Rinaldo Del Gallo III and Berkshire County DA David Capeless

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RINALDO DEL GALLO III
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DAVID CAPELESS
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Letters to the Editor

01/19/2008

This is a letter to the editor regarding David Capeless the Berkshire Eagle would not run. Was Del Gallo a target of vindictive prosecutor who had engaged in malicious prosecution? You decide.

RINALDO’S NOTES: Both the Berkshire Eagle and the Pittsfield Gazette refused to publish this letter to the editor.

Saturday, January 12, 2008

Dear Editor:

Imagine that you are a prosecutor. Three family members are in a home—mother, father and son. An argument develops, and mother calls police stating that son has shoved the father. You institute charges. You then receive a letter from the father stating that newspaper accounts were totally exaggerated, that the criminal charges are groundless, and that the father would consider it a great disservice if you were to further prosecute the case. The “victim” father has such unfavorable testimony that you cannot even call him as a witness—he will be the defendant’s chief witness and testify that he only was nudged when he started to get a little too exited and he was asked to calm down, and that he was in no way harmed or offended by this minimal contact and in no way indicated a lack of consent. The son confirms the father’s account. The mother then tells you before the trial she wasn’t really quite sure if she actually saw contact but called because she thought things might get out of hand. There are only three witnesses that actually saw the event, and all three will present evidence seriously undermining the prosecution’s case. In fact, your only case is that all three percipient witnesses are lying.

No prosecutor in his right mind would look at these facts and think that there is any reasonable possibility of securing a conviction. As for the two accounts of intimidating witnesses, the judge gave directed verdicts after the close of the prosecutions’ case, agreeing that there was so little evidence that it would not be proper to send the case to the jury.

Prosecutors are not simply to bring cases merely because they “know the guy is guilty,” based upon a hunch, or simply because they want to believe the worst about him. Nor can they ethically look at one piece of evidence in isolation, such as a 911 call. A prosecutor’s obligation is to look at the totality of the admissible evidence and determine whether there is any reasonable chance that any reasonable jury would convict the defendant. If the answer is “no,” to go forward is senseless, a waste of prosecutorial and judicial resources provided by your tax dollars, lacks probable cause, and is immoral.

The conduct of DA Capeles and (now disbarred) DA Mike Nifong have many similarities. David Capeless had a 911 tape. Mike Nifong had a stripper that swore she was raped by Duke Lacrosse Players. But neither could look at the totality of the evidence and believe they stood a chance of securing a conviction—which is just another way of expressing that they knew the defendants were not guilty and the case lacked probable cause. There was an additional issue of actual suppression of exculpatory evidence in the Nifong case lacking here, but both prosecutors set out to prosecute cases fully knowing there was so much exculpatory evidence that they stood no hope of winning. In plain English, both David Capeless and David Nifong knew they had meritless cases but ventured on to destroy lives and reputations anyway for political reasons having little to do with the administration of justice.

What motivated David Capeless to prosecute such an arrantly meritless case? Surely it could not be out of concern for my mother and father. He knowingly put them through a nightmare and accused them of lying. Moreover, in cases not involving an indecent touching or serious bodily injury, it is unheard of for a prosecutor to not honor a “victim’s” wishes that the case be dropped. (These non-harmful, non-indecent battery cases are rarely brought even with the “victims” consent.) Was it for rehabilitation? The prosecution has no obligation to prosecute immediately and they could have conditioned dismissal on my obtaining anger management, family therapy, or any other type of psychological help. I would have agreed to walk down North Street in a tutu to avoid the criminal ordeal I suffered. The only thing ever put on the table by the District Attorney’s Office was a “Continuation Without a Finding,” which requires an admission of guilt (with its public and professional embarrassment), which in turn subjects me to disbarment.

David Capeless instituted criminal charges against me with no reasonable hope of securing a criminal conviction out of personal animus and political motivation. It constituted a grotesque misuse of the powers of the District Attorney’s Office. These awesome powers are to be used to secure the public welfare, not settle a private vendetta.

Rinaldo Del Gallo, III, Esq.
Pittsfield, MA

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Pittsfield Defense Attorney Timothy Shugrue
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www.capitalnews9.com
"Shugrue starts his campaign"
Updated: 7/15/2004 8:13:07 PM
By: Ryan Peterson

Pittsfield Defense Attorney Timothy Shugrue said it's time for the county's top prosecutor to be as dominant in the community as he is in the courtroom.

"The difference between Mr. Capeless and myself is that I'm going to fight crime on the streets. I'm going to start programs. I am the founder of the Berkshire County Children's Advocacy Center. I fought child abuse on the street by getting the community involved," he said.

Shugrue, a former Berkshire County Assistant DA, will be squaring off against current DA David Capeless. Capeless spent 13 years as First Assistant under long-time District Attorney Gerard Downing. Capeless was appointed to the office in March after Downing's death. Shugrue said both he and Capeless have the necessary experience, but he thinks it's time for a change.

"The difference between him and I is that I believe that I can get things done and be out in the community, and I can work with the people that are there now -- with the businesses to make sure that we do stop crime and make this a better place to live, make this the place that I grew up in," Shugrue said.

William Coe of Pittsfield said, "It's a very big challenge, but I think the man is going to work very hard. He's an honest person, so is Mr. Capeless, so it's going to be a good race."

Rinaldo Del Gallo of Pittsfield said, "We've really lost control. We need to take back the streets. I firmly believe Mr. Shugrue is the man for the job. We just can't continue on the same path, we need change."

Shugrue and Capeless are both running as Democrats, which means the race will be decided in the primary election September 14.

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Berkshire County residents Bruce Fyfe, left, and Tim Shugrue are headed to Super Bowl XLII in Arizona this weekend. The pair said once you've been tot he game once, it's hard not to go again. (Photos by Ben Garver / Berkshire Eagle Staff, February 2, 2008.)
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"Caccaviello named Prosecutor of the Year"
The North Adams Transcript, TheTranscript.com
Saturday, May 24, 2008

PITTSFIELD -- The Massachusetts District Attorney's Association has selected Berkshire First Assistant District Attorney Paul J. Caccaviello as a recipient of the William C. O'Malley Memorial Prosecutor of the Year Award.

The award was presented at the MDAA's annual Prosecutor's Conference Wednesday evening, May 21, at the Seaport Hotel in Boston.

"The Prosecutor of the Year is chosen from among over 700 prosecutors statewide," District Attorney David F. Capeless said in the news release. "The O'Malley Award is a lifetime achievement award which recognizes the special combination of talents embodied in a truly outstanding prosecutor.

"I was proud to nominate Paul for this honor. It is a tribute to his 19-year career as a prosecutor -- his leadership, courtroom skills, mentoring of younger prosecutors, and his commitment to our mission in the district attorney's office to seek justice."

A native of Pittsfield, Caccaviello is a graduate of Pittsfield High School, Berkshire Community College, the former North Adams State College and Western New England School of Law. He is the son of Rose Caccaviello and the late Vincent Caccaviello of Pittsfield. He lives in Dalton with his wife, Karen, and daughter Grace, 5.

This is the second such recognition for the Berkshire District Attorney's Office. In 1997, then-First Assistant District Attorney Capeless was honored as the Prosecutor of the Year.

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"D.A. resting after bypass"
By Conor Berry, Berkshire Eagle Staff
Wednesday, July 23, 2008

WEST STOCKBRIDGE — Berkshire District Attorney David F. Capeless is recovering at home after undergoing heart surgery.

Capeless, 56, underwent a double cardiac bypass last week.

In a telephone interview yesterday from his West Stockbridge home, Capeless said he is doing fine and expects to be back at work in about six weeks. In the meantime, he continues to oversee the DA's office and its nearly $4 million annual budget from his home.

"Everything went well," Capeless said of the surgery. "I look forward to a healthy and prosperous future."

Capeless has been district attorney since 2003, when he took over for the late Gerard D. Downing, who died of a heart attack. Capeless has since been re-elected to the position twice and is serving the second year of a four-year term.

