Judge tells both sides: ‘Take a deep breath’
Contempt request denied in Rosfeld case
The Allegheny County prosecutor trying the case against the former East Pittsburgh police officer accused of killing Antwon Rose II in June tried last week to have the former officer’s attorney held in criminal contempt, alleging obstruction of justice.
In a sealed motion, Daniel Fitzsimmons, the chief trial deputy district attorney, accused attorney Patrick Thomassey of violating a protective order. Mr. Thomassey represents Michael Rosfeld in the homicide case. In addition to seeking a contempt ruling, Mr. Fitzsimmons asked that he be reported to the state disciplinary board for misconduct.
Common Pleas Judge Alexander P. Bicket held a closed-door hearing on the issue Jan. 3 and denied the prosecution’s request.
“I just don’t think that Mr. Thomassey’s conduct rises to the level of contempt,” the judge said.
After learning of the secret
hearing last week, the Pittsburgh Post-Gazette filed a motion seeking to have the transcript from that proceeding unsealed. Following a hearing Friday, Judge Bicket granted the motion, ordering that a transcript be provided.
According to the transcript, Mr. Fitzsimmons sought a contempt ruling against Mr. Thomassey because of comments he made during a Dec. 20 hearing on a defense motion to choose a jury from outside Allegheny County.
During that proceeding, Mr. Thomassey said Antwon had committed an armed robbery at gunpoint June 19 — the day he was killed — and had stolen a firearm.
When Mr. Thomassey made the remarks about the alleged armed robbery, he said it was in response to a comment that the media coverage of the case had been balanced and fair.
But Mr. Fitzsimmons, during the Jan. 3 contempt hearing, accused Mr. Thomassey of making the comment purposely to taint the potential jury pool.
The case is scheduled for jury selection in late February.
Mr. Fitzsimmons explained during that hearing that he did not want the information about how Antwon allegedly obtained the gun getting out to the public because “it would cause great harm to the truth-determining process.”
That’s why, in September, Mr. Fitzsimmons said he obtained a protective order from Judge Bicket. That order allowed Mr. Thomassey to be privy to the underlying information about the firearm but required that it “shall not, under any circumstance, be shared in any manner whatsoever with any person or entity absent further order of court.”
“That order was directly and egregiously violated by Mr. Thomassey on Dec. 20 during the hearing that we had on the motion for the change of venue/venire,” Mr. Fitzsimmons said, according to the transcript.
He asked the court to hold the veteran defense attorney in contempt for “essentially, obstructing justice by making this blurt out, knowing very well that it was in violation of a court order that you had issued for the purpose of preventing a jury taint.”
Defense attorney William Difenderfer, who represented Mr. Thomassey in the closed hearing, told Judge Bicket that the prosecution’s request for contempt was “outrageous,” and that his client was zealously defending Mr. Rosfeld.
“We come in here, and we fight like hell for our clients, and to subdue or to somehow stifle that, is wrong,” Mr. Difenderfer said.
He accused the DA’s office of being overly sensitive on the issue because the prosecution fears the alleged information about Antwon hurts its case.
“’Judge, it really hurts our case,’” Mr. Difenderfer said, pretending to be the prosecution. “’We don’t want anyone to know the truth about the background of the individual even though he is shown on TV every day with an Izod shirt on like he just graduated from Harvard.’
“That’s not balanced — that’s why Mr. Thomassey has been asking for a change of venue.”
Near the end of the hearing, when Mr. Thomassey finally spoke, he was angry.
“Do you realize how dangerous this is? “he asked the court. “I think I have a reputation for being a gentleman. Am I a zealous advocate? Of course. That’s what we do. My practice is guided advocacy. Their practice is guided by politics, and that’s what this case is all about, and it makes me sick.”
He questioned whether Mr. Fitzsimmons had filed his motion in an attempt to get Mr. Thomassey off the case.
“This is wrong. To accuse me of a crime, it’s wrong.”
In reaching his decision, Judge Bicket, who suggested that in the future questionable topics should be raised at sidebar conferences in open court, told both sides that he believed the acrimony could be avoided.
“So what I would ask, as a human being and as a judge, is for everybody to take a deep breath,” Judge Bicket said. “Understand that this is a high-profile case. This is not going to win or lose it. This case is going to be tried on the facts. It’s going to be tried on the law.”