Pitt law professor David Harris on what to look for during Michael Rosfeld trial | TribLIVE.com
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Paul Guggenheimer

The trial for former East Pittsburgh police Officer Michael Rosfeld is set to begin Tuesday.

University of Pittsburgh law professor David Harris, who hosts the “Criminal Injustice” podcast, spoke with the Trib about whether Rosfeld will testify, how important the cellphone video from the night of the shooting will be and more.

Rosfeld is charged with homicide for shooting and killing 17-year-old Antwon Rose, who was shot as he and another teenager ran from a traffic stop June 19. Rose was unarmed.

Rosfeld is represented by Patrick Thomassey, a longtime Western Pennsylvania defense attorney. The prosecution is headed by Chief Trial Deputy District Attorney Daniel Fitzsimmons.

Harris said it depends on how the trial goes.

“Jurors always want to hear the defendant testify. But there are significant risks in having a defendant testify, even one you might be perfectly sure is telling the truth,” Harris said. “If you testify, you get cross examined. And you can’t take for granted that’s going to go well. Cross-examination in the hands of a skilled attorney can make even a truthful witness look untruthful, can make a sincere witness look insincere or shaky.”

Harris said attorneys try to avoid those risks. They try to build cases without having their clients testify.

“I guarantee you, Mr. Thomassey is looking for a way to construct a very solid case without having him testify.”


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How will Rosfeld be portrayed?

The prosecution will paint Rosfeld as not ideally suited for the job, Harris said. Rosfeld had bounced around with smaller departments and had left the University of Pittsburgh Police Department in 2018. He was sworn in as an East Pittsburgh officer just hours before the shooting.

The prosecution will also try to convince the jury that Rosfeld exceeded the legal rules for using deadly force, Harris said. Police can use deadly force but only when they or others are threatened by deadly force. Prosecutors will argue that Rosfeld didn’t face a deadly threat, that no “objectively reasonable police officer” would have felt threatened in that circumstance, Harris said.

“The kid did not appear to have weapons. He was simply running away,” Harris said. “They will make the argument that Rosfeld was, at best, unsure about whether the kid appeared to have a gun. He doesn’t have to be right about the need for force, he just has to be reasonable. The prosecution will argue he saw no gun in the kid’s hand, and he doesn’t even know if he was sure that he thought he saw one.”

Thomassey will argue the opposite, Harris said. The defense will lean on the fact that the car in which Rose was a passenger was suspected in a drive-by shooting just minutes earlier.

“Deadly force had been used,” Harris said. “And only a few minutes later, this kid fled from that car, and therefore it’s reasonable to have used force in those circumstances.”

How will Rose be portrayed?

“A young man who may have been with the wrong people, wrong place at the wrong time. But not deserving of what happened to him, certainly. A kid who was in high school and who should very much still be alive,” Harris said of the image the prosecution will paint.

Thomassey will attempt to paint a different picture, Harris said. What they can say about who Rose was or what he was doing right before he was shot might be limited.

Allegheny County Common Pleas Judge Alexander Bicket has yet to decide whether he will allow Rosfeld’s defense to bring up to the jury the clip found in Rose’s pocket, gun powder residue on his hands or guns found in the car. The prosecution has argued that there is no way Rosfeld could have known these facts when he decided to pull the trigger.

“The defense, if they have the chance, will point out that he had just been involved in a drive-by shooting. None of that should make a difference, of course, in whether a police officer can shoot him in the back,” Harris said.

What facts are most important?

Harris said that for the prosecution it comes down to whether any weapon was or could have been seen.

For Thomassey, the most important fact is that just before Rose was shot, there had been a drive-by shooting.

“He’ll also argue that the officer was just trying to do his job. That perhaps the department didn’t give him good training. It really comes down to that few minutes,” Harris said.

Who will testify?

According to Harris, the prosecution could call:

• Any witnesses to the shooting.

• Officers and detectives who investigated the shooting.

• Anyone else, not police, that Rosfeld made statements to.

• The medical examiner who worked the case.

And the defense could call:

• A use-of-force expert.

• Witnesses to the drive-by shooting that happened earlier.

• Rosfeld.

What evidence will be introduced?

The widely seen Facebook video of the Antwon Rose shooting is a very important piece of evidence, Harris said.

“It’s not great, and it’s from a long distance, but it will tell what it tells,” Harris said.

The jury could also hear from Rosfeld, even if he doesn’t testify. Statements Rosfeld made to prosecutors and police are considered evidence, Harris said.

District Attorney Stephen A. Zappala Jr. said when he charged Rosfeld that inconsistencies in his statements to investigators played a role in the decision.

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