Essex County prosecutors urge SJC to keep North Andover officer behind bars
Prosecutors in the Essex County District Attorney's office are asking a single justice of the Supreme Judicial Court to keep Kelsey Fitzsimmons behind bars, absent her compliance with court-mandated alcohol testing.
Fitzsimmons, 28, a North Andover police officer, is accused of pointing a gun at a fellow officer on June 30 , when officers arrived at her home to serve her a restraining order taken out by her fiancé . The order required Fitzsimmons to turn over her guns and separated her from her infant son.
What happened inside the home is a question at the heart of the case against Fitzsimmons. Police say she pulled out a gun and tried to fire it at an officer, leaving him with no choice but to shoot Fitzsimmons. Fitzsimmons, through her lawyer, Tim Bradl, has said she attempted suicide .
Fitzsimmons was eventually indicted on a single charge of assault with a dangerous weapon in connection with the incident. A grand jury returned a no-bill on a charge of armed assault with intent to murder, meaning it did not find sufficient evidence to support the claim that Fitzsimmons tried to kill a fellow officer.
The 28-year-old was released on numerous conditions following a pair of hearings, though a judge determined she was a danger, but then sent back to jail days later when she raised issues with court-ordered alcohol testing.
Fitzsimmons' attorneys wrote in court papers that her injuries from being shot made it difficult for her to breathe into a testing device without serious pain. They asked the superior court judge, Kathleen McCarthy-Neyman, to reconsider the order sending Fitzsimmons back to jail, but the judge denied the motion .
Fitzsimmons' defense has petitioned a single justice of the SJC to overturn the lower court's decision.
But prosecutors argue that the judge did not err when she determined abstinence from alcohol was a key condition of release for Fitzsimmons.
Their motion notes that Fitzsimmons' fiancé claimed she got "heavily intoxicated" at a bachelorette party in Maine just days before the incident, and she refused his requests to stop drinking. One of Fitzsimmons' friends from childhood confirmed she had been drinking and her actions were "erratic and violent," prosecutors wrote.
"Alcohol is so clearly intertwined with the defendant's ability to control her behavior," the motion reads.
Prosecutors accused Fitzsimmons and her lawyers of taking a "cavalier approach" to the removal of the condition of alcohol testing. They also backed McCarthy-Neyman's claim that Fitzsimmons' team "manipulated the process."
There is "no explanation for [Bradl's] failure" to question a parole officer about alternative testing or to "mention the possibility to the court when given ample opportunity," Assistant District Attorney Marina Moriarty wrote.
Moriarty suggested it was a "reasoned tactical decision by a seasoned defense attorney seeking to release the defendant from alcohol testing entirely."
In a footnote, prosecutors write that urine testing, as proposed by Bradl, "seems an unreliable means of confirming sobriety when the individual is informed in the morning that they will not be tested that day."
"There would be no disincentive not to drink that day when they are aware that they will not be subject to testing," prosecutors wrote.
Following the birth of her son, Fitzsimmons suffered from postpartum depression and was briefly involuntarily committed. But she had recently won her gun license back and was set to return to work just days after the "armed confrontation" with other officers in her department.
More about the case
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