By Charlie Deitch
Pittsburgh Current Editor
In a recent interview with Allegheny County District Attorney Stephen Zappala, it’s hard not to immediately ask about the 2017 shooting death of Antwon Rose II and the firestorm that erupted with the acquittal of the man who killed him, former East Pittsburgh Police Officer Michael Rosfeld.
Rose was killed last year when he was shot in the back three times by former Police Officer Michael Rosfeld and a lot has happened since then. There were massive protests both after Rose’s death and Rosfeld’s acquittal. Zappala has been heavily criticized for what many see as making strategic mistakes and not properly prosecuting the officer.
One of those critics is Turahn Jenkins, a defense attorney and former prosecutor, he decided last year to run against Zappala, who hasn’t faced a serious challenger for his job in 20 years.
And although Jenkins isn’t a candidate without blemishes — you can read about his missteps involving the LGBTQ community here — many progressive voters are throwing their support behind him because they believe Zappala’s record of holding police officers accountable is suspect. Rose’s mother has also criticized the prosecution and has, in fact, endorsed Jenkins’ candidacy.
Specific complaints include the fact that Zappala’s office did not secure a use-of-force expert to testify for the prosecution, that Zappala allowed the trial to become about Rose and not Rosfeld and that Zappala himself should have been the person trying such a major case.
When asked about the reaction Zappala has received from the public, he says while there have been some vocal public protests, he hasn’t personally heard a lot of negative feedback about the case.
“I haven’t heard much,” Zappala says. “But the fact is, you can’t shoot an unarmed person in the back and expect that that’s OK. It’s the third time that I’ve indicted officers in these cases.”
However, all three cases resulted in acquittals or hung juries.
“This is a political year and people are going to try and use this case for political reasons,” Zappala says.
As far as trial strategy, Zappala says the two attorneys who tried the case had prosecuted “about 200 homicides between them… After cases like this, you get a lot of people who want to be an armchair quarterback. The strategy was sound.”
According to Zappala, his team also tried to shape the trial before it even started with various motions, most notably on jury instructions. Jury instructions are a very strict set of rules that jurors must follow during deliberations. For example, in the Rosfeld case, jurors were given a definition of use of force from the judge. Jurors were then duty-bound to base their deliberations on that instruction and not what they thought personally was excessive use of deadly force. Zappala says his team sought a much different instruction than the one the judge gave.
Zappala says Pennsylvania state laws regarding the use of force by police officers combined with the type of jury instructions given are the main reason that officers tend to walk. “I don’t know how many counties, other than ourselves and Philadelphia, have prosecuted on-duty, uniformed police officers. We’ve done it three times,” Zappala says. “When it comes to police officers, I respect what they do, but we can’t let them cross a line.”
When it came to calling a use-of=force expert, Zappala says his office interviewed three and none were able to testify because of “personal or professional” issues. Instead, the team decided to focus on the defense expert and work on discrediting his testimony. “I think they did a pretty good job of blowing some big holes in his testimony,” Zappala says. “But the most difficult part of the case factually for us was that Antwon was in a car that was just involved in a driveby in North Braddock. He wasn’t a conspirator, he didn’t participate, but he was in the car.”
But Zappala’s reputation for not defending the community, most notably the African American community, against the police goes far beyond the Antwon Rose case. For example, no police officers were ever put on trial for the 2012 shooting incident that left Leon Ford, who was unarmed at the time, paralyzed. And in 2010, high-school student Jordan Miles was beaten by three white police officers as he walked to his grandmother’s house in Homewood. Miles’ criminal case was thrown out by a magistrate judge. Those events could make it hard for Zappala to convince a community that has consistently been denied justice, that he’s got their collective backs.
“I do get criticism from some people,” Zappala says. “But to be honest with you, I don’t get that kind of response from the overwhelming number of people that I interact with out in the community.
“Someone wrote me a letter, purporting to be a ‘community advocate’ and they went all the way back to the death of Jonny Gammage in 1995, which was three years prior to me being DA. It’s been  years since we’ve had a factual scenario similar to that of Antwon Rose.”
But despite Zappala’s assessment of the public opinion, protesters began calling for his ousting almost immediately following Rose’s death. Protests in the days following, often included chants of “Stephen Zappala has got to go.” At a demonstration on the courthouse steps June 21, 1Hood’s Jasiri X specifically called out Zappala because of the DA’s history.
“This is a referendum on District Attorney Stephen Zappala, he has always stood with the brutalizing police officers and he’s never stood with the oppressed black and brown people of Allegheny County,” said Jasiri X. “He didn’t prosecute police officers, but he put charges on Jordan Miles. He didn’t prosecute those police officers that brutalized Leon Ford but he put charges on Leon Ford.”