After experiencing symptoms that began several weeks ago, Capeless said, he decided to be proactive and underwent a series of tests. An avid tennis player who is otherwise fit, he called the diagnosis of a heart problem "a surprise."

"We need to take heed of whatever signals our bodies are giving us," he said.

Capeless underwent surgery at Baystate Medical Center in Springfield on Thursday and was back home in the Berkshires by Sunday.

"This was remedial treatment for a heart condition," he said. "I did not have a cardiac event."

Capeless praised Baystate as a "fantastic facility" with a "terrific staff," adding that he would have had surgery closer to home if Berkshire Medical Center performed bypass surgery.

State Rep. Christopher N. Speranzo, a Pittsfield Democrat who served as the city's top lawyer, said he expects Capeless to be back at work in no time.

"He is fit as a fiddle," Speranzo said. "Considering the shape he is in, the schedule he keeps, he'll be right back at it."

Though Capeless is supposed to be convalescing, the county's top law-enforcement official said he continues to run the show from home, communicating daily with his staff via phone and computer.

"I expect the only change will be to my schedule," he said.
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To reach Conor Berry: cberry@berkshireeagle.com; (413) 496-6249.
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"Capeless, Ruberto urge voters to say 'heck no'"
By Conor Berry, Berkshire Eagle Staff, Saturday, October 18, 2008

PITTSFIELD — "Just Say No," the anti-drug slogan created and championed by former first lady Nancy Reagan in the 1980s, became the battle cry in the nation's highly publicized "War on Drugs."

Yesterday, Pittsfield Mayor James M. Ruberto coined his own anti-drug catch-phrase when he urged Berkshire County residents to vote "heck no" on Question 2.

The controversial November ballot initiative aims to decriminalize marijuana possession for those caught with an ounce of pot or less. If Question 2 wins passage, the offense would shift from a crime to a civil infraction punishable by a $100 fine — the same amount as a speeding ticket.

More than two dozen Western Massachusetts officials, from police chiefs to prosecutors and politicians, gathered on the steps of Pittsfield City Hall yesterday to voice opposition to the initiative, which they believe gives "the wrong message" to children and criminals alike.

Berkshire District Attorney David F. Capeless was joined by his counterparts in Hampden, Hampshire and Franklin counties, all of whom made it clear that passage of the marijuana measure would essentially convey to children and young adults that smoking pot is no big deal.

Passage of Question 2 also would play into the hands of crafty drug dealers, according to officials, making it easier for them to skirt more serious charges by carrying smaller amounts of the drug.

The binding referendum will be put before voters on Election Day, Nov. 4.

Hampden District Attorney William M. Bennet, whose jurisdiction includes the high-crime cities of Springfield and Holyoke, seconded Ruberto's call to reject the ballot measure.

"I agree with the mayor," Bennet said. "Vote 'heck no' on Question 2."

Bennet, whose office is based in Springfield, said approval of the measure "would be a green light for young people to start using drugs."

Capeless addressed the issue from both a public safety and a public health standpoint. He said relaxing possession penalties would make it more difficult for police and narcotics investigators to do their jobs, while simultaneously increasing the likelihood of people driving while intoxicated.

"This is not your mother's marijuana or your father's marijuana," said Capeless. Today's pot, he said, is far more potent than the drug smoked during the Woodstock generation, for instance.

Capeless cited recent nationwide surveys indicating that more than 40 percent of adolescents and young adults do not think it's dangerous to smoke and drive.

"They're going to get behind the wheel of that car," Capeless said, "and they're going to injure people."

Pittsfield Police Capt. Michael J. Wynn, the ranking officer in charge of the department, said the marijuana-possession threshold established by Question 2 is nothing to laugh at.

"An ounce of marijuana, in our mind, is distribution quantity," Wynn said. "That's enough to roll 100 joints."

Whitney A. Taylor, campaign manager for the "YES on Question 2!" initiative and chairwoman of the Committee for Sensible Marijuana Policy, took shots at Capeless and other law enforcement officials for their opposition to Question 2.

"Capeless' claims, like those made again and again by Question 2's opposition, are not based in fact," she said in a statement released after yesterday's rally at Pittsfield City Hall.

"They insist on attempting to convince voters that Question 2 is so-called 'legalization.' It's not," Taylor said. "Marijuana remains illegal under Question 2."

However, "if an individual is found possessing a small amount," she said, "it's confiscated and they are given a ticket."

Taylor also took issue with officials for allegedly downplaying the ramifications of getting caught with marijuana for the first time.

"While they maintain that no one gets a criminal record or report for marijuana possession — because offenders are given a continuance without a finding and probation — the truth is that a Criminal Offender Record Information report (or CORI) is generated upon arrest and has nothing to do with the court proceedings," Taylor said.

She said CORI reports are not "automatically sealed," but rather can continue to haunt offenders for years to come by creating obstacles to employment, housing and student loans.
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To reach Conor Berry: cberry@berkshireeagle.com, (413) 496-6249.
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Massachusetts Ballot Question 2: Possession of Marijuana

This proposed law would replace the criminal penalties for possession of one ounce or less of marijuana with a new system of civil penalties, to be enforced by issuing citations, and would exclude information regarding this civil offense from the state's criminal record information system. Offenders age 18 or older would be subject to forfeiture of the marijuana plus a civil penalty of $100. Offenders under the age of 18 would be subject to the same forfeiture and, if they complete a drug awareness program within one year of the offense, the same $100 penalty.

Offenders under 18 and their parents or legal guardian would be notified of the offense and the option for the offender to complete a drug awareness program developed by the state Department of Youth Services. Such programs would include ten hours of community service and at least four hours of instruction or group discussion concerning the use and abuse of marijuana and other drugs and emphasizing early detection and prevention of substance abuse.

The penalty for offenders under 18 who fail to complete such a program within one year could be increased to as much as $1,000, unless the offender showed an inability to pay, an inability to participate in such a program, or the unavailability of such a program. Such an offender's parents could also be held liable for the increased penalty. Failure by an offender under 17 to complete such a program could also be a basis for a delinquency proceeding.

The proposed law would define possession of one ounce or less of marijuana as including possession of one ounce or less of tetrahydrocannibinol ("THC"), or having metabolized products of marijuana or THC in one's body.

Under the proposed law, possessing an ounce or less of marijuana could not be grounds for state or local government entities imposing any other penalty, sanction, or disqualification, such as denying student financial aid, public housing, public financial assistance including unemployment benefits, the right to operate a motor vehicle, or the opportunity to serve as a foster or adoptive parent. The proposed law would allow local ordinances or bylaws that prohibit the public use of marijuana, and would not affect existing laws, practices, or policies concerning operating a motor vehicle or taking other actions while under the influence of marijuana, unlawful possession of prescription forms of marijuana, or selling, manufacturing, or trafficking in marijuana.

The money received from the new civil penalties would go to the city or town where the offense occurred.

A YES VOTE would replace the criminal penalties for possession of one ounce or less of marijuana with a new system of civil penalties.

A NO VOTE would make no change in state criminal laws concerning possession of marijuana.

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"Talk of marijuana sparks lively debate"
By Conor Berry, Berkshire Eagle Staff, Friday, October 24, 2008

PITTSFIELD — Berkshire County's top law enforcer locked horns last night with the spokeswoman for a campaign dedicated to decriminalizing possession of an ounce or less of marijuana.

District Attorney David F. Capeless clashed with Whitney A. Taylor, campaign manager for "YES on Question 2," during a debate on the contentious topic at Berkshire Community College.

Voters will consider Question 2, a binding referendum, when they go to the polls on Nov. 4.

The measure would replace the state's criminal penalties for possession of an ounce of pot or less with civil penalties, including a $100 fine for all offenders and mandatory drug education classes and community service for all minors.

