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.