Pubdate: Wed, 01 Feb 2006
Source: Berkshire Eagle, The (Pittsfield, MA)
Contact:  http://www.berkshireeagle.com/
Address: PO Box 1171, Pittsfield, MA 01202
Fax: (413) 499-3419
Copyright: 2006 New England Newspapers, Inc
Author: John J.  Whalan
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)

YOU BE JUDGE OF CAPELESS' STRATEGY

The next case on the criminal trial list for Superior Court is a 
first-time offender, Mitchell Lawrence, who is accused of selling one 
gram of marijuana to  undercover officer Felix Aguirre. The alleged 
sale occurred in the a downtown  Great Barrington parking lot at the 
beginning of a long sting operation by the  Berkshire County Drug 
Task Force. Because the district attorney has evoked the  school-zone 
law in this case, Lawrence faces a two-year mandatory minimum 
jail  term if convicted.

In 2005, Capeless failed, not once but twice, to gain a conviction 
against Kyle Sawin who was charged with three counts of selling small 
quantities of marijuana to Aguirre on different occasions. The first 
trial ended with a hung jury, the second in an acquittal.

The district attorney expressed dismay at what he perceived to be the 
jury's failure to convict. He had, in fact, put nearly every 
available resource into winning both trials. But in the end the 
jurors did not convict because establishing that Sawin sold pot is 
not the same as proving that he is a drug dealer who should be sent 
to jail for no less than two years. Capeless has described his 
extraordinary stance in these cases as an equal application of 
justice. Ironically, he kicked off 2006 by cutting several 
discretionary deals with career criminals.

During the first couple weeks of January he reached sentencing 
agreements and dropped firearms charges in several cases involving 
cocaine and heroin. Four people facing charges from a 2004 drug raid 
pleaded guilty as part of agreements  with the district attorney.

One defendant pleaded guilty to possession of cocaine and being 
present where heroin is kept. Another pleaded guilty to possession of 
heroin with the intent  to distribute, being present where heroin is 
kept and possession of marijuana.  They both got probation. Another 
pleaded guilty to distribution of heroin,  distribution of cocaine 
and being present where heroin is kept. As part of the  plea deal the 
district attorney dropped single counts of possession of a firearm 
during the commission of a felony, possession of a firearm without a 
firearm  identification card, possession of cocaine and marijuana. He 
got concurrent  one-year sentences in the Berkshire House of 
Correction. And another defendant pleaded guilty to distribution of 
heroin, distribution of cocaine, possession of cocaine, possession of 
marijuana and being present where heroin is kept. He's serving five 
months of a two-year sentence in the Berkshire House of Correction, 
with the balance suspended for a year of probation. There is no 
argument for equal application of justice in the case of Mitchell 
Lawrence. Neither Capeless nor his more able predecessor ever evoked 
mandatory  sentencing in a case involving a single, controlled sale. 
In the case of Mitchell Lawrence, the district attorney, exercising 
his sole discretion, is zeroing in on a small, otherwise manageable 
case, more effectively handled in pretrial conferences, by court 
magistrate or in district court. He says he is just following the law 
and hides behind the pretense that he is tough on crime. You be the judge.
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