Pubdate: Sat, 24 Sep 2005
Source: Berkshire Eagle, The (Pittsfield, MA)
Copyright: 2005 New England Newspapers, Inc.
Contact:  http://www.berkshireeagle.com/
Details: http://www.mapinc.org/media/897
Author: Rich  Azzopardi, Berkshire Eagle
Bookmark: http://www.mapinc.org/pot.htm (Cannabis)
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)

SAWIN CLEARED OF CHARGES

PITTSFIELD -- Kyle W. Sawin left Berkshire Superior Court a free man 
yesterday after a jury cleared him of dealing marijuana to an 
undercover officer during a controversial drug probe in Great 
Barrington last year. A panel of seven women and five men acquitted 
the 18-year-old Otis man of three counts each of distribution of 
marijuana and of committing a drug violation in a drug-free school 
zone after about nine hours of deliberation. Sawin stood ramrod 
straight as his mother, Laurie Sawin, sobbed and shed tears of joy as 
each of the six "not guilty" verdicts was read at the conclusion of 
his second trial on those offenses.

The defendant had faced a mandatory minimum two-year jail sentence if 
convicted of one of the school-zone charges.

"Praise Jesus," the defendant's father, Darryl Sawin, said outside 
the courthouse moments after his son was acquitted. "We have our son 
back, and we  have our lives back."

Sawin was among 17 people arrested on drug-dealing charges as a 
result of the undercover operation at the former Taconic Lumber 
parking lot in the summer of  2004. The lot, which is within 1,000 
feet of both the Great Barrington Cooperative Preschool and 
Searles/Bryant Middle School, was a popular destination for 
teens  and young adults and, according to authorities, was also rife 
with drug activity. Prosecutors alleged that Sawin, who was 17 at the 
time, sold marijuana to undercover Berkshire County Task Force member 
Felix Aguirre three times during the course of the operation.

The first of the defendants snared in the sting to go before a jury, 
Sawin initially went to trial in July. A mistrial was declared in 
that case when the jury deadlocked.

In both cases, Sawin's attorney, Judith C. Knight, contended that her 
client, an admitted marijuana user, was the victim of police 
entrapment and was pressured by Aguirre into selling him marijuana 
from his personal supply on July 6 and Sept. 3, 2004.

Sawin also was charged with a sale to Aguirre on June 30, 2004. The 
defendant, who took the stand in his own defense, maintained that the 
purported transaction never occurred.

The defendant was absent from a series of police surveillance photos 
taken at the Taconic lot on that date, although the small amount of 
marijuana that prosecutors alleged Sawin sold to the undercover 
officer was among the evidence presented at trial.

A majority of those arrested were accused of selling cocaine, ecstasy 
and other "hard" drugs in the lot. However, seven of the defendants 
a€" Sawin included a€" were charged with selling only small amounts 
of marijuana as first-time offenders. After the arrests, a South 
County-based community group, Concerned Citizens for Appropriate 
Justice, formed and attempted to persuade District Attorney David F. 
Capeless to drop the mandatory minimum charges against the seven. 
Capeless refused, stating that it was his office's long-standing 
policy to uniformly pursue school zone offenses in any cases where 
they apply. Knight said she hoped prosecutors would re-examine their 
position in the aftermath of Sawin's acquittal.

"I hope that the district attorney's office thinks twice about 
pursuing the other cases in the same manner they pursued this one," 
she said. "At least give  close consideration to each of the 
individual cases." Capeless said he was disappointed with the jury's 
verdict and indicated that he does not intend to alter the policy.

"I felt that the defense was a weak one. These are very professional, 
well-trained, experienced narcotics investigators who would never 
stoop to  engage in entrapment. I feel that today, and I feel that 
going forward with any  of the cases that we have," the district 
attorney said. "I'm hard-pressed to  think about how they can find 
him not guilty."

Jury not convinced Juror Jonathan Nix said that the panel was split 
when deliberations began, but that as it grappled with the issues 
surrounding the case, its members concluded that not enough evidence 
existed to convince them with certainty that the earliest transaction occurred.

"On the other two (sales), we felt that there was enough coercion to 
warrant an entrapment finding," Nix, of Becket, said.

Sawin said Aguirre, who went by the name "Jose" during the duration 
of the probe, approached him an estimated 15 times to buy marijuana 
during June and July 2004.

He said he refused each time, until July 6, when the undercover 
officer told him he had just gotten into a fight with his girlfriend, 
asking one more time if  he had any marijuana for sale.

Sawin, who a few weeks earlier had had a public argument with his 
significant other in the lot, said he identified with "Jose's" 
relationship woes and decided  to sell him half of his own stash.

On the stand, Sawin said the September 2004 sale occurred during a 
time when he was between jobs and after the undercover officer 
offered him $65 for an amount of marijuana that he had just purchased 
for $50. Aguirre also took the stand during the trial and testified 
that Sawin was a willing participant in all the sales and even used a 
hand-held scale during the  July 6 transaction. Sawin denied owning a 
scale. The prosecution, which was represented by Assistant District 
Attorney Richard M. Locke and First Assistant District Attorney Paul 
J. Caccaviello, also attempted to discredit Sawin's entrapment 
defense with the testimony of three other defendants charged with 
marijuana and school-zone offenses in the Taconic probe. John 
Rybacki, Justin Cronin and Christopher Gennari each testified that 
Sawin had sold them marijuana in the past. An entrapment defense 
cannot be used by someone who is already predisposed to committing a 
crime, which in this case would be selling drugs.

Nix said the testimony of the three men was tainted in the eyes of 
jurors because of their admissions that a€" although no promises had 
been made a€" they took the stand in hopes of having their own 
minimum mandatory charges dropped. "They were pretty much dismissed," 
the juror said.

Nix also criticized authorities for putting what he said was a 
disproportionate amount of time and money into pursuing the case 
against the  defendant. "I am upset that the government put so many 
resources into such a trivial case with such meager returns," Nix 
said. "I think it's an outrage." Standing next to his attorney and 
his parents, a weary-looking Sawin said he was looking forward to 
putting the past year behind him. "I'm just happy it's over," he said.
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MAP posted-by: Elizabeth Wehrman