NORTH ANDOVER — State prosecutors want the wounded North Andover police officer awaiting trial to stay in jail despite her appeals to be free on bail.
The state filed its opposition to Kelsey Fitzsimmons’ appeal of the Essex Superior Court ruling for a Suffolk County Supreme Judicial Court judge to vacate her pretrial detainment.
Essex County Assistant District attorney Marina Moriarty filed the 24-page document Friday.
Fitzsimmons, 28, has been committed without bail since Sept. 11 when a superior court judge revoked her terms of release and sent her back to jail. Fitzsimmons is currently at the Western Massachusetts Regional Women’s Correctional Center in Chicopee.
Fitzsimmons, of North Andover, was indicted and arraigned in August on one charge of assault by means of a dangerous weapon stemming from a shooting inside her home on June 30. Police said she was shot by an officer after pointing a gun at one of the responding officers when they went to her home to deliver a restraining order and have her surrender custody of her infant son. Fitzsimmons claimed she was shot by police while pointing a gun at her own head in a failed suicide attempt.
Moriarty said while there’s no indication that Fitzsimmons was intoxicated during the shooting incident, “the Commonwealth demonstrated that alcohol fueled the precipitating violence in this case and has been a persistent issue for the defendant.”
The opposition motion references allegations made by Justin Aylaian, the father of Fitzsimmons’ child, and one of her friends about her being “heavily intoxicated” and “erratic and violent” two days before she was shot. The opposition additionally references allegations Fitzsimmons’ having a history of similar behavior.
In Fitzsimmons’ appeal, her lawyers Timothy Bradl and Martha Coakley argue she did not violate conditions of her release involving alcohol monitoring testing. Her appeal looks to grant her release on personal recognizance with a stay-away order.
Fitzsimmons was conditionally released on Sept. 8 to the custody of her mother under 24/7 house arrest with a GPS monitor. One of the conditions of her release was she be alcohol free and subject to alcohol monitoring testing by using a device which she needed to blow into multiple times a day to determine she was not drinking.
Moriarty said Superior Court Judge Kathleen McCarthy-Neyman’s original terms of release were reasonable to ensure the safety of the community and the police officer who shot her, but then Fitzsimmons sought emergency relief from the alcohol testing three days after being released.
The Commonwealth maintained at the Sept. 11 hearing, which culminated with the judge ordering Fitzsimmons’ back to jail, that alcohol testing continue to take place.
The Commonwealth’s motion states Fitzsimmons’ “instant petition” to the Supreme Judicial Court was filed late on Oct. 3 without evidence submissions with a supplemental exhibit on Oct. 6. Moriarty said the appeal failed to provide the court with any documents necessary to give it a full picture of the lengthy dangerousness litigation.
Moriarty argues Fitzsimmons’ actions of pointing a loaded gun at a fellow police officer and pulling the trigger, “coupled with an admitted history of mental health illness, and alcohol abuse, amply supported the lower courts’ findings as to her dangerousness and the need for detention.”
She argued there’s no error of law in McCarthy-Neyman’s ruling that Fitzsimmons is a danger. Moriarty said McCarthy-Neyman “considered evidence presented and made multiple supportable oral and written findings, resorting to detention as a last resort.”
She cited facts of the charged offense with Fitzsimmons’ lying about where all her guns were kept in the house, combined with “recent history of violence against the father of her child and threats to the safety of her own child.”
Moriarty said the superior court judge recognized Fitzsimmons was also previously held under a Section 12 order at Lawrence General Hospital and was open about a history of postpartum depression and attempted suicide.
Alcohol testing was also critical to her release due to preceding events on June 28, Moriarty said. The motion noted Fitzsimmons has prior out-of-state criminal charges, such as intoxication and disturbing the peace.
“Where alcohol is so clearly intertwined with the defendant’s ability to control her behavior, the court’s insistence on SCRAM (secure continuous remote alcohol monitoring) monitoring was eminently reasonable,” the motion read.
“Judge McCarthy was well within her discretion to conclude that she could not assure the safety of the community if the defendant’s sobriety was not reliably monitored,” it continued.
Fitzsimmons’ S.J.C. appeal remains pending.