Taylor and other Question 2 proponents say the goal is to keep people who are arrested for possessing small amounts of marijuana from acquiring criminal records, which could prevent them from getting jobs, housing or college loans.

But Capeless and the state's other 10 district attorneys, all of whom oppose Question 2, say an ounce of marijuana is not a small quantity of the drug, and passage of the measure would send the wrong message to commonwealth residents.

Taylor called Question 2 "a modest proposal" that would "end the arrest and booking process" for those caught with small amounts of pot. The goal, she said, is to prevent the generation of a Criminal Offender Record Information report, or CORI, which can haunt people for the rest of their lives.

"We believe that for this single offense ... that punishment does not fit the crime," she said.

Under current law, marijuana possession is punishable by fines of up to $500 and jail sentences of up to six months. However, if the ballot measure passes, the crime would turn into a $100 civil fine. Meanwhile, offenders under age 18 would be required to perform community service and to attend drug education classes.

Capeless said Question 2 is a first step toward decriminalizing marijuana, a gateway drug often linked to more serious crimes.

While marijuana use among teenagers has dropped over the past five years, Question 2 would buck that trend, according to Capeless.

"It sends the wrong message to our kids," he said, adding that overall marijuana use has declined by 25 percent nationwide since 2002.

The district attorney predicted more young people would try the drug if Question 2 is approved.

An ounce of marijuana is equivalent to about 50 individual pot sales, or dozens of joints, according to law enforcement officials.

Taylor maintained that a person caught with a small amount of pot could face negative ramifications for years to come, particularly when it comes to finding employment.

But Capeless strongly refuted that claim, pointing out that the case of a first-time offender would be continued without a finding for six months. At that point, the charge would be dismissed and the criminal record would be sealed, Capeless said.

"Sealed means sealed," the district attorney said with emphasis, "and no CORI check will ever reveal that record."

Capeless said the notion that a person will have a record that follows them through life is simply untrue.

No matter, Taylor said, " A piece of paper is spit out that says 'Sealed Record.'" And that, she said, could be bad enough for anyone looking for a job, a loan or an apartment.

Taylor claimed the state spends roughly $30 million annually in police resources to enforce current marijuana possession laws, funds that could be better spent combating violent crime.

Capeless and other law enforcement officials have questioned the veracity of that figure, noting that, in most cases, people who are incarcerated typically have multiple charges lodged against them, not merely a pot possession charge.

The debate was sponsored by the Berkshire Fatherhood Coalition and Berkshire Community College.
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To reach Conor Berry: cberry@berkshireeagle.com; (413) 496-6249.
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The Boston Globe
"2008 Ballot guide"
November 2, 2008

Q2 Would replace the criminal penalties for possession of 1 ounce or less of marijuana with a system of civil penalties, and would exclude information from the state's criminal record system.

PRO

Proponents say the initiative would maintain the state's existing penalties for growing, trafficking, or driving under the influence, while ensuring that those caught with less than an ounce of pot would avoid the taint of a criminal record. They note that marijuana possession arrests and convictions are records that remain visible to many employers, even when the charges are dismissed.

Notable supporters: The American Civil Liberties Union, Greater Boston Civil Rights Coalition, The Boston Workers Alliance, and Law Enforcement Against Prohibition.

CON

Opponents of the initiative argue that decriminalizing marijuana possession would send the wrong message to youths. They say it would promote drug use and benefit drug dealers at a time when marijuana has become more potent than ever before. They also warn it would increase violence on the streets and safety hazards in the workplace and cause the number of car crashes to rise.

Notable opponents: Governor Deval Patrick, Attorney General Martha Coakley, Senator John F. Kerry, Mayor Thomas M. Menino, former mayor Raymond L. Flynn, district attorneys throughout the state, the Boston TenPoint Coalition, and the Massachusetts Chiefs of Police Association.

THE CONTEXT

The proposition is part of a broader national effort and echoes local initiatives around the country to relax penalties for possession of small amounts of marijuana. It seeks to match marijuana possession laws in 12 states that have adopted some form of decriminalization. In 2006, 6,902 people were arrested in Massachusetts for marijuana possession -- more than 38 percent of all the drug arrests in the state that year, according to the FBI's Uniform Crime Reports.

-- DAVID ABEL

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"Voters keep state income tax, decriminalize marijuana, ban greyhound racing"
The Berkshire Eagle Online, Wednesday, November 5, 2008

Question Two

Supporters of ballot Question Two hailed the win, saying the new law for possession of marijuana will spare thousands from having a criminal record, which can make it harder to get a job, student loan or gain access to public housing.

Under the new law, which takes effect in 30 days, those caught with the small portion of the drug will be forced to give up the pot and pay a $100 fine instead of facing criminal penalties.

The win makes Massachusetts the 12th state in the country to decriminalize possession of small amounts of marijuana. The measure passed with 65 percent of voters supporting it and 35 percent opposed, with 77 percent of precincts reporting.

"It's nice to see that the voters of Massachusetts saw what a sensible policy Question Two is," said Whitney Taylor of the Committee for Sensible Marijuana Policy. "It's going to end the creation of thousands of new people being involved in the criminal justice system each year and refocus law enforcement resources on violent crime."

Critics, led by the state's 11 district attorneys, had warned the measure could lead to more drug abuse among young people. They said marijuana is a gateway to harder drugs and the marijuana available on the streets today is more potent than pot three decades ago.

Barnstable District Attorney Michael O'Keefe, who helped lead the opposition, said the state now must set up a new system to deal with the new law, including retraining police officers.

"Who do they report that ticket to? Who is going to oversee that?" O'Keefe said.

O'Keefe called the question a "mistake and bad public policy" and said it may not be realistic to make the switch within 30 days.

"We have a Registry of Motor Vehicles in this state, but we don't have a registry of dope smokers yet, but apparently we will now," he said.

O'Keefe complained that opponents were outspent by out-of-state activists who poured hundreds of thousands of dollars into the organizing effort and signature-gathering campaign.

Among those contributing to supporters of the question was billionaire financier and liberal activist George Soros, who donated $400,000.

Taylor dismissed O'Keefe's criticism, saying police already have citation booklets and can use them to issue tickets to those caught with small portions of the drug. She also said the group has no other plans to decriminalize drugs in Massachusetts.

Under the new law, anyone under 18 caught with an ounce of less of marijuana has to complete a drug awareness course or face a stiffer, $1,000 fine. Parents or legal guardians must also be notified.

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"Teens tackle issues on county DA's new committee"
By Jenn Smith, Berkshire Eagle, Thursday, October 30, 2008

PITTSFIELD -- Over the years, Berkshire County's adults have tackled the tough issues confronting our youth -- like drugs, bullying, risky behaviors and harmful interactions.

Even after implementing some successful prevention programs and initiatives, the Berkshire District Attorney's Office recognized an important piece of the puzzle was absent: the young people.

"We were missing input from the very audience we're trying to reach," said District Attorney David F. Capeless.

Tuesday, that officially changed.

Twenty-three juniors and seniors -- at least two from each high school in the county -- were inaugurated to the first Berkshire District Attorney's Youth Advisory Board.

"I think it's about time," said Luke Coviello, a senior at Wahconah Regional High in Dalton.

The Youth Advisory Board has its work cut out. Its members will aid the district attorney's office in planning community outreach, education and youth-focused initiatives. They'll help develop programming for students in kindergarten through Grade 12. They'll be creating public awareness campaigns to recognize and promote positive youth behaviors and take part in prevention programs.

"It's going to be your job -- your opportunity -- to speak up and get involved," Capeless told the assembly Tuesday at a ceremony at his office in Pittsfield.

State Sen. Benjamin B. Downing, superintendents, principals, youth advocates, and members of the district attorney's office attended the board's kick-off, too.

A relatively young adult himself, the 27-year-old state senator urged the high-schoolers against being discouraged and thinking they're too young to make a difference.

"Don't be afraid in this role to take on big problems," Downing said. "Ask those tough questions and expect answers. As young people, you have the power to get real answers and use them to change your community."

