Zappala removes video briefing on Downtown shooting case, seeks gag order

A week ago, Allegheny County District Attorney Stephen A. Zappala Jr. released and promoted a 13-minute video in which he called the defendant in a pending case a criminal.

This week, he removed the video from YouTube and is now seeking a gag order to limit pretrial publicity in the same case he talked about.

Zappala, who is seeking a seventh term in office in the November election, said last week that he created the 13-minute video to provide a full, accurate and unedited report to the public.

However, legal experts, defense attorneys and city officials criticized Zappala, saying the video was irresponsible and potentially unethical. In it, he referred to two people who have charges pending against them as criminals, even though they have not been convicted.

Zappala also recounted the details from last year’s shooting death of 18-month-old De’Avry Thomas in the video, which had at least 1,200 views on YouTube before it was removed this week.

The video also is no longer linked on the DA’s office website.

In the motion for the gag order, Chief Trial Deputy District Attorney William Petulla said the office was removing the video “in the interest of justice.”

The video, which featured B-roll footage, images of evidence from the case and multiple camera angles, showed Zappala giving detailed information about the criminal case against the men charged in the toddler’s death, Markez Anger, 24, of Wilkinsburg, and Londell Falconer Jr., 27, of Wilmerding. Both defendants went to trial in June and were found guilty of first-degree murder.

They will be sentenced to life without parole on Sept. 5.

Zappala also talked about the intended targets of the shooting, Heze’kiah Nixon and Tylajae Allen, calling them criminals. Neither of them were wounded in the attack.

After the Downtown incident, both Nixon and Allen were charged with homicide in a separate shooting in North Side’s California-Kirkbride section on Aug. 7, 2022.

Those charges are still pending and, under the law, both defendants are presumed to be innocent.

At a brief hearing for Nixon on Thursday, defense attorney Casey White called Zappala’s video comments “completely irresponsible.”

He asked for Nixon, a 17-year-old being held at Allegheny County Jail, to be moved to a juvenile facility.

“My client has now been labeled a snitch by the DA’s office because he was a witness and named an affiliated gang member,” White said.

White said Nixon has been the victim of “assaultive behavior” at the jail since the video was uploaded.

“I’m concerned for his safety going forward,” White said.

Deputy District Attorney Stephie Ramaley said Thursday’s hearing was not the appropriate time for White’s motion, and Common Pleas Judge Edward J. Borkowski agreed.

White said he plans to file a motion with the trial judge, Kevin G. Sasinoski, who also is expected to hear a petition to move Nixon’s case to juvenile court. White said he may file a motion seeking a special prosecutor and the removal of the Allegheny County District Attorney’s Office from the case.

In the motion for the gag order filed Wednesday, Petulla wrote that both the commonwealth and the defense have an interest in a full and fair trial. The names of the homicide unit attorneys who are prosecuting Nixon are not on the motion.

“Counsel for the defendant has raised claims that statements by the commonwealth will have a negative impact on the jury pool,” Petulla wrote. “The commonwealth submits that there currently is no evidence of prejudice, and considering that there is no current, firm trial date on either case, in an abundance of caution, the appropriate remedy is a court order limiting publicity.”

Petulla went on to say that, without a gag order, it is possible White will continue to talk about Zappala’s video “and that such continued statements may tend to prejudice the trial process related to this matter.”

The motion cited the Rules of Professional Conduct that govern attorneys in criminal matters and how they are to talk about the cases.

“The commonwealth further submits that any reference to the defendant’s character by both parties should be limited to the judicial process,” the prosecutor wrote.

White said he was shocked when he received the motion for the gag order, and that it comes too late, since his client has already been affected.

“Heze’kiah’s interests were compromised by an adversary outside the customary judicial process,” White said. “I have been in and around the Allegheny County District Attorney’s Office for 20 years and not once has that office publicly acknowledged a mistake.

“On one hand, I give them credit for trying to fix a wrong by removing the damaging content. However, we all know in today’s day and age, once that material is made available for public consumption, it can’t be removed.”