Letter: Commonwealth should make deal with Kelsey Fitzsimmons

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To the editor:

Trial by jury is a constitutional right provided in Article III, Section 2 of the Constitution. The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.”

Nothing in the Constitution guarantees one the right to select his own tribunal or the right to a speedy and public trial by a fair and impartial judge. The right to trial by jury is a benefit granted an accused, see Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 380, 99 S.Ct. 2898, 2905, 61 L.Ed.2d 608 (1979), which a defendant has the power to waive.

But before a waiver can be effective, the consent of the prosecutor and the sanction of the court must be obtained. See Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. 253, 263, 74 L.Ed. 854 (1930); Fed. R. Crim. P. 23(a). The ability to waive the benefit does not import a right to claim its opposite.

And the Supreme Court has stated that because of “confidence in the integrity of the federal prosecutor, Rule 23(a) does not require that the Government articulate its reasons for demanding a jury trial at the time it refuses to consent to a defendant’s proffered waiver.” Singer v. United States, 380 U.S. 24, 37, 85 S.Ct. 783, 791, 13 L.Ed. 2d 630 (1965).

Perhaps when Essex County District Attorney Paul Tucker saw Judge Jeffrey Karp move to loosen the draconian, pre-trial conditions unjustly placed on Kelsey Fitzsimmons — the young, seriously wounded female police officer standing before the court — the name of the case United States v. Sun Myung Moon, 718 F.2d 1210 (2nd Cir. 1983), cert. denied, should have started rattling in his head.

Observing a possible sea change, the former Salem police chief turned Essex County DA might have elected, at that moment, to invoke his office’s right to a trial by jury, thereby weakening, as much as possible, Judge Karp’s power and influence over the matter.

DA Tucker could have done so by objecting to the young woman’s jury waiver under the Sun Yung Moon ruling. By not objecting to her jury waiver, Tucker missed his only chance of winning a case many believe he never should have brought in the first place.

Original sin in the Fitzsimmons matter took place in the Probate Court. Investigations of the history of the litigation in both the Probate and Superior courts are required. To suggest that serious civil rights violations may not have taken place is absurd.

The commonwealth should get out in front of Fitzsimmons’ civil suit as soon as possible.  If the government were smart, and it generally is not, it would cut a deal with the young woman and her capable attorneys now and not wade for years through the expensive swamp of endless litigation and the inglorious defeat that surely awaits.

Why not speedily offer Officer Fitzsimmons a pension for life right now? It is not far-fetched to say that she is disabled. Let the young woman focus on attaining custody of her child, without the distraction of a civil suit for damages. This offer would be greatly beneficial to North Andover Officer Patrick Noonan as well, whose existence will undoubtedly be rendered absolutely miserable by a civil suit for damages. Why drag him or Fitzsimmons through more legal proceedings? Take the funding from the vast pension pool now.

This solution is not only humane, it is predicted to save Massachusetts taxpayers, some of whom work very hard to earn a living, a great deal of money. It’s a good deal all around.

Gail F. Sullivan
Lancaster