Protests went on for days with Rose’s supporters closing down streets, causing gridlock and even blocking the Parkway East for hours. Charges weren’t filed against Rosfeld for eight days after Rose’s death, but many critics, including former Allegheny County Coroner Cyril Wecht, have claimed that was due to the severity and persistence of protesters.
While Zappala’s tenure as DA has been filled with controversy, he says he has made many positive changes since taking office.
When asked about initiatives he’s particularly proud of, Zappala starts with his first term during which he reorganized the office’s departments to each specialize in a particular type of case, like domestic violence or child abuse. “I feel very strongly about crimes against women and children because that’s who we are. We’re family,” he says. “Those are the types of crimes that break down the fabric of our community.”
Zappala says that he also made his office available 24 hours a day to police officers and developed several diversionary dockets — pretrial programs that give offenders a chance to avoid prison and get help instead. Those include drug court, DUI court, veterans court, mental health court and others. “We diverted a lot of people out of the criminal-justice system,” Zappala says.
Zappala says he’s also proud of the creation of a criminal justice advisory board made up of people who work both in and out of the system, like educators, to help develop the schemes and procedures that decide how the office handles a variety of tasks, including the process for how things like Protection from Abuse orders are handled.
Other initiatives include the Phoenix Program which reviews roughly 7,000 cases a year ranging from possession to theft and results in roughly 5,000 cases a year being diverted from the criminal justice system. Zappala says the goal is to fix the reason that these people to ever enter the justice system to begin with, “and if we do that, they won’t be coming back.”
Zappala says his office diverts more cases through alternative dockets than any other county. “It’s our chance to treat humans like humans,” he says.
Another systematic change that Zappala has made is the requirement for police officersto get the prior authorization from the DA’s office before they make arrests in certain types of serious cases, . In the city’s warrant office, where arrest warrants are handed out, Zappala says that an additional 30 types of crimes were added. They include aggravated assault of a police officer, which requires a prosecutor to sign off before a charge can be filed.
Jenkins has taken issue with the county’s diversionary programs because in order to enter them, you have to be entered into the justice system. Jenkins wants the charging of defendants to be deferred and if the diversionary program is completed, it’s like the person was never in the system. Jenkins and the ACLU have also criticized punishments that include long terms of supervised released because it can keep a person in a de facto life sentence due to the stigma of conviction stays with the person and blocks them from housing and employment opportunities.
“I [hear] groups like the ACLU complain; if they think they can fix the system, tell me how to fix the system if all these people are affected,” Zappala says. “Honestly, I don’t think too many people listen to the ACLU much anyway, at least that’s my impression from the people I’ve interacted with. If you think there’s a problem, then be a part of the solution. That’s what we’ve worked hard to do.”
The Pennsylvania ACLU has taken Zappala to task over some of his policies and recently spoke out against his unwillingness to debate Jenkins. In a recent op-ed in the Pittsburgh Current by Reggie Shuford of the ACLU of Pennsylvania, Shuford pointed out, “More than half of the people sitting in the Allegheny Jail are being held, not because they have been convicted of a crime, but because they are accused of violating a condition of probation. Allegheny County sends more people to prison for parole violations than for new crimes. But it need not be this way: Allegheny County’s district attorney can take immediate steps to dramatically reduce the harm that supervision has inflicted on our community.
“At the end of 2017, nearly 25,000 people were on probation, and another 5,000 people were on parole in Allegheny County alone. With an adult population of just under a million people, that means 1 in 34 adults is under supervision here. That rate is 36% higher than the national average. Allegheny County’s enormous supervision crisis is driven, in part, by excessive probation terms: its average misdemeanor probation sentence is 30 months, and the average felony probation sentence is 60 months.”
On the issue of debating Jenkins, Shuford said, “In a healthy democracy, voters have the chance to hear from each candidate for a given office about where that candidate stands on issues that impact the community. By refusing to engage with voters at multiple candidate forums devoted to criminal justice reform, as well as declining to complete a candidate survey on those same issues, Allegheny County District Attorney Stephen Zappala is denying voters the opportunity to educate themselves on each candidate.”
Update: Over the weekend, Reggie Shuford, director of the ACLU Pennsylvania , released the following statement to the Pittsburgh Current in response to Zappala’s comments:
“The ACLU of Pennsylvania has more than 100,000 members and supporters, 125 of whom showed up at a candidate forum last week to give Mr. Zappala the chance to talk with voters about these issues. Not only did Allegheny County’s top law enforcement official fail to offer any solutions, he did not even have the decency to show up.
“Whether Mr. Zappala wants to engage with the ACLU of Pennsylvania is his prerogative. It is his duty, however, to listen to and engage with voters in Allegheny County, especially those who live in communities that disproportionately bear the brunt of his policies.