The District Attorney argued that it would cause protests — the arresting officer argued that it would exonerate him.
The video in question, released last week, did little towards either.
Following a months-long court battle between attorney Matt Toporowski and the Rensselaer County District Attorney’s Office, Troy City Court handed down an order to release video of local activist Kenneth Zeoli’s arrest. The DA’s office had previously filed a protective order to try and shield it from public view. Rensselaer County District Attorney Mary Pat Donnelly argued that releasing video of the arrest would “try this case in the court of public opinion.”
At the center of the controversy is whether Zeoli was intentionally injured by Troy Police officers during a forceful arrest, as he has claimed.
In a press release, the DA’s office said — “The new discovery laws were established to protect the rights of the defendant by providing transparency between the files maintained by the police and the prosecutors and the accused and their attorneys. My office has and will continue to follow not only the letter of the law, but also the requirements of fairness and prosecutorial ethics which dictate that we provide the video to the defendant and his counsel.”
Toporowski said that the DA’s office then distributed the video to select media outlets, including WNYT, before he received a copy.
In the video, Zeoli is seen being placed under arrest and led into an isolation cell. Officers do not respond when he asks what he’s being charged with, and when he asks to speak to his attorney, the officer responds, “You have the right to remain silent. I’m not discussing this with you.”
As officers are leaving, Zeoli asks when he will see a judge. An officer begins to respond “Oh, we’re going to take our…” when audio cuts out for the only time in the recordings. The DA’s office claims there were no manipulations of the files sent directly to their office from the police department. “What you see, and hear, is what you get,” said Chief Assistant District Attorney Matthew Hauf.
Shortly after officers leave, Zeoli drops to the floor of his cell for what he and his lawyer say was a seizure. Toporowski points to his client’s health records showing PTSD, anxiety disorder, and past treatments for seizures. After his apparent seizure, Zeoli’s cries for medical attention go unanswered for nearly two hours. At one point an officer enters the cell and searches Zeoli and discovers marijuana. At another point, an officer enters and tells him to “stop playing his games” and sit back on the bench.
Eventually Zeoli is moved to another holding cell, where he repeatedly tries to talk to another woman in custody who appears to be meeting with an arraignment judge, referring to her as “sweetheart” multiple times.
Following his booking, an officer leaves Zeoli with a warning: “So you’ve been warned to not come back to the police station, right? You’ve been warned. I’m not asking you a fucking question if you’ve been warned, you have been warned. So don’t come back to the police station. If you have business, like some complaint form which you don’t deserve, you can contact my captain by phone. But don’t come to my desk, you’ll immediately get arrested.”
According to Toporowski, he believes the officer was speaking without a court order to enforce such a warning.
“It didn’t exist then and it doesn’t exist now. I’ve never seen something like that for a public place like a police station,” he said. “So I think that was just the officer’s opinion, and potentially, that’s what he’s basing this charge on. Which I think could be problematic.”
The full video is posted below, condensed to an hour long. Portions containing the allegations are at normal speed with audio.
Before the release of the video, arresting officer Sgt. Sean Kittle took to Facebook to publicly express his opinion and claimed that the video would exonerate him.
In his post, Kittle claims the video will show Zeoli “drive his shoulder into the bench inside the cell”, which it does not appear to. Kittle also doubts Zeoli’s claim that his seizures were real and points to his EMT training as reason to back up his claim. However, the video does not appear to show that Kittle witnessed any of the possible seizure episodes firsthand, and EMT training does not include diagnosing seizure disorders, only responding to episodes through basic medical care before transporting a patient to the hospital.
Ignoring a person’s cries for help while in custody could set a dangerous precedent, according to Toporowski. “Let’s say that they decide, Hey, the person doesn’t need it. Then next thing you know, the person tanks,” he said. “That’s gonna be a liability right at their feet.”
Toporowski believes there may be more footage that would be helpful to his client. He’s interested to see what may have happened beyond a door at the end of the hallway between the time Zeoli was cuffed and entered the secure area. He also plans to request a site visit to see that area for himself.
In a video titled “Booking Hallway North”, within seconds of the start of the clip a loud noise can be heard from the other side of that door, followed by Zeoli yelling “He’s beating me up! I’m not resisting!” The commotion appears to get an officer to rush to the other side of the door. That portion begins at 16:13.
For Toporowski, getting access to the full video and audio of his client’s arrest has only drawn out a case he sees as unnecessary use of force.
“If they just gave him that complaint form, this wouldn’t be an issue,” he said, speaking about Zeoli’s original trespassing arrest after he arrived with others at Troy Police Headquarters on August 21st to complain about the department removing chairs from Barker Park.
Zeoli and other community members have organized community support for homeless residents staying at Barker Park. The city has responded by clearing the park of chairs and belongings.
“Why was he singled out?” Toporowski asked, referring to the fact that no one else with him the lobby that day was arrested.
The court of public opinion appears to be turning against Zeoli — people involved with those conversations say some local Black Lives Matter activists felt torn between highlighting issues surrounding mistreatment at Barker Park and the ability for citizens to seek a complaint form from police. Some are also troubled by the fact that a Black movement against police brutality is experiencing “white-centering” by Zeoli, who is white.
Others took issue with the attention Zeoli has sought since the encounter, including immediately after his arrest when he made a plea online for protesters to show up outside the station in support. Those that answered that call said they now feel betrayed after seeing video clips that they believe don’t justify Zeoli’s reasons for them to rush to his defense.
The DA’s office follows an archaic practice of distributing files on DVD discs that can only be viewed through a program accessible on Windows operating systems. Without using that program, videos play at a faster speed without audio. “This is the issue with giving the media and the attorney different versions or copies of the same thing,” Toporowski said.
As he was being released from the building after his booking, an officer could be heard speaking to Zeoli one last time.
“Go on out there to your cheering crowd and all your reporters,” he said.
Patrick’s work has been published internationally, including on the front pages of the New York Times and Wall Street Journal. After a 10 year career in journalism and marketing, he is now pursuing a Masters in Public Administration. He launched Albany Proper in 2012.