Lawyers blast judge's 'injudicious behavior' in North Andover officer's case
Lawyers for Kelsey Fitzsimmons , a North Andover police officer charged after she was shot by a coworker in June, are asking the state's highest court to release her from custody .
Fitzsimmons, 28, is accused of pointing a gun at a fellow officer delivering a restraining order taken out by her fiancé during what officials have dubbed an "armed confrontation."
Last month, a judge allowed Fitzsimmons' release on myriad conditions. However, she reversed her order and sent Fitzsimmons back to jail after she complained of pain — due to her injuries — during court-mandated alcohol testing.
In their appeal to the state's Supreme Judicial Court, Fitzsimmons' lawyers blasted Judge Kathleen McCarthy-Neyman's decision to revoke Fitzsimmons' release and to deny a motion for reconsideration .
At the Sept. 11 hearing, Fitzsimmons and her lawyers were "greeted with hostility, interruptions, obtuse posturing, presumptive skepticism, willful blindness as to the availability of other methods of testing, and grossly injudicious behavior, culminating in the court walking off the bench during the middle of argument."
That hearing was convened after Fitzsimmons' lawyers, Timothy Bradl and Martha Coakley, filed a motion seeking relief from court-mandated SCRAM testing, which required Fitzsimmons to blow into a device to test for alcohol. Fitzsimmons could not do so without immense pain due to her gunshot injuries, according to her lawyers and affidavits submitted by her and her mother.
The probation officer assigned to her case wrote in an email that he observed Fitzsimmons in pain while attempting to complete the testing.
But McCarthy-Neyman found that if Fitzsimmons could not or would not complete the required testing, there were no conditions that could ensure the safety of the community should she be released.
The filing with a single justice of the SJC asks for a decision on the bail issue, to grant Fitzsimmons' release without a finding that she is a danger or release on conditions, and to send the case back to Essex Superior Court before a different judge.
Officers arrived at Fitzsimmons' home in North Andover on June 30 to serve her a restraining order obtained by her fiancé . In an affidavit supporting the order, Fitzsimmons' fiancé said he had been assaulted by her over the weekend and he feared for the life of their newborn son.
Fitzsimmons was set to return to her job as a police officer that week, after a bout with postpartum depression that included a brief involuntary commitment.
But an officer serving the order, Patrick Noonan, shot Fitzsimmons once in the chest. A police report filed in court claimed Noonan fired the shot only after Fitzsimmons retrieved a gun and attempted to fire it at him.
Fitzsimmons denies doing so and says she was trying to take her own life, staring down the prospect of being separated from her son. A grand jury found no evidence she intended to kill Noonan, indicting her only on a charge of assault and battery with a dangerous weapon.
That charge makes her a candidate for a probationary sentence as a first-time offender. Instead, Fitzsimmons' release was akin to that of a "career violent offender looking at years in prison," the SJC filing reads, noting that her release came only after "substantial delay by the court micromanaging the release plan while she remained incarcerated."
There is no justification for the "judicial declaration that Ms. Fitzsimmons, a police officer and former corrections officer, must be locked up with no possible alternative as a danger to society and to the armed and trained police officer who almost killed her," the filing reads. "The trial court's order is as heartless as it is legally baseless, and must be reversed."
Bradl has lobbied McCarthy-Neyman to consider an alternative form of alcohol testing for Fitzsimmons. To that end, a probation officer suggested she could undergo urine testing at a facility near her parents' home in Methuen, where she was released to.
But McCarthy-Neyman shut down the possibility of testing outside the home, writing in an order that she sought to craft conditions that minimized the number of times Fitzsimmons left home confinement.
That order, Bradl contends, was an attempt to "defend the indefensible" in which the judge "resorted to attacking the attorneys on alleged procedural deficiencies and 'manipulation.'"
"There are ample alternatives to incarceration for Ms. Fitzsimmons, which were for some reason assiduously avoided by the trial court," the filing reads.
Essex County prosecutors have not responded to the appeal. But during the hearing, James Gubitose, the prosecutor on Fitzsimmons' case, did not take a position on the alcohol testing issue. The government's position was simply that Fitzsimmons continue to undergo testing for alcohol consumption, not that she must use a SCRAM device.
The appeal is assigned to Justice Elizabeth Dewar, records show. Dewar has not yet issued a ruling.
Fitzsimmons is set to appear in court on Oct.7 for a pretrial hearing. An evidentiary hearing on the restraining order was scheduled for Sept. 23, but continued to November at the request of lawyers for both Fitzsimmons and her fiancé.
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