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."