DEFENSE OPENS IN SCHOOL-ZONE CASE

PITTSFIELD -- Amid legal jostling over witnesses' Fifth Amendment
rights, the defense began presenting its case yesterday in the trial
of a Great Barrington teenager accused of selling marijuana in a
school zone. Defense attorney Judith Knight, who represents
18-year-old Kyle Sawin, called the defendant's former girlfriend,
17-year-old Amanda Seavey, to the witness stand to describe her
visits with Sawin to the Taconic Lumber parking lot area last summer.

At the time, the parking lot was being secretly scoured by
surveillance officers and an undercover police officer during a drug
sweep that netted 18 people. Sawin is one of seven teens with no
prior record who face a mandatory two-year sentence in jail for
allegedly selling small amounts of marijuana within 1,000 feet of a school.

Knight asked Seavey how long she had known Kyle Sawin, and Seavey
replied that they had met in second grade, at the Farmington River
Regional Elementary School in Otis.

"In third grade, did you have your first date with Kyle?" Knight
asked. Seavey smiled at the recollection.

"He showed up at my door wearing this little suit and carrying an
armful of chocolates," Seavey said. "His parents took us to
Friendly's, and we got to sit in our own booth."

Darryl and Laurie Sawin, Kyle's parents, each wiped their eyes as
Seavey recalled the date.

Seavey and Sawin were friendly until high school, when they began
dating in December 2003, a relationship that lasted about 18 months,
Seavey said. She said that they are still on good terms, and that
she voluntarily testified for him. Undercover Officer Felix Aguirre
testified last week that Sawin sold him marijuana weighing about
three grams on three days, once on July 6, 2004, out of a backpack
that contained a hand-held scale. Aguirre stated that Seavey acted
as a lookout near the parking lot, while Sawin weighed and measured
about 2.5 grams of marijuana.

However, the prosecution closed its case Friday with no eyewitnesses
to the actual transactions with Sawin; rebuttal witnesses may be
called to give such testimony. Meanwhile, Sawin's backpack and scale
were not produced for the jury. Before Seavey took the witness stand
yesterday, Judge John A. Agostini questioned her extensively on her
decision to waive her Fifth Amendment right against self-incrimination.

She ran the risk of being charged with a crime if her testimony
indicated that she participated with Sawin in making a drug deal;
theoretically, she could face a school-zone drug charge.

But Seavey insisted yesterday that she knew her rights and would
proceed. She denied accompanying Aguirre and Sawin to a remote
location. "I saw them walk away together," Seavey said. "I didn't see
where." She said Aguirre was regularly in the parking lot and often
questioned her about Sawin's whereabouts and where he could "get
something." She said she repeatedly rebuffed Aguirre, who also
regularly approached Sawin. First Assistant District Attorney Paul J.
Caccaviello, in cross-examining Seavey, appeared to be laying the
groundwork for possible impeachment of her testimony. He questioned
her on whether she was at a particular address, 87 Railroad St., on
Sept. 3. She denied she was there on that date. Joshua Bessette, 25,
a former Railroad Street resident, testified yesterday that he
visited the parking lot area almost daily last summer and was asked
by Aguirre -- and witnessed him asking others -- "on a constant
basis" where he could buy drugs.

"He'd ask me the same questions over and over again," Bessette said.
"I would always say no."

Bessette, who testified under a subpoena yesterday, said he had no
hint of whether Sawin was upset by Aguirre's repeated overtures, but
that he was suspicious of Aguirre, who always had money, and always
wanted to buy. Prosecutor Richard Locke, cross-examining Bessette,
elicited confirmation of Bessette's prior record: a conviction for
operating under the influence, driving to endanger and possession of
alcohol. He then began pressing Bessette on a hot-button issue.

"Did you ever do anything illegal with (Aguirre)?" Locke asked.
Locke's question opened the door for the potential for testimony that
Aguirre smoked marijuana with and bought alcohol for some teens
during his months-long investigation, as has been suggested by
others involved in the Great Barrington operation.

A "yes" answer would have boosted Sawin's defense, but it also would
have opened Bessette to criminal charges. He told Agostini that he
would not respond based on his right against self-incrimination.

The courtroom was cleared, but the jury had heard Bessette's refusal
to incriminate himself, leaving the implication of illegal conduct
with Aguirre. Agostini told Knight that Bessette's entire testimony
should be stricken if he invoked the Fifth Amendment, and it appeared
that she might lose his testimony. The lawyers argued the point, and
Agostini called a recess. Knight headed to the law library on the
court's third floor, and the prosecutors rallied their efforts.

When court reconvened, Knight cited cases in which testimony was
preserved despite a Fifth Amendment claim; Locke argued otherwise.
Ultimately, Agostini produced his own case law, which he said would
allow Bessette's preliminary testimony to stand.

It was a small victory for the defense, but Knight will need another
one today. Agostini has told Knight that she must overcome a legal
hurdle to introduce her expert witness, psychotherapist Maro R. Hall,
who treated Sawin last year for addiction to marijuana.

Agostini questioned Knight pointedly yesterday for case law allowing
testimony that an addiction had bearing on someone's propensity to
deal drugs. The lawyers will argue the matter this morning at 9.

Meanwhile, during a court recess, members of Concerned Citizens for
Appropriate Justice, which is challenging District Attorney David F.
Capeless' use of the school-zone law, mingled in the hallway. They
hoped aloud that Bessette would go through with his testimony, but
one group member, Peter Greer of Great Barrington, said he had
spoken to Bessette.

"He won't do it. He's scared," Greer said. "They could really screw
with this kid." Then, as Prosecutor Locke passed in the hallway,
Greer said, "Disgraceful." Locke had words with Greer, then left, and
returned with Caccaviello. "I think what you're doing is
disgraceful," Greer said to the two men. "You're entitled to your
opinion," Caccaviello replied, and the two prosecutors returned to court.