Prosecutor’s errors under scrutiny as defense seeks to toss case in 2022 Taco Bell killing

The veteran Allegheny County prosecutor whose conduct led to a first-degree murder conviction being overturned this summer had never before tried a homicide case and hadn’t tried any case for nine years prior to the one in question.

Chief Deputy District Attorney Jarrod Caruso was the only witness to testify on Tuesday in a hearing on whether the commonwealth ought to be barred from retrying Zairyre Simmons, who is accused of killing another man in 2022.

Caruso was the prosecutor in January when Simmons went on trial for the shooting death of Dorian Carver. A jury convicted Simmons in February of first-degree murder in connection with the shooting near a Taco Bell in Scott.

He was ordered to serve a mandatory penalty of life in prison without parole.

However, the conviction was overturned in August based on allegations of prosecutorial misconduct at trial. Common Pleas Judge Bruce Beemer granted Simmons a new trial.

A month later, defense attorney Ryan James asked for even further relief. He filed an additional motion seeking to bar retrial based on double jeopardy, arguing that the prosecution’s conduct at trial was so egregious, the entire case should be thrown out.

“An unprecedented action of this magnitude requires unprecedented relief,” James argued on Tuesday. “I’m asking you to bar retrial.”

‘At best, it’s negligence’

Simmons, 27, is charged with killing Carver, a Harrison resident, after the two got in an argument at the Taco Bell in Scott where they both worked on Nov. 9, 2022.

Carver, 32, walked away, but Simmons, who was a manager at the Cochran Road restaurant, followed him.

The argument turned physical in the store’s vestibule, and Carver left the property on foot.

Simmons retrieved a coat that police said contained a gun from inside Taco Bell, and then followed Carver about 500 feet to the lobby of the Northwestern Mutual Life insurance building.

He shot Carver twice and was arrested a short time later. Simmons was charged with criminal homicide, receiving stolen property for the gun that was used and carrying a firearm without a license.

When the case went to trial, Caruso, the prosecutor, failed to present any evidence on the firearm and receiving stolen property charges. Simmons’ defense attorney successfully argued to have them thrown out prior to the jury deliberating.

However, the judge still allowed the jury to proceed on the criminal homicide count, and the panel found Simmons guilty of first-degree murder.

Motion for new trial

When James took over as Simmons’ new defense attorney, he filed a motion seeking a new trial. He argued that the prosecution’s reference to the additional charges during their opening statement to the jury — including Simmons illegally carrying a stolen gun — painted his client in a negative light that would have influenced the panel.

The prosecution agreed and conceded Simmons should receive a new trial.

But, according to the district attorney’s office, that’s where Simmons’ relief should end.

Caruso’s actions, said Deputy District Attorney Ron Wabby Jr., were not intentional or reckless.

“At best, it’s negligence. Mr. Caruso was an ineffective prosecutor that day,” he said. “It just means it was a mistake.”

Focused on the homicide

Caruso spent about 90 minutes on the stand Tuesday, called to testify by the defense.

He reviewed dozens of pages of emails and text messages exchanged with the lead homicide detective in Simmons’ case as they prepared for trial last year, including messages where Caruso admitted that he felt overwhelmed and ill-prepared.

“I had never tried a homicide prior to this case,” he testified.

And it had been nine years since he’d last tried any case, he continued.

At the time of Simmons’ trial, Caruso said, he was supervising three units in the district attorney’s office, including city court, the warrant office and the area prosecutors.

Caruso, a 25-year prosecutor, testified that he did not ask to be assigned the homicide case. He said it was given to him by the homicide unit about two years before the trial.

He was so focused on the criminal homicide charge against Simmons, Caruso said, that he failed to properly prepare to present evidence on the receiving stolen property and carrying a firearm without a license counts.

During trial preparations, Caruso said, he had information about when and from whom the gun was stolen, including the victim’s name, phone number and address.

Still, Caruso said, neither he nor the detective subpoenaed the man for trial.

“I wasn’t thinking about them,” Caruso said.

“You were focused on what?” Wabby asked.

“The homicide. The murder charge itself.”

Caruso said he did, however, request the certification from the state that showed Simmons wasn’t licensed to carry a gun. It did not arrive prior to the prosecution resting its case.

‘Another bite at the apple’

During argument, James said that the prosecution’s behavior was “inexcusable.”

“We don’t put people on trial when we don’t have the evidence — hoping and praying it’s going to work out.”

The judge countered that Caruso at least made the effort to prove the firearm count by requesting the certification.

“It just came too late,” Beemer said.

The judge continued, “why does it matter if he made that mistake?”

“It’s a totality of the circumstances,” James answered.

While Simmons asked for — and received — a new trial, the attorney continued, that’s not enough.

“What’s more important now — societally, Mr. Simmons shouldn’t be put through another trial when his government, who has to be cognizant of his rights, did what it did,” he said. “We protect our Constitution and send a message to prosecutors who mess up to this degree. You don’t get to take another bite at the apple.”

But Wabby said there was no intent and no conscious disregard, meaning that the prosecution should be entitled to retry Simmons for the homicide.

“They got the remedy they asked for,” he said. “They asked for a new trial. They got it.”

Now that Tuesday’s hearing has concluded, both parties will file written briefs and Beemer will issue a ruling at a later date.