Former corrections officer guilty in mixed jury verdict
February 1, 2013 5:00 AM
Harry F. Nicoletti Jr. leaves the courthouse Thursday.
By Rich Lord Pittsburgh Post-Gazette
A jury's finding Thursday that former corrections officer Harry F. Nicoletti Jr. is guilty of 27 criminal counts stemming from abuse of inmates sets the stage for progress on seven lawsuits in which he is the defendant -- but in which state coffers are the target.
Mr. Nicoletti, 61, of Coraopolis, was found guilty of 12 counts of official oppression, eight of simple assault, three of criminal solicitation, three of indecent exposure and one of terroristic threats.
He was found not guilty on 52 counts, including all 26 of the sexual allegations he faced. The jury hung on one charge -- an allegation that he brought contraband medication into the State Correctional Institution Pittsburgh, where he worked on F Block for much of his 10-year career with the state.
The verdicts came in a trial that was the centerpiece of a wide-ranging investigation of guard misconduct, largely during 2010, on F Block.
Mr. Nicoletti is set to be sentenced on March 27, by Allegheny County Common Pleas Judge David R. Cashman. The defense attorney, Steve Colafella, said just one of the criminal solicitation charges was a felony, and the other 26 misdemeanors. He added that the judge can impose consecutive or concurrent sentences on the counts for which the jury found guilt.
Assistant district attorney Jon Pittman, who has handled the prosecutions of seven officers accused of abusing F Block inmates, said the verdict was "no reflection on the hardworking corrections officers we have in the state system." The case's message, he said, was that "the laws of the commonwealth apply everywhere. ... Everyone, including inmates, has protection under the law."
Mr. Colafella said that the not guilty findings on the most serious charges partially backed his courtroom contention that a Department of Corrections investigation that started with one inmate's allegation "spun out of control."
"There were some very, very serious charges and the allegations, if you heard them, were horrific," Mr. Colafella said, adding that the verdict if the jury believed those accusations "could've been substantially worse."
Some inmates alleged sexual acts by Mr. Nicoletti ranging from demands of masturbation to rape, but Mr. Colafella suggested at trial that those accusers lacked credibility and may have compared notes.
The Pittsburgh Post-Gazette and Public Source reported in March that the seven prosecutions were based almost entirely on inmate testimony, and featured no physical or video evidence. One former corrections officer, Curtis Hoffman, has testified that Mr. Nicoletti led a group of guards who identified inmates perceived as pedophiles and harassed them. Mr. Hoffman, though, said he did not witness any of the most egregious acts alleged by inmates.
Among the charges for which the jury found guilt were three of the six counts based on testimony by the first victim to come forward. Jerry Lynn Shoemaker, 42, of Pittsburgh, who is serving time for rape of a child and related charges, said that Mr. Nicoletti berated and slapped him, and demanded manual stimulation before slapping the prisoner's hand away.
The jury convicted Mr. Nicoletti on charges of terroristic threats, indecent exposure and official oppression stemming from Shoemaker's testimony, but exonerated the former guard on two related counts of criminal solicitation and one of simple assault.
That was one of several examples of the jury finding some of an inmate's accusations credible, and others not. For example, they found Mr. Nicoletti guilty of official oppression, but not guilty of three counts each of involuntary deviate sexual intercourse and institutional sexual assault, in regards to allegations by a former inmate who is transgender.
In the case of another former inmate, who said Mr. Nicoletti repeatedly demanded to be masturbated, the jury found guilt on charges of criminal solicitation, indecent exposure and official oppression, but not on the sexual counts.
Jurors declined to talk about the case as they left the courthouse. The five men and seven women listened to 11 days of sometimes graphic testimony and deliberated from Friday through Thursday morning.
Department of Corrections spokeswoman Sue McNaughton said Thursday that the state hopes the "decision will provide some closure to the victims of this case."
"We want to stress that this individual's actions are not reflective of the great work the staff at SCI Pittsburgh do on a daily basis," she added.
That's also the state's argument in the seven lawsuits in federal court by former SCI Pittsburgh inmates, some filed anonymously, and most highlighting the most serious alleged abuses. Attorneys for the state have taken the position that Mr. Nicoletti was not doing his job when abuses took place, and so they have no obligation to defend him in civil court, nor to pay any damage awards.
"I think the specific acts that form the basis of those lawsuits were sexual in nature," Mr. Colafella said. "Those suits should be dead in the water from my perspective."
Not true, said attorney Steve Barth, who represents four of the inmates who are suing.
The verdict "allows the plaintiffs in those cases to now depose Nicoletti," as well as Mr. Hoffman and others, said Mr. Barth. He said testimony at the trial, and at a previous trial of former officer Tory Kelly, shows that prison staff "knew what was going on and took a blind eye to it," meaning the state could be liable.
Attorney Jon Pushinsky represents inmate Randy Jones, whose testimony spurred two of the guilty verdicts against Mr. Nicoletti and four against another former officer, Tory Kelly, 41, of Aliquippa, who was tried in December. Jones, 24, of Verona, pleaded guilty in 2010 to involuntary deviate sexual intercourse with a child, and said that after Mr. Nicoletti and Mr. Kelly found that out they hit and threatened him.
Mr. Pushinsky said that any juries to hear the civil cases will be told to presume the truth of allegations for which the criminal jury found guilt. The argument, as regards those allegations, will focus on damages, rather than liability.
Where the criminal jury reached a not guilty verdict based on reasonable doubt, plaintiffs' lawyers can still try to show liability based on the lower preponderance of evidence standard used in civil court, he said.
Mr. Kelly was found guilty of four of 14 charges, and is to be sentenced March 20. Three officers have seen all charges against them dropped or dismissed, and two others await trial.
Though Mr. Pittman argued for immediate detention, Judge Cashman allowed Mr. Nicoletti to remain on bond until sentencing.
Mr. Nicoletti, who has been accompanied by family and friends throughout the legal process, left the courthouse without comment.
Mr. Colafella said he thought it was "a relief" to his client to hear so many not guilty verdicts, and held out hope for a sentence of probation or a stint in county jail. "It's been very humiliating for him," he added.