Beginning Thursday, Nov. 20, the Youth Advisory Board will convene the third Thursday of each month, in addition to its work on projects.

At Tuesday's ceremony, the students were already tossing out important issues to confront: drugs, alcohol and teen suicide rates.

Deena Bak, a senior at Hoosac Valley High School in Cheshire, said she is skeptical about how her peers will react to the board's efforts. But, she said, "We'll try to be optimistic."

Ashley Laptas, a junior at Lenox Memorial High School, agreed.

"I know at our school, we've always desired a voice, but we haven't seen anyone really ask us up to this point," Laptas said. "Just to see all these kids here from all these schools, it's pretty amazing."

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"Three new lawyers join D.A.'s office"
By Conor Berry, Berkshire Eagle Staff, Monday, November 10, 2008

PITTSFIELD — A trio of new prosecutors has joined the Berkshire District Attorney's office, filling vacancies created by the departure of three veteran attorneys over the past year.

District Attorney David F. Capeless said he was disappointed "to lose three talented and hard-working prosecutors" — Jay Greene, Deanna Roberts and Glenn Tagliamonte.

"But I am pleased that we have been able to fill their positions with three new, equally talented and — I am sure we will find out over the next few months — equally hard-working assistants," Capeless said.

Roberts' recent departure was prompted by her husband's new job in the eastern part of the state, according to Capeless, while Tagliamonte left last year to become a prosecutor in the office of Suffolk District Attorney Daniel F. Conley in Boston.

Greene did not go too far, however. The longtime prosecutor recently left Capeless' Pittsfield office for North Adams, where he now works for Mayor John M. Barrett III.

The new attorneys — Robert D. Sullivan Jr., 25, Jeffrey P. Morgan, 28, and John P. Bossé, 29 — are originally from Eastern Massachusetts and now reside in Pittsfield.

Sullivan and Morgan joined the district attorney's office in October, while Bossé came on board this month. All three are assigned to prosecute cases in Central Berkshire District Court.

Bossé, who grew up in Salem, is a graduate of Providence College and a 2006 graduate of the Massachusetts School of Law in Andover.

Morgan, originally from Medford, graduated from Harvard College and is a 2007 graduate of the Northeastern School of Law in Boston.

Sullivan, who was raised in Peabody, is a graduate of the University of Miami and a 2008 graduate of the New England School of Law in Boston.
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To reach Conor Berry: cberry@berkshireeagle.com; (413) 496-6249.
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"Capeless Elected President of State DA Association"
iBerkshires.com - November 20, 2008

PITTSFIELD, Mass. — Berkshire District Attorney David F. Capeless has been elected president of the Massachusetts District Attorneys Association, which is comprised of the commonwealth's 11 elected district attorneys.

Capeless was elected at the association's monthly meeting in Boston on Wednesday. He said his top priority as president will be to help ensure quality prosecutions while being fiscally responsible during the economic downturn facing the state and the nation.

"The District Attorneys Association will be looking to work closely with the Legislature and the administration to strengthen public safety while developing and implementing cost-saving measures within the criminal justice system," said Capeless in a statement. "These are difficult times, but I believe we can accomplish these goals while strengthening the current system."

He succeeds Cape and Islands District Attorney Michael O'Keefe as president. Northwestern District Attorney Elizabeth D. Scheibel, who serves the people of Franklin and Hampshire counties, has been elected vice president.

Capeless was appointed Berkshire district attorney in March 2004 by Gov. Mitt Romney to succeed Gerard D. Downing, who died unexpectedly in December 2003. He was elected in November 2004 and re-elected to a full four-year term in November 2006. Capeless has been a prosecutor for his entire legal career — more than 26 years — having previously served as the first assistant district attorney from 1991 to 2004, and, before that, as an assistant district attorney in Middlesex County from 1982 to 1990.

In 1997, Capeless was honored as the Prosecutor of the Year by the District Attorneys Association.

He has successfully prosecuted a number of notorious cases, including serial child-murderer Lewis Lent and the 1992 shootings at Simon's Rock College in Great Barrington by student Wayne Lo. Most recently, he tried and convicted Patricia Olsen of 1st-degree murder for the 2005 shooting in Lanesborough of her husband, Neil Olsen.

Capeless, 56, also successfully prosecuted the murder of 17-year-old Krystal Hopkins of Pittsfield by Adam Rosier, which resulted in a 1997 landmark decision by the Supreme Judicial Court, the first appellate decision in the nation that recognized the use of the STR, or short tandem repeat, method of DNA testing, which has since become the industry standard for forensic testing of evidence.

A native of Pittsfield, he is the son of former Pittsfield Mayor Robert Capeless, and the grandson of former Pittsfield City Councilor and state Rep. Matthew Capeless. He is a graduate of the University of Pennsylvania and Boston College Law School and lives in West Stockbridge with his wife, Betsy, and his two sons, 13-year-old Charlie and 11-year-old Sam.

During his four years as district attorney, Capeless has focused on the growing problem of gang violence and the illegal use of firearms. He has secured special legislative appropriations of $150,000 the past three years to fund special operations by a countywide Guns 'n Gangs task force, which has made more than 250 arrests and seized 52 firearms.

He also supports proactive prevention initiatives and works with local law enforcement, social service agencies, health care professionals and educators to address the social, economic and health issues facing county citizens of all ages. Capeless said he sees education and civic involvement as a key to reducing crime, and so he and his staff serve as a strong presence in community affairs, activities and events.

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"Officials irked by new pot laws"
By Ryan Hutton, North Adams Transcript, Saturday, January 3, 2009

The second question on the November election ballot may have decriminalized marijuana in amounts under an ounce starting today, but local law enforcement says it's not that simple.

"It's just that people have no idea of the repercussions," North Adams Commissioner of Public Safety E. John Morocco said. "First of all, they have no clue how much an ounce of marijuana is. It's a lot -- it will fill a quart-sized plastic bag.

"That's the size they sell it in. Wholesalers sell ounces to retailers. Then the retailers will break it into denominations like dime bags and nickel bags."

The new law also states that those being issued a citation need not provide identification to prove who they are -- even if they are a minor. District Attorney David Capeless said this is major oversight in the law, which passed with roughly 65 percent of the vote.

"That's an ambiguity -- if not an outright failure -- of this law," ha said. "There's no mechanism to enforce the $100 fine."

Morocco agreed and gave an interesting comparison to how these violations could be handled.

"If you don't license your dog, there's a fine the first time but if you continue to refuse, you'll eventually wind up before a judge," he said. "You can't in this particular instance now."

Both Morocco and Williamstown Police Chief Kyle Johnson said their towns are looking into a new bylaw suggested by Massachusetts Attorney General Martha Coakley that would prohibit the use and possession of marijuana in public.

"Basically it prohibits the smoking or possession of marijuana in any public place," Johnson said. "The town has the option of seeking three different dispositions from that -- criminal, noncriminal or both."

Morocco said there is also an issue with the possession limit being so large. He said it could become more difficult to tell who is dealing and who is simply using.

"Nobody in the history of Massachusetts has ever gone to jail for possession of a small amount of marijuana -- ever," he said. "When it gets into that is possession with the intent to distribute. I'm hoping we'll find out sooner or later the one-ounce rule means one ounce. One ounce packaged for distribution; it will be charged that way and still be a criminal violation. That's the way we're going to treat it until we're told otherwise."

Capeless said while the new law is a problem, it will not effect pending cases involving marijuana and will not impact cases of marijuana distribution.

"Marijuana is still illegal and it's contraband," he said. "So officers are not only authorized but obligated to seize it. And when they have reasonable cause that someone has marijuana or more marijuana than is immediately apparent, they will be searching them."

Capeless and many other state district attorneys were against the new law, mainly because of the message it could send to area youth.

