DA Zappala video briefing draws criticism, raises ethical questions

Allegheny County District Attorney Stephen A. Zappala Jr. is under fire for posting a video to YouTube that some have called “puzzling” and “irresponsible.”

The 13-minute video — which Zappala refers to as a briefing — recounts the May 2022 killing of an 18-month-old boy in Downtown Pittsburgh, for which two men were convicted more than two months ago, and several pending criminal cases.

Legal experts, defense attorneys and Pittsburgh city officials say the video appears to be politically motivated and inappropriate and could raise ethical questions.

“The information released (Wednesday) by the district attorney is not just inappropriate but also threatens ongoing investigations and retraumatizes the community,” said Maria Montaño, a spokeswoman for Mayor Ed Gainey.

“These actions clearly show that the DA is more focused on politics and optics over the safety and good of the public,” Montaño added. “Releasing this information has the potential to taint jury pools and lead to the hard work of our officers being lost all due to his desire to be reelected.”

This is Zappala’s first public briefing video during his 25-year tenure, and it comes during what has been a tough reelection campaign. Zappala, a six-term incumbent, lost the Democratic nomination in May’s primary, but he collected enough Republican write-in votes to secure a place on the November ballot as a GOP candidate. Allegheny County Republicans haven’t won a countywide general election since 1999.

In response to questions from the Tribune-Review, Zappala said in a statement, “The district attorney has a duty to communicate with the public. This is especially true when there has not been a full, accurate and unedited reporting of not only the facts of the murder of a toddler Downtown, but also that the murder of that toddler was connected to the spreading violence in Downtown and the Golden Triangle.”

The statement went on to say Zappala will continue to provide video briefings directly to the public so they can be viewed in their entirety, in addition to traditional news conferences.

He did not provide any response to nearly a dozen specific questions about the timing of the video, why his office hasn’t addressed other pending cases or allegations that what he said could potentially damage pending investigations.

The video shows Zappala sitting in his office, recounting the case from last year in which 18-month-old De’Avry Thomas was killed in a drive-by shooting Downtown as the toddler sat in his car seat in a Jeep parked on Fourth Avenue at Stanwix Street.

Markez Anger, 24, of Wilkinsburg and Londell Falconer Jr., 27, of Wilmerding were both found guilty of first-degree murder following a nonjury trial in June.

They are scheduled to be sentenced to a mandatory term of life in prison without parole on Sept. 5.

In the video, which includes multiple camera angles of Zappala talking and footage of the Downtown crime scene, evidence photos and images of ballistics and crime lab testing, Zappala referred to the intended targets of the shooting who were inside the car with the toddler as “criminals.” He named them both and showed their mug shots.

“Just to underscore again, the analysis that we were going through in terms of who were the intended victims,” Zappala said. “They’re criminals. That is their business being a criminal in the vehicle.”

He said fentanyl and a gun were found inside the car. Court records show gun and drug charges were filed against Tylajae Allen in connection with the Downtown incident about three weeks later. She was released on bond.

Then, both she and Heze’kiah Nixon, who was with her in the car, were both charged with homicide stemming from a shooting in the North Side’s California-Kirkbride section on Aug. 7, 2022.

All of those charges are still pending.

“For a prosecutor to go and call people criminals before they’ve even been prosecuted, much less convicted, is an unfair use of state power,” said Bruce Green, a legal ethics expert who teaches at Fordham University in New York City.

The Rules of Professional Ethics advise that if a prosecutor talks about a pending case, they also should make clear that the person is presumed to be innocent.

“Here, you have a prosecutor saying these people are drug dealers, gang members and criminals,” Green said. “He’s basically referring to them as convicted.”

Nixon’s defense attorney, Casey White, agreed.

He called the prosecutor’s comments “false, inaccurate and concerning.”

“Heze’kiah is innocent, and that is not only the law but a legal fact. It is up to a judge or jury to make that determination (of whether Nixon is guilty),” White said.

“To call a child a ‘criminal’ without being convicted of any crime is alarming,” White added. “Heze’kiah is … a now-17-year-old boy charged in unrelated matters. What has been determined to be true is that Heze’kiah was a 16-year-old boy and was a victim of crime on a case that Mr. Zappala’s office prosecuted.”

University of Pittsburgh law professor David A. Harris agreed.

“There seems to be very little thought to the fact that (Allen and Nixon) are victims (in the Downtown drive-by shooting),” he said. “To simply say they’re all criminals is perilously close to saying they all deserve each other. That’s troubling and makes you wonder what’s the purpose of the video?”

White also questioned the timing of the video.

