Pubdate: Sat, 23 Jul 2005
Source: Berkshire Eagle, The (Pittsfield, MA)
Contact:  2005 New England Newspapers, Inc.
Website: http://www.berkshireeagle.com/
Details: http://www.mapinc.org/media/897
Author: Ellen G. Lahr,  Berkshire Eagle Staff
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)

CAPELESS UNLIKELY TO DROP DRUG CASES

PITTSFIELD -- The mistrial in the case of accused drug dealer Kyle W. Sawin 
has left questions about the jury's deadlock and speculation over how 16 
other Great Barrington drug-sting cases will proceed through the legal 
system. On one point defense lawyers agree: District Attorney David F. 
Capeless is politically and legally motivated to retry 18-year-old Kyle W. 
Sawin, whose case  ended with a hung jury amid defense claims of entrapment 
and harassment. Capeless also is unlikely to negotiate any other 
defendants' school-zone charges, they agree.

"He's going nowhere except forward, marching forward," said defense 
attorney Lori Levinson of Pittsfield, who represents Emma Kales, another 
Great Barrington  defendant awaiting trial. "There are some people who 
greatly admire this, and  some who don't."

Capeless could not be reached yesterday for comment. Pressure on the 
district attorney from a citizens' group opposing the application of the 
school-zone charges to first offenders has only caused him to hold fast to 
his policy, Kales and others observing the cases say. But Levinson also 
raised the possibility that Capeless will seek to have the trial moved.

"I think the DA will have to go for a change of venue for this particular 
kid because there's been so much press coverage. I would be surprised if 
they don't," Levinson speculated.

Great Barrington Selectman Douglas Stephenson, who said last year's drug 
sting greatly improved the town's commercial atmosphere, agreed. "I don't 
know of any way they'll be able to get jurors for any of the other trials 
in Berkshire County. It will be very difficult to find people," he said. 
"(Capeless) might stick his head down and forge ahead, because that's his 
personality," said veteran Pittsfield defender George B. Crane, "but it 
will screw up the criminal session for a year and a half." A high-profile 
rape trial, the case of Richard Lampron, was derailed this month when the 
Sawin case spilled into eight days; the rape case is now on for September. 
The emotional trigger point in the pending drug cases is the minimum 
mandatory two-year sentence applied to school-zone drug charges, which 
Capeless and his predecessor, the late Gerard D. Downing, adopted as 
policy. Capeless said he has been consistent in pressing for school-zone 
charges, as he has in the case of South County teens and young adults 
arrested last September after a summer-long investigation. He contends that 
the school-zone  law deters drug crime, while critics believe that 
mandatory sentences remove judges' ability to fit the punishment to the crime.

(One of the 18 people arrested in the drug sweep, 20-year-old Ryan Babcock, 
pleaded guilty this month to multiple cocaine sales and is now serving a 
four-to six-year state prison term; another, Alexandra Brenner, 18, had her 
marijuana  distribution case continued without a finding in Southern 
Berkshire District  Court in March.) Cases involving first-time offenders 
are more likely to go to trial than those with prior drug-dealing records, 
said attorney Leonard H. Cohen, representing two drug defendants. Attorney 
Richard Simons, who is defending  Mitchell Lawrence, said his client will 
go to trial.

Questions also have been raised as to whether jurors in the Sawin case 
indulged in something known as jury nullification: The term refers to a 
jury's  -- or a single juror's -- refusal to follow the judge's 
instructions, based on sentiment that the law itself is unfair or the 
consequences too harsh. Sawin's lawyer, Judith Knight, appealed to juror 
sentiment on the two-year mandatory sentence in her closing statements, 
prompting an instruction from Judge John A. Agostini that the jury must not 
allow sympathy or emotion to drive their deliberations.

Crane said he believed the prosecution had the evidence to convict Sawin. 
And other courtroom observers said that, despite challenges to their 
testimony, undercover police Officer Felix Aguirre and his supervisors were 
credible, convincing, professional witnesses.

But Crane said that at least one juror may have resisted the school-zone 
law because of its consequences.

"It means the attitude of the jury reflects the attitude of the whole 
county," said Crane. "The jury was given a defense they could hang their 
hat  on." He said Knight did "a great job of bringing up the entrapment 
defense." The entrapment defense apparently was being considered by the 
jury, based on a note delivered Thursday to the judge.

The note referred to "strong feelings around harassment and entrapment . 
some jurors have strong feelings on this."

Crane said Capeless has never failed to bring a school-zone charge when a 
drug sale takes place, even though he has discretion over whether to do so. 
"They decided this is a good tool with respect to drugs, because it gives a 
message, and they have uniformly and inevitably enforced it," said Crane. 
"He almost never drops it."

Simons, the defense attorney, agreed that the mistrial indicated that 
"people are struggling with the notion of what is a drug dealer. They're 
having trouble  putting the case into perspective."
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