"We're concerned it's going to make marijuana more available, and more importantly, it sends a message to kids that marijuana is not a big deal and it isn't harmful to them," he said. "I recently attended a fifth grade D.A.R.E. graduation and was struck by how hard its going to be to enforce D.A.R.E.'s message while adults are saying marijuana is OK."

No one in North County has been cited for marijuana violations yet, but Johnson said his department is ready with standard bylaw citation pads and will enforce it just as if it was still a criminal offense -- though he isn't sure how people will react to this new freedom.

"It's hard to say because it's a new law," he said. "It may be prevalent because people think the $100 ticket is not a deterrent. It may not be hidden as much as when it was a criminal offense. But it's brand new, so who knows how people are going to react to it? We'll enforce it just as it was when it was criminal."

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"At a glance: marijuana reform"
Berkshire Eagle Staff, Saturday, January 03, 2009

. The new law replaces the criminal penalties for possession of one ounce or less of marijuana with a new system of civil penalties, to be enforced by issuing citations, and would exclude information regarding this civil offense from the state's criminal record information system.

. Offenders age 18 or older would be subject to forfeiture of the marijuana plus a civil penalty of $100. Offenders under the age of 18 would be subject to the same forfeiture and, if they complete a drug awareness program within one year of the offense, the same $100 penalty.

. Massachusetts is the 12th state in the nation to decriminalize possession of relatively small amounts of marijuana, though police officials reject the notion that an ounce is a small quantity of the drug.

Source: Berkshire Eagle research

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Berkshire County, Massachusetts
"Budget questions loom over DA's office: David Capeless does not want to lay off part of his staff, but economic woes might say otherwise."
By Conor Berry, Berkshire Eagle Staff, Wednesday, February 04, 2009

PITTSFIELD — When the state's fiscal crisis graduated from looming threat to hard reality, the commonwealth's 11 district attorneys voluntarily cut their budgets to ease the burden. But any further reductions could lead to job losses, according to Berkshire County's top law enforcement official.

"I don't want to cut staff," said District Attorney David F. Capeless. But, Capeless said, he may be forced to consider furloughs if the governor's proposed cost-cutting measures, which include trimming another $230,000 from Capeless' budget, win passage.

Capeless said the Berkshire District Attorney's office operates with 53 employees — not including himself — and a "bare bones" budget of $3.66 million, which recently was slashed by $91,640.

That voluntary reduction, which pared the district attorney's current operating budget to around $3.57 million, was necessary "in order to do our part in this fiscal crisis," Capeless said. However, more cuts could hamstring his crime-fighting operation, he said, possibly requiring the furlough option or other reductions.

As president of the Massachusetts District Attorneys Association, Capeless recently proposed a plan that would beef up pay for prosecutors and public defenders, while simultaneously saving the state around $50 million. But Gov. Deval L. Patrick rejected the proposal, said Capeless, who remains optimistic that the Legislature will be more sympathetic to prosecutors' budgetary needs. The proposed spending plan for fiscal 2010, which begins July 1, is now in the hands of state lawmakers, who are not expected to act on it for several more months.

District attorneys have been "woefully underfunded for years," said Capeless, noting that the roughly $200 million budget for the Committee for Public Counsel Services, or CPCS, is nearly double the money spent on all 11 district attorney offices combined.

"We are not just important," Capeless said of prosecutors, "but an absolutely essential public service."

Entry-level prosecutors and public defenders earn roughly the same annual salary, or around $37,000. But Capeless pays his new prosecutors around $40,000, he said. Capeless and Western Massachusetts' two other district attorneys earn just shy of $149,000 annually, while top prosecutors in Capeless' office make more than $80,000 a year, including First Assistant District Attorney Paul J. Caccaviello ($100,000) and Assistant District Attorney Joseph A. Pieropan ($96,000).

The proposal rejected by Patrick would have "realigned" the CPCS, according to Capeless, who did not provide specific details of his plan.

District attorneys must prosecute all criminal cases, Capeless said, while only two-thirds of those cases are handled by CPCS public defenders. Capeless, like Cape & Islands District Attorney Michael O'Keefe, his predecessor in the statewide district attorney's association, said the state should spend more money training and staffing CPCS, which relies heavily on private attorneys who work as "bar advocates" and are paid hourly rates that can drive up costs.

O'Keefe has said that CPCS staff attorneys should be handling that caseload, not private attorneys who earn more money. Ultimately, the taxpayers are left to foot the bill, according to critics.

William J. Leahy, chief counsel for CPCS, said his agency also would suffer if Patrick's proposed cuts are enacted. The governor's plan would reduce the agency's $200 million budget by roughly 18 percent, which includes supplemental costs, Leahy said.

Although some prosecutors like to complain about CPCS' alleged profligacy, audits have determined that the agency is cost-efficient and "operationally sound," Leahy said.

"We have reached out to the district attorneys because we know they have a contrary view," he said on Tuesday.

The ongoing funding dispute is not new, Leahy said. O'Keefe, a vociferous critic of CPCS funding, "does not have a good understanding of how we work," Leahy said.

Prosecutors have local and state police at their disposal and full access to the state police crime lab, Leahy said, while CPCS must conduct its own costly investigations.

"The defense role is a lot more complicated," he said. "It's not a fair comparison."

Leahy said he hopes to extend an olive branch to Capeless, O'Keefe and other district attorneys when prosecutors and CPCS officials meet to discuss budget matters in the coming weeks.

If Leahy had it his way, he said, more money would be spent on prosecutors and public defenders alike.

"We think that the DA's are underfunded and that we're underfunded," he said.
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Berkshire County District Attorney David F. Capeless discusses the relative ease with which young people can access the communication technology that enables inappropriate text messaging.
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"DA's office raises awareness about 'sexting'"
By Conor Berry, Berkshire Eagle Staff, Wednesday, March 4, 2009

PITTSFIELD — A high-tech trend known as "sexting," in which nude or sexually explicit photos are transmitted by cell phone or spread over the Internet, is prompting county officials to take proactive steps to combat the illicit activity before it takes root.

The district attorney's office, in conjunction with a local cable TV station, plans to produce anti-sexting programs that will begin airing in county schools this spring.

Sexting, a disturbing trend popular with a growing number of adolescents and teenagers, is not yet a problem in the 6,300-student Pittsfield school district, according to Superintendent Howard "Jake" Eberwein III, who hopes to keep it that way.

"We're not seeing it as a prevalent issue," he said, noting, however, that school officials are concerned about the growing phenomenon.

Meanwhile, at least one county high school has already had to confront the trend head-on.

"We're still dealing with an incident that occurred at one of the area high schools," said Berkshire District Attorney David F. Capeless, who declined to identify which one.

"I'm concerned about stigmatizing one school," said Capeless, if, indeed, sexting is also prevalent at other county schools.

More than a dozen local high school students were implicated in the sexting incident, which involved the circulation of explicit photos of a local girl, according to Capeless, who declined to provide further details. No one has been criminally charged in connection with the case.

"The primary thing we've sought to do in that case ... is to stop what was going on," said Capeless, adding that he would prefer to deal with such matters outside the criminal justice system. If need be, though, offenders could be charged with any of a number of felony crimes, Capeless said.

Despite the insistence of some teenagers that sexting is fun, flirtatious, and an easy way to test the romantic waters, so to speak, the issue of consent is moot, Capeless said.

"There's no consenting minors," he added.

Nationwide, 22 percent of teenage girls and 18 percent of teenage boys admit to electronically sending or posting nude or semi-nude images of themselves, according to a survey by the National Campaign to Prevent Teen and Unplanned Pregnancy and Cosmogirl.com.

Many of the middle- and high school-age students surveyed in the recent poll say sexting is nothing more than a high-tech way to flirt. But law enforcement officials say this sort of flirtatious behavior could fall within the realm of criminal behavior, triggering possible child pornography charges that, upon conviction, would require a person to register with the state's Sex Offender Registration Board.

