North Andover officer takes appeal of order jailing her to full panel of state's high court
Kelsey Fitzsimmons , the North Andover police officer accused of pointing a gun at a fellow officer serving her a restraining order obtained by her fiancé , is petitioning the full Supreme Judicial Court to reverse a lower court's order jailing her.
The appeal filed by attorney Tim Bradl on Tuesday comes days after a single justice of the court denied Fitzsimmons' petition to be released on conditions, finding a lower court judge did not make any errors of law in her ruling.
Fitzsimmons, 28, was jailed in September after she sought relief from court-ordered alcohol testing that required her to breathe into a tube attached to a SCRAM device. Her lawyers said the injuries Fitzsimmons sustained after being shot by one of the officers serving her the order made it difficult for her to complete the test without pain.
Judge Kathleen McCarthy-Neyman then reversed her order granting Fitzsimmons' release. Bradl filed a motion seeking reconsideration of the order, which was denied, before appealing to a single justice of the state's highest court.
Justice Elizabeth Dewar found McCarthy-Neyman "did not commit an error of law or otherwise abuse her discretion." She noted that nothing prevented Fitzsimmons from moving for relief a second time if she can show a change in circumstances.
Bradl is now petitioning the entire court to review the case.
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, 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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