MISTRIAL IN SAWIN CASE

Jury Deadlocks On School-Zone Charge

PITTSFIELD -- A mistrial was declared yesterday in the first of a
series of controversial marijuana-dealing cases that stemmed from a
police sting in Great Barrington last year.

A six-man, six-woman Berkshire Superior Court jury was dismissed
after indicating that it could not uniformly conclude whether
18-year-old Kyle W. Sawin was guilty of selling marijuana to an
undercover police officer three times last year. Nine hours of
deliberations Deliberations lasted for nearly nine hours, stretching
across Wednesday and yesterday. "No one on the jury wishes to
continue deliberations," Judge John A. Agostini said, reading from
the final note from the panel, which twice declared themselves deadlocked.

Sawin, of Otis, was one of 18 people snared in an undercover
investigation by the Berkshire County Drug Task Force of the former
Taconic Lumber parking lot, which was within 1,000 feet of a middle
school and a nursery school. Seven of the defendants -- including
Sawin -- had no previous criminal record and were accused of only
selling small amounts of marijuana. Sawin's case, as the first to
reach trial, became a flash point in the debate over District
Attorney David F. Capeless' decision to pursue school-zone
violations, which carry mandatory minimum sentences of two years in
jail, against the seven. Sawin was charged with three counts each of
distribution of marijuana and of committing a violation within a
drug-free school zone in connection with alleged sales to the
officer, Felix Aguirre, on June 30, 2004, July 6, 2004, and Sept. 3, 2004.

During the trial, Sawin's attorney, Judith Knight, contended that her
client was the victim of police entrapment and was pressured by
Aguirre into selling him the drugs.

Assistant District Attorney Richard M. Locke, however, argued that
the entrapment defense did not work because Sawin was predisposed to
selling drugs. The prosecutor pointed to the testimony of Justin
Cronin, 19, and John Rybacki, 18, who said that Sawin had sold them
marijuana multiple times. Cronin and Rybacki are among those accused
of selling marijuana to Aguirre and face the minimum mandatory
sentence on the school-zone violation. Two jurors who were approached
outside of court declined to discuss the deliberations, other than to
say that the panel was not "split down the middle." They declined to
say whether the majority was leaning toward exoneration or a conviction.

"It was a really hard case, and everyone tried really hard, but in
the end, it just didn't work out," one of the jurors said.

According to a note to the judge earlier in the day, debates in the
jury room centered on issues of "beyond a reasonable doubt," and
"strong feelings around harassment and entrapment. "

"Some jurors have strong feelings on this," the note read. "All jury
members feel that we cannot come to a final verdict."

Both sides disappointed Outside of court, both Knight and the
prosecutors said they were disappointed in the outcome.

"I thought we presented a very compelling case, and I regret that
certain of the jurors did not agree with us," Capeless said. "We will
retry the case and I am confident ... we will gain convictions."

"I was disappointed that we didn't get a 'not guilty,' " Knight said.
"But I also wanted to say that I think the jury worked very hard, and
they were very committed to the evidence and hearing the case."

In court, Locke said he wanted Sawin's second trial to be put on the
September court list.

Capeless, in a statement released later yesterday afternoon, said
only that the case "will be retried in the near future."

Knight said yesterday's disposition was based on the evidence and not
on "jury nullification," a scenario in which at least one juror
disregards the judge's instructions and opts not to convict out of
opposition to -- in this case -- the school-zone statute.

The defense attorney also said that she questions the prosecution's
wisdom in seeking a retrial.

"The commonwealth put on what appeared to be their best evidence and
put in their best efforts in this case, and a jury still wasn't
convinced," she said. "That is something that is at least something
they should take a look at." In the wake of the Taconic probe, which
was triggered by complaints from community members about drug
activity and violence taking place in the lot, a grassroots group,
Concerned Citizens for Appropriate Justice, formed and sought to
persuade Capeless to drop the school-zone charges against the
marijuana defendants.

Capeless refused, stating that it had been his office's policy to
uniformly pursue school-zone violations in any case where they apply.
Members of the group -- along with attorneys representing other
defendants in the sting -- were frequent spectators in the court
gallery during Sawin's trial. At one point, a group member got into a
verbal confrontation with Locke and First Assistant District Attorney
Paul J. Caccaviello in the hallway. Capeless, alluding to the
incident, commended the prosecutors for their conduct during the trial.

"They conducted themselves professionally inside the courtroom and
outside the courtroom, despite the circumstances and despite,
unfortunately, the boorish behavior of some people."