In Massachusetts, in fact, anyone who sends or receives explicit sexual images could run afoul of the state's tough child porn laws, all of which are felony offenses punishable by jail, fines or both.

In an effort to take a proactive approach to the growing problem, Capeless held a press conference at his office Tuesday morning to educate people about the dangers of the sexting phenomenon, which has received heavy media attention in recent weeks.

What's most disturbing, said Capeless, is the blasé attitude of those who engage in this sort of activity. "It concerns me a great deal," he said.

Sexting generally happens like this: An image — particularly a photo of a nude or partially nude minor — is typically transmitted from one cell phone to another, then further disseminated through e-mail and online social networking Web sites. If the image winds up on MySpace or Facebook, for example, it potentially can be viewed by thousands of people.

This sort of activity is happening all over the nation, including the Berkshires, according to Capeless, who hopes to end the trend with education. His office is producing anti-sexting programs with PCTV, a local public access station, with a goal of showing the videos at schools throughout the county this spring.

"What we're setting out to do here is to educate parents and kids about the very real and far-reaching consequences of this sort of behavior," Capeless said. "The audience we're really trying to reach is the parents."

The joint survey by the National Campaign to Prevent Teen and Unplanned Pregnancy and Cosmogirl.com included responses from 1,280 teenagers and young adults between the ages of 13 and 26. Respondents were polled about their use of and attitude toward cell phones, computers and other digital communication devices.

Among the more disturbing results, according to Capeless, is the derelict attitude of respondents, 49 percent of whom admitted to sending sexually explicit messages and 56 percent of whom acknowledged receiving such messages.

Further, 33 percent of teenage boys and 25 percent of teenage girls say they have received nude or semi-nude images, while 33 percent of respondents between the ages of 20 and 26 say they have sent or posted images of themselves.

According to Massachusetts criminal law, sexting may violate child pornography laws ranging from "posing a child in a state of nudity or sexual conduct," "dissemination of pictures of a child in a state of nudity or sexual conduct," "possession of child pornography" or "dissemination of harmful matter to a minor."

More information is available on by logging on to the district attorney's Web site at www.mass.gov/berkshireda, then clicking on the "Crime Prevention" category.
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"Towns weigh ban on pot use"
By Scott Stafford, Berkshire Eagle Staff, Saturday, March 07, 2009

Even though 65 percent of voters in Massachusetts agreed with the ballot initiative known as Question 2 — the decriminalization of less than an ounce of marijuana — last November, proponents are saying that members of the law enforcement community are trying to recriminalize it.

Question 2 reduced the violation's punishment to a citation, a $100 fine, and confiscation of the marijuana. It allowed towns to separately address public use of the substance. That is the clause, Question 2 proponents say, that some towns are using to recriminalize the possession and use of small amounts of the drug.

According to Emily LaGrassa, a spokes woman for the Massachusetts attorney general's office, the municipal law unit provided sample bylaw language at the request of the Executive Office of Public Safety.

The sample language gives three enforcement options for public consumption of marijuana — by criminal indictment, criminal complaint or noncriminal disposition.

'Why bother to do this at all'

ACLU officials argue that it is unnecessary to criminalize the offense, because under Question 2, public users of marijuana can still be fined $100 and lose their stash.

"The real question is why bother to do this at all when there is not a problem of people lighting up in public when they're still subject to a fine," said Sarah Wunsch, staff attorney for the ACLU Foundation of Massachusetts in Boston. "In places where states have decriminalized, this has not been a problem — they have not seen an increase in public use."

"We're not sure that any of this is necessary, unless there is there is some evidence that it has become a problem in a particular community with public use," said Bruce Mirken, director of communications for the Marijuana Policy Project based in Washington, D.C. "But we haven't heard any such reports."

He noted that the voters were clear in saying that "penny ante use" of marijuana should not be a criminal offense.

'Tactic clearly unacceptable'

"Our preference would be for folks to just relax and let the local enforcement play out as the law is written and see if any local adjustment is needed," he said. "If a criminal complaint is going to be used as an aggressive way of cracking down on people, that sort of tactic would be clearly unacceptable. Something like this could be used in a manner that's totally contradictory to what the voters wanted."

In Adams, town attorney Edmund St. John III pointed out the conundrum, and members of the board of selectmen reworded their bylaw on public consumption of marijuana to remove the criminality of the violation.

North Adams Police Commissioner E. John Morocco said he recommended that city council adopt the bylaw including the criminal charges.

"I do not have a problem with making that a criminal offense," he said. "I completely agree with it and I completely disagree with Question 2. Why should it be a criminal offense to drink a beer in public, and not a criminal offense to smoke a joint in public? It doesn't make sense."

The Pittsfield Police Department also forwarded the proposed bylaw to city council.

"My interest is that if it is (being smoked) at a bus stop or a city park where other people might be annoyed or alarmed, the officer would have discretion" to pursue criminal charges against the violator, said Capt. John Mullin, spokesman for the Pittsfield Police Department.

He added that public use of marijuana has not been a problem in Pittsfield.

Since the passage of Question 2, four citations have been issued in Pittsfield for the possession of less than an ounce of marijuana, Mullin said.

Mayor James M. Ruberto favors the bylaw proposed, saying that like the public consumption of alcohol, it should be treated as a criminal offense.

Question 2 proponents urged caution in considering these bylaws.

"If there is a pattern of local police sidestepping (Question 2) and using these local bylaws as a way of doing that, that's a real problem and they could find themselves with some very unhappy constituents," Mirken said.

"The voters wanted it decriminalized," Wunsch said. "And this does seem to be an effort by those who opposed Question 2 to continue to treat possession of small amounts of marijuana as a big problem when it isn't. What's the need? Why rush into it? These towns have much more important things to deal with right now."
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"Selectmen: AG circumventing law"
By Glenn Drohan, North Adams Transcript, March 5, 2009

ADAMS -- Two selectmen charged state Attorney General Martha Coakley and the Massachusetts Police Association with attempting to make possession of less than an ounce of marijuana a crime again through a proposed bylaw they are recommending to communities throughout the state.

Selectmen Edward MacDonald and Donald R. Sommer both said state and town voters had spoken clearly by passing Question 2 by a 60 percent majority in November last year, showing they wanted possession of small amounts of pot decriminalized.

Yet, they said, a portion of the bylaw recommended by Coakley states: "This bylaw may be enforced through any lawful means in law or in equity, including but not limited to enforcement by criminal indictment or complaint."

MacDonald said that language would defeat Question 2's intent to avoid giving young teens who may make a mistake or two a criminal record that could come back to haunt them.

"For us to change the intent of the law and do this, I don't think it's right," MacDonald said. "If the AG doesn't like it, she can stop running for U.S. Senate and go ahead and file a brief. She hasn't done that."

"If we adopted this, we're putting the crime back in it," Sommer added. "I have no problem with a $300 fine, but I do with putting the criminal part back in."

The discussion came up when Police Chief Donald Poirot presented Coakley's recommended bylaw in lieu of one that had been proposed by the Massachusetts Police Association.

That bylaw would have allowed police to arrest people who smoked pot in public places -- again with the potential of giving offenders a criminal record.

Town Counsel Edmund St. John III said the attorney general had since ruled that arresting offenders would violate the terms of Question 2. However, he said, Coakley further ruled that officers could summon offenders to court and subsequently fine them through criminal statute.

Both MacDonald and Sommer said they had major issues with that.

Poirot said he had no problem with eliminating the language referring to "enforcement by criminal indictment" and simply pursuing citations.

"All I'm looking for is a method of enforcement, so when we catch someone smoking in a public place we can do something about it," he said.

Selectman Michael G. Ouellette asked what the current law allows, since the passage of Question 2. Poirot said his officers can issue a $100 citation for possession of marijuana but can take no action for consumption of marijuana.

The bylaw under consideration would allow a fine of $300 for possession of less than an ounce marijuana or for consumption of marijuana in a public place. MacDonald asked whether the town could give larger fines to second or third offenders, but Poirot said the law currently limits fines to a maximum of $300.