“Both men who attempted to kill my then-16-year-old juvenile client were convicted well over two months ago,” White said. “On the other hand, there is an obvious political component to this. It has been well publicized that the Allegheny County District Attorney’s Office has had ongoing issues with the City of Pittsburgh and the mayor’s office. Plus, there is the upcoming election.”

Zappala specifically criticized Gainey and his administration, city council, Pittsburgh Public Schools and state legislators in the video. He complimented the Pittsburgh police.

State Rep. Emily Kinkead, D-Brighton Heights, represents the portion of Pittsburgh’s North Side that Zappala alludes to in his video. Zappala said that area’s city councilman and its state legislator have not been helpful in the case, and that he felt the need to rehash the details to address issues of crime in Downtown Pittsburgh.

Kinkead, who is an attorney, said Zappala has never spoken to her about any of the cases mentioned in the video or about crime in the North Side or Downtown.

She said Zappala’s video is “absolutely politically motivated” and “irresponsible.” She said the DA is merely trying to align himself with Republicans after he lost the Democratic primary.

“He is taking a page out of the statewide Republican playbook,” she said. “He is blaming any crimes on progressive policy reform. But it doesn’t ring as true for Zappala, because he is the one who has been in charge of combating crime for decades.”

Violent crime has been falling in Downtown since 2019, statistics show.

Pittsburgh City Councilman Bobby Wilson, D-North Side, refutes Zappala’s claim that he has not addressed this case. He said his office has worked directly with the police and the city and has met with one of Zappala’s assistant district attorneys about these issues.

Harris characterized the video as “strange.”

“It’s clearly, first and foremost, not about this one particular case, because that case has already been tried and concluded with a verdict,” he said. “All of those facts are already out in the public realm.”

Harris said it doesn’t make sense to do a public briefing on a case where a conviction has occurred.

Further, he said, a briefing typically involves the media, community and family members who are able to ask questions.

“The only reason I can see to make this particular case a centerpiece is, he’s telling some larger story, which seems to be about crime in Pittsburgh,” Harris said, noting Zappala’s repeated references in the video to the “Golden Triangle” and “Downtown.”

Zappala went on in the video to talk about other pending cases and also named people who have not been charged. The video also showed images of a house, including its address, that Zappala said was a nuisance.

Harris said that, under the Rules of Professional Responsibility, a prosecutor is limited as to what he can say in pending cases.

“Comments should be very circumspect and limited to facts on the record with regard to these cases,” he said.

He expects that Zappala’s comments in the video likely will lead to motions by the defense attorneys in the pending cases, including potentially seeking to disqualify the DA’s office from prosecuting them.

“You’re doing this without any purpose and with the possibility of damaging the cases against the two people who were victims,” Harris said. “It causes unnecessary difficulties for these prosecutors.”

White said he is contemplating a motion for change of venue or venire.

A change of venue could be warranted, Green said, but as of Thursday morning, the video on YouTube had only 227 views.

“If it were actually viewed widely, that would be a problem,” he said.

Harris said Zappala’s video also could be problematic for any ongoing investigations by city officers.

Regarding his comments about one woman in the video who has not been charged, Harris said Zappala’s comments seem “at the very least, kind of careless.”

“We’re supposed to be careful with those kinds of statements by public officials,” Harris said.

Zappala painted the drive-by shooting and other shootings that followed as part of an ongoing rivalry between two groups in the city. He said he instructed his detectives to work with Pittsburgh police to try to impact crime Downtown.

“This is an area of the violence in the city we felt that we could substantially impact because it’s predictable,” he said in the video. “I’ve been asked to brief the public on a number of different things. I wanted to give you an idea where we were on some of the violence Downtown … in what’s been going on and what’s been scaring people about the Golden Triangle.

“They’ve created a lot of issues for businesses and people that live in and around the Golden Triangle. And people want to come Downtown and enjoy themselves.”

Zappala said public officials need to work together to address crime Downtown and that potential partners such as the city schools have been “very difficult to work with.”

Pittsburgh City Councilman R. Daniel Lavelle, whose district includes Downtown, said Zappala has never reached out to him to discuss crime in the neighborhood.

It is unclear why Zappala chose a case that has already concluded to be the first for his public video briefing series, which he announced Tuesday.

There are several cases outstanding in Allegheny County in which charges have not been filed, but they weren’t mentioned in the video. They include the Airbnb shooting on the North Side in April 2022 and cases involving officers implicated for killing people, including Jim Rogers, who was repeatedly shocked with a Taser in Bloomfield and died a day later in October 2021, and Romir Talley, who was shot to death by a Wilkinsburg police officer in December 2019.