PROTEST ASKS DA TO SHOW LENIENCY

GREAT BARRINGTON -- Area citizens who have urged District Attorney David F.
Capeless to drop school-zone drug charges pending against seven people
arrested in last year's undercover sting have sharpened their attack.
Members of Concerned Citizens for Appropriate Justice teamed up yesterday
with the director of the Drug Policy Forum of Massachusetts at the Triplex
Cinema -- overlooking the parking lot that was the focus of an eight-month
investigation -- to chastise Capeless for his decision to pursue
school-zone charges that carry mandatory jail time of two years.

The citizens' group has argued that small-quantity marijuana transactions
involving first-time offenders should not carry school-zone charges.
Speakers yesterday criticized Capeless for allowing more violent criminals
to receive lesser sentences and for failing to show that his aggressive
policy deters drug crimes.

In response, Capeless told The Eagle that the group's efforts have been
misleading and that drug abuse is the "single biggest issue" with which his
office deals. Whitney Taylor, director of the Drug Policy Forum, a state
lobbying organization, said Capeless stands out across the state among
prosecutors who attach school-zone charges to marijuana distribution cases.
In 2003, she said, just 24 school-zone conviction cases statewide involved
an underlying marijuana charge; Capeless has sent seven such cases to
Berkshire Superior Court. Statewide, most of these cases are handled in
district courts, according to figures she produced from the Massachusetts
Sentencing Commission.

Taylor said activism on the issue should be happening countywide, not just
in Southern Berkshire.

Of 19 people arrested last September for selling drugs, all face
school-zone charges. While some are charged with dealing in cocaine,
Ecstasy and ketamine, seven face charges that they sold marijuana only to
an undercover police officer in or near the Taconic parking lot on Railroad
Street.

The parking lot area is within 1,000 feet of the Great Barrington Co-op
Nursery School on Main Street and the Searles/Bryant school complex on
School Street; merchants and town officials had been pressing for police
action to put a halt to drug activity there.

The state's drug-free school zone law imposes a minimum mandatory jail term
of two years for anyone convicted of a drug-dealing offense within 1,000
feet of a school. The law does not apply to possession-only cases,
regardless of the drug involved.

Prosecutors may use their discretion in whether to lodge the charge against
a defendant, but judges are bound to the two-year sentence after a
conviction. Several others spoke yesterday, including Ira Kaplan, a former
prosecutor in the district attorney's office, who told the group of about
25 that the school-zone law does not distinguish between the type of drug,
the amount of drugs, whether someone is a first-offender or a repeat
offender. He said Capeless is failing to apply prosecutorial discretion in
"blind application" of the two-year sentencing law.

Responding to Capeless' recent remarks that he has a "policy" of charging
and prosecuting school-zone cases to the full extent of the law whenever he
can, Kaplan replied that the policy is not fair, even-handed or effective.
"Guys who beat up their wives get probation and a batterer's (counseling)
program, and they say it's a first offense," he said. "The standard
disposition for a third offense of drunken driving is 150 days in a
treatment program. Compare the third-offense drunken driver to a young
person with no record who agrees to sell a small quantity of marijuana to
an adult undercover narcotics officer." Speakers yesterday pointed to what
they viewed as contradictory treatment of a felon more dangerous than those
arrested in Great Barrington. On May 13, a defendant in a shooting case
pleaded guilty in Berkshire Superior Court to multiple drug-dealing charges
involving cocaine and marijuana, breaking and entering and motor vehicle
charges; he was also charged with possessing a large-capacity weapon during
commission of a felony, two counts of drug violations within a school zone
and other firearms charges. The defendant, Carlo R. Cibelli, 19, of
Pittsfield, who agreed to testify against a co-defendant, was sentenced to
three years of probation on the drug charges; the weapon charges and
drug-zone charges were dropped. Cibelli had admitted to becoming a drug
dealer at the age of 13. Erik Bruun, who helped initiate Concerned Citizens
for Appropriate Justice, said there were "very serious problems here that
needed strong action by the law enforcement community and it has been
effective in making downtown Great Barrington a safer place."

But the uniform application of the school-zone law, he said, "is costly,
unjust and (has) destructive consequences that have absolutely zero
correlation to making this a safer community."

Capeless defends record Capeless, apprised yesterday of the public protest,
said in a phone interview that the citizens' group has been deliberately
misleading the public to gain support for its cause. A petition circulated
by the group does not make clear that the seven defendants are charged with
selling drugs, not just using drugs, he pointed out.

"Marijuana is dangerous among teens, and sale is a serious issue and should
be prosecuted that way," said Capeless.

Arguments that the sale or use of marijuana are "nonviolent" offenses, he
said, ignore the fact that drug abuse is "a horrible scourge on our
community. The effects it has are physical, mental and psychological. The
abuse of drugs is the single biggest issue we deal with, and it's related
to all sorts of things, including violence. ... It's difficult to have a
reasonable argument with anyone who thinks selling marijuana is not a
serious crime." He declined to speak about the specific cases that are
pending, nor would he comment on how other prosecutors handle such cases.

Regarding the Cibelli case, Capeless said an extremely violent criminal,
David Baxter, was put behind bars mainly because a witness, Cibelli,
cooperated in exchange for some charges being dropped. The end result was
that Baxter was convicted and an active drug ring was eliminated, he said.
"Do we have to treat in a wholly different fashion people who cooperate at
great personal risk to themselves? Yes, we do. ... This is a whole separate
category of crime, and I make no excuses for that," Capeless said.