met it’s burden on any of these charges.”

A report by an expert witness for the D.A.'s office came to the same conclusion as the defense's expert witnesses, that Bologna never struck Gorski in the head with his ASP.  

“In summary, based upon my review of these materials, Staff Inspector Bologna struck Mr. Gorski in the left upper back with the ASP," wrote Dr. Sam Gulino, the city of Philadelphia's medical examiner. "As both of them went to the ground, Bologna’s bicycle helmet made contact with Mr. Gorski’s head, causing the scalp laceration.”

"The video evidence along with Sgt Gill’s testimony and Dr. Gulino’s report demonstrates the complete impossibility that Staff Inspector Bologna struck the Gorsky in the head with the ASP, and the continued efforts by Mr. Krasner to proceed with this prosecution is a violation of Mr. Bologna’s civil rights," Bologna's lawyers wrote in their motion filed last week. 

In their motion, Bologna's lawyers described the chaotic scene that the former staff inspector was involved in that day, as commander of the police bicycle patrol. 

"On June 1, 2020 the City of Philadelphia was under siege as a result of rioting, violent protests, fire bombings of police cars, looting, vandalism, and assaults," Bologna's lawyers wrote. "Approximately, 1,500 protesters were marching in Center City, and they began to walk eastbound on the parkway towards 22nd Street and the parkway. The protesters began to throw rocks, water, frozen water and began punching and grabbing the bikes of police officers."

"The protesters knocked down barriers and began swarming onto Interstate 676," Bologna's wrote. The protesters "began stopping vehicular traffic on 676, jumping on the top of vehicles, and ignoring police orders to evacuate the area. The Pennsylvania State Police, and the SWAT Unit of the Philadelphia Police department intervened along with both foot and bike patrol officers of the Philadelphia Police department."

"At approximately 6 p.m., one of the protesters, Evan Gorski, grabbed a police officer who was arresting another protester," Bologna's lawyers wrote.

"Upon observing Gorski physically interrupting the arrest, Inspector Bologna swung his ASP at Gorski, striking him on his backpack which was secured to his back. Gorski then fell to the ground seizing Bologna’s ASP and throwing it to one of the other protesters."

"Gorski was taken into custody and treated for a cut to his head which required stitches," Bologna's lawyers wrote. "Almost immediately, a disquieting series of events unfolded in which the Philadelphia District Attorney’s office intervened in the arrest and authorized Gorski’s immediate release."

Krasner then went off half-cocked, according to Bologna's lawyers, and immediately indicted Bologna. 

"District Attorney Larry Krasner authorized the arrest of Inspector Bologna and held a press conference proudly announcing these charges without awaiting the results of the investigation of the incident," Bologna's lawyers wrote. 

"Specifically, the District Attorney’s office prepared their own warrant (a) prior to any investigation by the Internal Affairs Unit, and (b) without carefully examining a video which clearly shows that Inspector Bologna’s ASP did not strike the head of Mr. Gorski."

"After Inspector Bologna’s arrest, the defense learned that the actual criminal investigation of the incident by the Internal Affairs Division involved a careful examination of the video and a review by a use of force expert, all of which demonstrated that Inspector Bologna was innocent of all charges," Bologna's lawyers wrote.

"Despite the fact that the Commonwealth of Pennsylvania was, or should have been aware of the results of the investigation which established Bologna’s innocence, the District Attorney’s office made an insidious attempt to proceed with the prosecution of the defendant," Bologna's lawyers wrote. 

"We are trying to be fair," Krasner claimed at the time in a statement to the media. "Accountability has to be equal, and this moment demands a swift and evenhanded response to violent and criminal acts."

But nobody is holding Krasner accountable for violating the duties and ethical responsibilities of his office.

According to Bologna's lawyers, even though Krasner has refiled the charges against Bologna, the case should not go forward because "It it is clear that Judge Lewandowski correctly determined that there was insufficient evidence to hold the defendant on any of the charges."

