Tuesday’s jury selection will flip the script.
Typically, when prosecutors pick a jury, they look for people who are pro-police — who recognize the difficult job law enforcement officers have.
At the same time, defense attorneys often look for the opposite — they might want jurors who have had negative experiences with officers, people who are more apt to question authority.
But for the trial of former East Pittsburgh police Officer Michael Rosfeld, charged with shooting to death 17-year-old Antwon Rose II on June 19, experts say it will be the opposite.
“It’s a complete role reversal,” said Mark Calzaretta, a jury consultant with Philadelphia-based Magna Legal Services.
Mr. Rosfeld, 30, is charged with a single count of criminal homicide.
Jury selection in his case begins Tuesday morning at the Dauphin County courthouse in Harrisburg.
Antwon was the front-seat passenger in a gold car spotted in a drive-by shooting in North Braddock earlier that evening. Thirteen minutes later, Officer Rosfeld spotted the car with a shot-out rear window.
He pulled the vehicle over on Grandview Avenue and ordered the driver onto the ground.
As he did, Antwon and the back-seat passenger, Zaijuan Hester, who police have charged as the shooter in the drive-by, got out and started to run away.
Officer Rosfeld fired three shots, which all struck Antwon — in the arm, back and head.
Eight days later, Allegheny County District Attorney Stephen A. Zappala Jr. said that the shooting was not justified and announced that Mr. Rosfeld would be charged.
Defense attorney Patrick Thomassey has said, however, that his client was justified, knowing that the car from which Antwon fled had just been used in a drive-by shooting.
Mr. Thomassey filed a motion for a change of venire — seeking a jury from outside Allegheny County to come to Pittsburgh to hear the case — based on the amount of pre-trial publicity the shooting received. The incident was followed by weeks of protests, including some that shut down local highways, with protesters focused particularly on race: Antwon was black, Officer Rosfeld is white.
In January, Common Pleas Judge Alexander P. Bicket granted the motion, and a week later the state Supreme Court issued an order directing that the Rosfeld jury be selected from Dauphin County.
G. Terry Madonna, a political pollster who has studied Pennsylvania’s demographics, said that Dauphin County’s political leanings — like Allegheny County’s — tend Democratic. In both places, he said, the farther from the county seats of Pittsburgh and Harrisburg and the closer to more rural areas, the more those leanings shift toward Republican.
Dauphin County “definitely has shifted in the last decade,” he said. “I would think you could find a jury that was somewhat consistent with the demographics of Allegheny County.”
The racial makeup of each county’s population is similar. According to the U.S. Census Bureau’s 2018 estimate, Allegheny County is 80.3 percent white and 13.4 percent black.
Dauphin County is 72.4 percent white, and 19.1 percent black.
Although it is uncommon for a jury panel to be picked from elsewhere, it has happened before in Pittsburgh.
The June 2011 death penalty trial of Richard Poplawski, accused of killing three Pittsburgh police officers on April 4, 2009, was heard by a Dauphin County jury.
Like then, the jurors in the Rosfeld case will be bused to Pittsburgh before the March 19 start of testimony and then will remain sequestered in an a hotel until the case concludes, likely within two weeks.
The parties in the case will pick 12 jurors and four alternates from a pool of about 160 people who are expected to be questioned.
Once they are sequestered, the jurors will be protected by members of the Allegheny County Sheriff’s office for the duration of their stay in Pittsburgh.
They will not be permitted to watch television in their hotel rooms; they must eat their meals together and will travel everywhere they go as a group — always under guard.
William Costopoulos, a high-profile defense attorney in Dauphin County, said that sequestering a jury is an imposition, as the trial takes them away from their daily lives.
“There’s no empirical data to say they really resent it,” he said. “I think any resentment is offset by the importance they place on their civic duty.”
Sequestration is an imposition on the system, as well, Mr. Costopoulos said, requiring additional personnel and the expense of housing 16 people for an extended period.
The cost to the county for the Poplawski case was more than $107,000, which included everything from 11 nights’ hotel stay, to overtime for court staff, meals and even buying cough drops for a juror.
“It’s a task for the system,” Mr. Costopoulos said.
In picking a jury, experts agreed that important factors to consider will be race and experience with law enforcement.
“Nobody wants to meet that head-on or even talk about it, but it’s a reality in our system, and it has been for a very long time,” Mr. Costopoulos said. “It’s part of this case.
“You can’t go into this blind to that.”
Mr. Calzaretta suggested that socioeconomic status will also come into play during jury selection.
Those who have a higher income, Mr. Calzaretta said, tend to view the police more favorably.
“The biggest issues are going to be how they perceive police and how they perceive African-American teens,” he said.
Mr. Costopoulos suggested that for jury selection, the prosecution will try to find those who have had negative experiences with law enforcement, as well as mothers of teenage children.
The defense, he continued, will seek out jurors who may be government employees, who have no criminal history or involvement with the police and respect authority.
“Police officers, for good reason, are well-respected across the board, and Dauphin County is no exception to that,” Mr. Costopoulos said.
He mentioned a police shooting case there in 2015. An officer from the small, suburban Hummelstown police department was charged with killing a man as he fled from a traffic stop in February 2015.
Video of the incident recorded by a camera on her stun gun showed the former officer, Lisa Mearkle, shock the 59-year-old, unarmed motorist and then shoot him twice in the back as he lay facedown in the snow. During court testimony in in 2015, Ms. Mearkle said she believed David Kassick was still a threat even after she shocked him repeatedly.
In the video, Mr. Kassick’s hands repeatedly disappeared underneath his body as Ms. Mearkle screamed at him to keep them where she could see them and then fired the fatal shots.
A Dauphin County jury acquitted her of third-degree murder, as well as voluntary and involuntary manslaughter.
Mr. Calzaretta said that successfully prosecuting a police officer can be difficult.
“These cases are tough for prosecutors to win because of the way people generally view police officers and because of the legal standard.”
Alan Tuerkheimer, a jury consultant based in Chicago, said that the jury selection process tends to weed out those on the extremes.
An unlimited number of potential jurors can be removed from the case for cause, which means the person has shown a bias in some way, or has made it clear that he or she would be unable to be fair.
It is up to the judge to strike a juror for cause.
But the prosecution and defense in the case also each have seven peremptory challenges, which allow a lawyer to remove a potential juror for no reason at all.
That means, Mr. Tuerkheimer said, that “the people on both extremes will be picked off.
“So you end up with the ones in the middle who don’t have strong feelings.”
Mr. Tuerkheimer expects that the parties in the case will do quick background research on the potential jurors — even if that means doing a Google search on each name to see what groups a person belong to, if the person has previously participated in a protest, or just to review social media history.
Mr. Costopoulos estimated it will take two to three days to select the panel.
“At the end of the day, you’re really going to have to go with your own life experiences and instinct is a very big part of this.”
This piece originally appeared in the Pittsburgh Post-Gazette on March 9, 2019.