Full bench of Supreme Judicial Court to review Kelsey Fitzsimmons' appeal
The full bench of the Supreme Judicial Court agreed Tuesday to consider Kelsey Fitzsimmons ' appeal of the order jailing her, but denied a request from her lawyers for an in-person hearing as premature.
Fitzsimmons, 28, a North Andover police officer, is charged with a single count of assault with a dangerous weapon in connection with an incident on June 30. That night, police arrived at her home in North Andover to serve her a restraining order obtained by her fiancé . Fitzsimmons is accused of pointing a gun at a responding officer , who shot her in the chest. She claims she attempted suicide .
A superior court judge allowed Fitzsimmons' release on strict conditions after her arraignment in September , but reversed her order and sent Fitzsimmons back to jail after her attorneys said she could not complete court-mandated alcohol testing without pain.
Fitzsimmons and her lawyers have repeatedly challenged the judge's order, first filing a motion for reconsideration , then appealing to a single justice of the SJC , and now a ppealing to the full bench .
In its order Tuesday, the SJC said it was persuaded her appeal should proceed.
"As Fitzsimmons has no other means of obtaining adequate appellate review of the pretrial detention order, this appeal may proceed with full briefing in the ordinary course," the court wrote in its order.
Fitzsimmons' lawyers have sought expedited review of her appeal and an in-person hearing. The court denied the request for oral argument as premature without further briefing, but indicated it could fast-track the case.
The order does not address the substance of the appeal.
"We express no view on the merits of Fitzsimmons's claims at this preliminary juncture," the court wrote.
In the appeal, attorneys Tim Bradl and Martha Coakley contend that the single justice did not look at the merits of Fitzsimmons' specific case, but instead reviewed the lower court decision on a narrower standard for abuses of discretion.
"The single justice ... did not appear to examine the propriety of the bail issue itself at all," the filing reads. "The justice also gave full abuse of discretion deference to the trial court's [dangerousness] finding, the harsh conditions, the surprise incarceration, and the completely unnecessary adherence to the at-home SCRAM breath test."
Fitzsimmons' lawyers are asking the full SJC to address the bail issue and to release Fitzsimmons on either her own recognizance or with terms agreed upon by her, without finding her dangerous. If the court determines Fitzsimmons is a danger, it should grant "non-incarcerative relief," the filing reads.
They also ask the SJC to put the case before a different judge, adding in a footnote that it is "imperative for this court to listen to the recording of the trial court bail hearing. "
"No reasonable listener can reach the conclusion that the court approached the matter impartiality [sic]," the filing reads, noting that Bradl was not given the opportunity to be heard after McCarthy-Neyman ordered Fitzsimmons detained.
The memo notes that Fitzsimmons was forced to cancel what would have been her fifth surgery when McCarthy-Neyman refused to allow her to remove her GPS bracelet for the operation.
Essex County prosecutors have not yet filed their own brief with the full bench.
But in the memo they filed with the single justice, 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."
The restraining order obtained by Fitzsimmons' fiancé required her to turn over her guns and separated her from her infant son. In it, he claimed she had assaulted him and threatened their son.
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.
A hearing in her case is scheduled for later this month, when a trial date is likely to be set.
More about the case
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