Sommer moved that St. John draw up a new bylaw, eliminating all references to any criminal offense, to be voted on at the next regular meeting. MacDonald, Ouellette, Chairman Joseph C. Solomon and Selectman Joseph R. Dean Jr. joined him in the unanimous vote in favor.

The bylaw will appear as a warrant article at the annual town meeting in May.

In other business, the board did the following:

* Voted unanimously to write a letter to Gov. Deval Patrick asking that the state move swiftly to enter into an agreement to lease Bascom Lodge on Mount Greylock to Gerry Sanchez, whose proposal the board prefers over that of the other finalist.

* Agreed to a request from the Adams Agricultural Commission that the farmers market be moved back to the Depot Street parking lot and be covered by the town's liability insurance.

* Granted permission for Best Soccer to use the Valley Street field at a cost of $50 per day for a four-day British soccer camp for children.
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Pittsfield, Massachusetts
"DA's office faces cuts"
By David Pepose, Berkshire Eagle Staff, Friday, April 17, 2009

PITTSFIELD — Just as the county's top law enforcement official heralded a daytime drug raid that netted a local gang leader, Berkshire District Attorney David F. Capeless was also contemplating the prospect of a dramatic cut to his funding.

"I'm very concerned about my budget and the effect it might have," Capeless said, just hours after his office participated in a large-scale drug bust in Pittsfield. "The last thing I want are layoffs, but this might push us to that."

The DA's office already made a 3 percent voluntary spending reduction this fiscal year. Now, the House of Representative's proposed 2010 budget would cut 7.3 percent — or $270,000 — in the DA's funding for the fiscal year that begins July 1. The $3.39 million given to the Berkshire County office is the least amount of funding given to any DA's office in the state.

"We already have a very lean budget," Capeless said. "Eighty percent of our funds are already committed to going to salaries and rent. ... This is difficult, and we're going to have to see where the Senate is going to go with this."

With 51 staff members, the Berkshire District Attorney's Office is the smallest in the state. Capeless said he has not filled positions that have become vacant. With the latest cuts, he said he may soon have to resort to furloughs or layoffs.

Capeless expressed frustration that while the District Attorney's office was getting a budget cut, the Committee for Public Council Services — which provides for public defense lawyers — was getting an increase of $10.5 million.

"I and all the other DAs believe firmly in the right to counsel and the right to counsel for indigent persons," said Capeless, "but I am bewildered at the idea that in these tough fiscal times, when crime is rising, that our legislators would consider this to be a priority, and to do this at the expense of public safety."

The CPCS handles about two-thirds of all cases in the state.

On Thursday, local and federal law enforcement authorities raided three Pittsfield sites, capturing drugs, cash, money, and a reputed leader of the Bloods street gang. The crackdown should help stem local violence and drugs, authorities said.

With Thursday's action, and six shootings and several high-profile stabbing cases having occurred just four months into the new year, Capeless urged legislators to give his office more resources, not less.

"We have a responsibility that we're committed to to protect the public, and I'm afraid of our ability to carry through on this responsibility if we're not given the proper resources," Capeless said. "I have a staff that's exemplary in their hard work and their commitment to the responsibilities that we have, but even they have their limits of what they can accomplish in a 24-hour day."

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"Capeless: Davis a 'major figure' in drug trade - Two others also arraigned"
By Conor Berry, Berkshire Eagle Staff, Saturday, April 18, 2009

PITTSFIELD — A man characterized by police as a gang leader and "a major cocaine trafficker" wasn't wearing pants when officers found him hiding in the basement of his Morningside apartment on Thursday, according to law enforcement officials.

That was among the new details provided by investigators on Friday, following the arraignments of Joseph S. Davis — an accused drug kingpin with an extensive criminal history — and two of his associates, all of whom are being held at the Berkshire County Jail & House of Correction.

Davis, 24, and Ashley Martin, 21, are being held without bail, while Genese Latini, 27, was detained on a probation violation. The trio was arrested in connection with three simultaneous raids on Thursday, including two in the city's Morningside neighborhood and one near Springside Park.

District Attorney David F. Capeless called David a "major figure" in the city's drug trade.

Davis seemed to take his arrest in stride, stating that he was prepared to serve time behind bars as "the price you pay for being in the game," police said. Many involved in the illegal drug trade refer to it as "the game," according to police.

All told, investigators seized about $5,500 in cash and $30,000 worth of drugs, including 217 grams of cocaine, less than 4 ounces of marijuana, 25 bags of heroin, and a chunk of heroin equivalent to another 25 bags, according to an inventory of items seized by drug officers involved in the investigation.

Police said they also seized a 12-gauge Ithaca shotgun, one .22-caliber round of ammunition, a knife, and drug packaging materials, including digital scales and plastic bags.

Capeless, during a press conference at his Pittsfield office on Friday, praised law enforcement officials for building a solid case against Davis and his alleged cohorts. Capeless claimed the capture of Davis and the disintegration of his illicit narcotics operation would lead to a reduction in violence in Pittsfield, the scene of numerous slashings and stabbings since the fall and a half-dozen shootings since February.

The district attorney said the ongoing investigation — conducted by the Berkshire County Drug Task Force and the Pittsfield Police Department's drug unit, with special assistance from county and federal law enforcement agencies — is expected to lead to more arrests. Capeless said it would be imprudent to discuss Davis' potential involvement in the recent violence while the investigation continues.

In more oblique terms, however, he said, "There's a direct connection between drug dealing and violence: Wherever you have drug dealing, you have violence."

Davis' drug organization "contains members of the local Bloods street gang," said acting Pittsfield Police Chief Michael J. Wynn.

Davis, Martin and Latini pleaded not guilty to a host charges, including felony drug trafficking and distribution charges, at their arraignments before Judge Frederick Rutberg in Central Berkshire District Court on Friday.

Davis, who was indicted on armed carjacking charges last year, is being held without bail and is due back in court on Tuesday. His adult and juvenile record includes numerous offenses ranging from assault to drug charges, among others, according to court records.

Martin's bail was revoked because of other pending drug charges, which means she can be held without bail for up to 60 days. After that, she's eligible to post $20,000 for her release. Martin is due back in court for a May 26 pretrial hearing.

Latini, who has a minimal record, was on probation when she was arrested in connection with this case. She'll remain behind bars until a May 13 probation violation hearing is held. After that, she's eligible to post $10,000 for her release.

Police said Davis and Martin lived together at 132 Lincoln St., the primary raid target on Thursday. At around 12:40 p.m., heavily armed police stormed the Morningside apartment, where Davis was found "naked except for a white T-shirt" in the basement, according to case records. Martin surrendered several hours later at police headquarters, while Latini was arrested around 3:25 p.m. at her Weller Avenue home, which also was raided by police.

The third raid location was a detached garage located at 70-72 Pine St. in the Morningside section. The shotgun was discovered there, according to police, who did not provide specific details about Davis' connection to that location.

During an interview with Massachusetts State Police Lt. David B. Foley, a member of the Berkshire County Drug Task Force, Davis reportedly denied any knowledge about the gun, but admitted the drugs were his.

When Foley told Davis that he had to start thinking about his family and advised him that Martin and Latini also would be charged with cocaine trafficking, Davis allegedly stated: "Any drugs found here (132 Lincoln St.) or over on Weller (8 Weller Ave.) is mine, I'll admit to that. But I don't know anything about no guns on Pine Street."

Pittsfield Police Detective Sgt. Marc E. Strout, commander of the city's drug unit and a member of the countywide drug task force, said narcotics officers will continue to turn up the heat on drug dealers throughout the Berkshires.

"We know who you are," said Strout, "and we're coming for you."
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"Failing miserably on an ethical obligation"
By Rinaldo Del Gallo, The North Adams Transcript, Op-Ed, June 12, 2009

The primary duty of a prosecutor is not to convict but to see to it that impartial justice is done -- for the guilty as well as the innocent.

