Attorney asks judge to step aside in Rose case
Says TV comments were inappropriate
Allegheny County Common Pleas Judge Anthony M. Mariani appears monthly as a legal commentator on PCNC’s NightTalk, a cable TV talk show.
On June 21 — two days after East Pittsburgh police Officer Michael Rosfeld killed 17-year-old Antwon Rose II — Judge Mariani told program host Ellis Cannon that officers must face a “clear and present danger” to be entitled to use deadly force.
“Frankly, shooting somebody running away — even if you think that person committed a felony — when he clearly doesn’t have a weapon on him, is not acceptable, as it was 50, 60 or 70 years ago,” the judge said, six days before Officer Rosfeld was charged with homicide. “An officer can’t just shoot somebody because he’s heard that somebody may have had a gun, but when he comes upon that person, he sees the person’s hands and doesn’t see a gun.”
Nearly two months after sharing those opinions, Judge Mariani was assigned to preside over Officer Rosfeld’s case.
On Tuesday, defense attorney Patrick Thomassey appeared in court and asked him to recuse himself. The judge said he would consider it and set a hearing for Sept. 21.
Mr. Thomassey said the judge’s comments on the program raise
the question of whether he could be impartial.
“You used words such as ‘Maybe he shot this man out of frustration. Maybe the training wasn’t adequate. Based on the video, I’m not sure this was justified.’ “
Cases are typically assigned to judges at random.
During the early minutes of the segment, called, “Sidebar with Judge Anthony M. Mariani,” the judge said police officers voluntarily put themselves into perilous situations by virtue of their position.
“They all have families to go home to, too, and that sometimes affects his judgment,” he said.
The judge also watched the video from the shooting and said, “The video — it doesn’t suggest there was” any threat to Officer Rosfeld.
That statement alone was significant to Stephen Gillers, a professor and legal ethics expert at NYU School of Law. Mr. Gillers said it “requires the judge to recuse himself. It states a conclusion, even if tentative, about the facts of the case.”
Pennsylvania, Mr. Gillers said, has adopted the American Bar Association Code of Judicial Conduct that says, “A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned . ... ”
Mr. Gillers added that Judge Mariani’s comments about shooting an unarmed person who is running away “also requires recusal, although there the question is closer, because it expresses a view on the governing law in the specific context of this case.
“I stress that none of this means the judge could not be impartial. It means only that the public cannot have the confidence in his impartiality that the rule of law demands.”
Judge Mariani said he was inclined to deny Mr. Thomassey’s motion, explaining that he believes he can be fair.
“I don’t think that I am incapable of presiding over this case,” he said. “The only question is an appearance of impropriety.”
Judge Mariani set a potential hearing date on the matter for Sept. 21, but Mr. Thomassey has not yet decided whether he will accept Judge Mariani’s decision to stay on the case.
Also on Tuesday, Mr. Thomassey indicated that he plans to file a motion for a change of venire, which would allow the jury for the trial to be chosen in a different county.
Officer Rosfeld is accused of shooting an unarmed Antwon three times the evening of June 19 in East Pittsburgh as the teen fled from a traffic stop.
Police said the officer spotted the car, later identified as a jitney, that had been involved in a drive-by shooting 13 minutes earlier in North Braddock.
After Officer Rosfeld pulled the car over, he ordered the driver to the ground. Antwon, who was the front-seat passenger, got out and ran, as did a back-seat passenger, Zaijuan Hester, 17. Officer Rosfeld shot Antwon in the back, arm and face.
District Attorney Stephen A. Zappala Jr., in announcing criminal charges, said the shooting was not justified, that Antwon was not armed and had not committed a crime during the shooting. Zaijuan has been charged in the drive-by.
Mr. Thomassey said after Officer Rosfeld was arrested that his client believed Antwon had a gun and that the officer was justified in firing at him.
Mr. Thomassey suggested during the hearing that he will call Zaijuan as a witness at Officer Rosfeld’s trial.
Because Zaijuan faces charges of his own, Mr. Thomassey said he will seek a grant of immunity for him to testify.