North Andover officer Kelsey Fitzsimmons to stay in jail after SJC denies appeal
Kelsey Fitzsimmons , the North Andover police officer facing criminal charges after being shot by a coworker in June, will remain in jail after a single justice of the Supreme Judicial Court denied her appeal of the order putting her behind bars .
Essex Superior Court Judge Kathleen McCarthy-Neyman ordered Fitzsimmons held as a danger to the community after a hearing where her lawyers raised issues with court-ordered alcohol testing that was a condition of her release.
Fitzsimmons could not complete the required testing via a SCRAM device, which screens for alcohol, without immense pain, her lawyers said. Injuries from being shot in the chest made it difficult for Fitzsimmons to complete the deep breathing required for the testing.
McCarthy-Neyman then sent Fitzsimmons to jail, finding she could not comply with the necessary conditions to support her release in the community.
Supreme Judicial Court Justice Elizabeth Dewar concluded the lower court judge "did not commit an error of law or otherwise abuse her discretion."
Dewar noted that McCarthy-Neyman did not revoke Fitzsimmons' bail, but rather vacated her earlier order of release.
"Nothing prevents the defendant from requesting relief" if she can show "'information exists that was not known at the time of the hearing or that there has been a change in circumstances'" and that "'such information or change in circumstances has a material bearing on the issue of whether there are conditions of release that will reasonably assure the safety of any other person or the community,'" Dewar wrote.
Tim Bradl, a lawyer for Fitzsimmons, did not return a request for comment. Decisions of a single justice can be appealed to the full panel of the SJC.
In their appeal to the SJC , Fitzsimmons' lawyers blasted 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."
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."
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 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.
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 November, when a trial date is likely to be set.
More about the case
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