Krasner and Bologna have a history. When Krasner was a criminal defense lawyer who sued the Philadelphia Police Department 75 times, Krasner represented many drug dealers who had been arrested by Bologna's officers, when Bologna was head of the Eastern Division of the police department's Narcotics Field Unit.

Last month, a second judge threw out charges Krasner filed against a second cop on duty during the George Floyd riots, former SWAT team member Richard Nicoletti.

In a preliminary hearing in Philadelphia Municipal Court, Judge William Austin Meehan found that on June 1, 2020, that Nicoletti had been authorized by his commanders to clear the Vine Street Expressway of protesters, who were illegally blocking the highway during rush hour.

Krasner charged Nicoletti with simple assault, reckless endangerment, official oppression, and possession of an instrument of crime, namely department-issued pepper spray. 

The judge found that Nicoletti had been given the pepper spray by his superiors as a tool to use on the protesters.

"You may not like their methods, that doesn't criminalize their methods," the judge was quoted in The Philadelphia Inquirer as saying. "You can't put [cops] in charge of maintaining order, and then tie their hands on how they're going to do it."

As he did with Bologna, Krasner immediately refiled the charges against Nicoletti.

As he did with Bologna, Krasner also has a history with a police officer named Richard Nicoletti, only it wasn't the SWAT team member, it was his father. 

In 2018, the state attorney general's office decided that no charges would be filed against Officer Richard Nicoletti, the father of the SWAT team member, after the elder Nicoletti shot and killed Jeffrey Dennis.

At the time, Dennis was trying to escape from the cops, who wanted to search his car, when Dennis's vehicle struck another officer. 

Krasner, who was Dennis's lawyer when he was facing drug charges, did not prosecute the case against the elder Nicoletti because of a conflict of interest. 

During his first four years in office, Krasner has indicted 51 cops for allegedly committing felonies. To date in these cases, Krasner has a perfect score, zero felony convictions out of 51 felony indictments.

 In four years, Krasner hasn't been able to convict one of those 51 cops of a felony. 

All Krasner's office has been able to do has been to convict three cops of misdemeanors. All three cops got probation. A fourth cop was admitted into an Accelerated Rehabilitation Development [ARD] program. 

As the losses keep piling up in his war on cops, Krasner has been personally implicated in prosecutorial misconduct.

In March, Greg Pagano, a lawyer for former Chief Inspector Carl Holmes, filed a motion in Common Pleas Court to disqualify Krasner as prosecutor for his continuing vendetta against Holmes. 

As a defense lawyer in 1996, Krasner represented Christopher Butler, the convicted robber of a 7-11 who pointed a gun at Holmes, and was found guilty of assaulting him. Butler got 6 to 12 years for the robbery.

But Krasner also represented Butler in a civil rights suit against the city, claiming that after Butler robbed the 7-11 and pointed a gun at Holmes, Holmes used excessive force against Butler by shooting him seven times. The civil rights suit was settled in 1997 for $80,000.

"Philadelphia District Attorney, Lawerence Krasner, failed to notify this Court, Supervising Grand Jury Judge, the investigating grand jurors and defense counsel of his role in the criminal trial, post-trial, criminal appeal and civil cases, directly related to the testimony and credibility of Carl Holmes," Pagano wrote. 

"Under the Pennsylvania Rules of Professional Conduct, DA Krasner has a duty to disclose that which is material to a defendant’s innocence. Mr. Krasner’s role as defense counsel to Mr. Butler in criminal and civil proceedings, attacking Mr. Holmes’ credibility and police work constitutes Brady/Giglio material," Pagano wrote, referring to evidence that must be turned over to the defense.

A hearing on Pagano's motion to dismiss the D.A.'s office as prosecutor in the Homes case was continued last month. 

Congratulations, Philadelphia voters. This is the reckless and unethical district attorney that you just rewarded at the polls by giving him four more years in office. 

We're talking about a corrupt individual who acts as though he's above the law. A D.A. who is shamelessly using his position as the city's highest ranking law enforcement officer to settle petty old scores against cops that he feuded with.

And all of this is being done under the guise of progressive reform, without a hint of protest from the media.