As the appellate court put it in the Bernard Baran case: "A prosecuting attorney's obligation is to secure a fair and impartial trial for the public and for the defendant. His obligation to the defendant in this regard is as great as is his obligation to the public."

It is true District Attorney David Capeless inherited the case and was not involved in its original prosecution, but in trying to uphold the conviction, he vouched not only that Baran was guilty, but also that the trial Baran received was fair. If Baran did not receive a fair trial, it was DA Capeless' ethical duty not to contest the motion for a new trial. Instead, he should have consented to the motion and retried the case.

In an excoriating opinion, the appellate court concluded: "It cannot be said that the defendant received anything close to a fair trial."

At the original trial, the prosecution made repeated reference to Baran's homosexuality, which the court correctly noted was an "explosive topic" in the ‘80s and "had no relevance to the charged crimes." The prosecution culminated in closing arguments that Baran "could have raped and sodomized and abused those children whenever he felt the primitive urge to satisfy his sexual appetite."

As to whether the prosecution improperly failed to hand over exculpatory evidence that might have prevented Baran from spending 22 years in prison, the appellate court wrote, "While the record does not settle the question whether the unedited videotapes were deliberately withheld by the prosecution, there are indications in the trial transcript consistent with that contention." In other words, we do not know for sure, but it smells fishy.

The unedited tapes that were not turned over revealed significant vacillation and uncertainty on the part of many, if not all, of the children interviewed. The tapes also contained considerable material from which it could be inferred that the children's testimony was coached. The court noted that it was "particularly powerful" that in numerous instances various complainants denied that the defendant had engaged in any misconduct. Also not turned over were documents from the Department of Social Services that a "boy A" and a "girl E" each had been molested by their respective mother's boyfriends.

The closing arguments were ruled to have constituted flagrant prosecutorial misconduct. It was stated that the prosecutor's closing "contained a number of passages apparently designed to inflame the jurors' passions." According to the Massachusetts Rules of Professional Conduct, a prosecutor shall "not assert a personal opinion as to the justness of a cause, as to the credibility of a witness or as to the guilt or innocence of an accused."

As for improperly vouching for the credibility of the witnesses, the prosecution argued, "if ever there was a case where the ends of justice literally cry out for a guilty verdict, this is that case because truth is the mother of justice, and in this case, truth came literally from the mouths of babes."

The prosecutor began his closing by exhorting the jury to return a guilty verdict "in the name of justice and decency." The prosecution ended, "The only ones who win are the people of the Commonwealth of Massachusetts, who win when justice is done. And the only ones who lose are the people of the Commonwealth of Massachusetts, who lose when justice is thwarted ... I beseech you -- I beg you -- think of those children and bring back a verdict of guilty on each and every one of these charges."

The lines of what is prosecutorial misconduct are not always clear. But when a prosecutor makes a closing argument that sounds like the jury must deliver a guilty verdict in the name of truth, justice, and for the love of children, (rather than the facts indicating guilt), and then goes on to state that justice will be thwarted if the jury fails to deliver a guilty verdict, that line has been crossed.

Had the case been retried, there would have been a serious issue of whether individuals that were ages 2-4 could honestly remember the crime, or whether that would have been during the period of childhood amnesia.

I asked Professor Elizabeth Loftus of the University of California, one of the nation's foremost experts on childhood memory, what is the likelihood of a false memory in an adult regarding sexual abuse that they allegedly experienced at age 2, 3 or 4, if people were repeatedly subjected to leading questions and/or questioning wherein it was suggested that there was a "correct answer?" She replied, "Suggestions can lead to false memories. They can make people believe they had experiences as children that they didn't really have." She added, "Adults don't have concrete reliable memories for things occurring before or at about age 3. This phenomenon is called ‘child amnesia.'"

DA Capeless would have had a tough case given the effects on the adult mind of the discredited interviewing techniques experienced during or slightly after the period of childhood amnesia. Arguably, since tapes likely to have contained exculpatory evidence (given the case's track record) have been lost, there was an additional ground not to retry the case. But DA Capeless had an ethical duty not to defend this farce of a "trial," an obligation on which he failed miserably.
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Rinaldo Del Gallo is a practicing attorney whose freelance columns have appeared in newspapers across the country.
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"Local case shines light on parental rights"
By Benning W. De La Mater, Berkshire Eagle Staff, Sunday, August 23, 2009

PITTSFIELD -- You walk in the front door of your home, take two steps and get punched in the face -- the photos of your 5-year-old son are missing from the dining room wall.

You sprint to his bedroom and take an uppercut to your gut -- all of his drawers are open, his clothes ... gone.

Check the other rooms. His video games ... gone. Your girlfriend's clothes ... gone.

Now comes the dose of reality -- she took your son from the home the three of you lived in.

That disappearance is what Richard Rodriguez experienced on the morning of Feb. 4, 2008, the day after the New York Giants beat the New England Patriots in the Super Bowl.

That's the day his girlfriend, Tina Marie Helfer, and their son, Richard "Ricky" Rodriguez Jr., vanished from their Pittsfield apartment.

Since then, Rodriguez, a 41-year-old clerk at A-Mart on North Street, said he has learned through computer postings and phone records that Helfer was having an Internet relationship with a man in Kansas and moved there with Ricky to start a new life.

Rodriguez hired Pittsfield lawyer Rinaldo Del Gallo III, a family law attorney and spokesman for the Berkshire Fatherhood Coalition, and on July 20, Berkshire Family and Probate Court Judge Edward J. Lapointe granted Rodriguez temporary custody of Ricky, now 7.

But in a case that shines a spotlight on parental rights in out-of-wedlock custody cases, the judge's ruling hasn't brought Ricky back, and Rodriguez has no legal standing to file kidnapping or missing-person charges.

In this situation, it's Dad vs. Mom, and Mom remains in charge of Junior, apparently in a state where the custody ruling doesn't apply.

"I just want to see my son again," Rodriguez said. "I miss having him around. He was my entire life."

The following details were told to The Eagle by Rodriguez. Attempts to reach Helfer or several of her friends who remain in the area were unsuccessful. When a reporter visited Helfer's father, John, at his home off of Holmes Road recently, Helfer said he knew nothing about the whereabouts of his daughter or Ricky.

He declined to comment further and closed the door.

Rodriguez met Helfer, now 40, in 1998 at the Tyler Street Cafe, just a few months after he moved from Long Island to find work. She was a 1986 graduate of Pittsfield High School and a former manager at Kentucky Fried Chicken on East Street.

Rodriguez was raised in a foster family. He moved here because he had friends in the area.

Rodriguez said the two fell in love almost immediately and moved in together shortly thereafter. He said they didn't marry because Helfer received disability checks, and their combined income would have dropped if they had.

They didn't make much, but they managed, renting an apartment on Wilson Street and pooling their money.

"We had a great relationship for eight years," Rodriguez said.

Ricky was born on Feb. 6, 2002. Rodriguez said he was a spunky kid who loved to hear stories about pirates, spent hours with his parents playing in the snow, and enjoyed dressing up as Superman.

The couple's relationship soured, Rodriguez said, after Helfer slipped at work and herniated several discs in her back. Out of work, she turned her attention to their computer, spending hours in front of it every day, sometimes deep into the night.

Rodriguez said the two grew apart. They started sleeping in different rooms but vowed to stay together to raise Ricky.

Outside of a shoving match early in their relationship, Rodriguez said there was no physical or mental abuse.

"I never gave her any reason to leave," he said.

Michael J. Wynn, Pittsfield's acting police chief, said there were never any reports of domestic abuse at the couple's residence.

Late in 2007, Rodriguez confronted Helfer about computer postings that he said showed correspondence with a man. Helfer didn't deny it but said, according to Rodriguez: "I'm just doing it for fun. It doesn't mean anything."

With his favorite football team -- the Giants -- in the Super Bowl that year, Rodriguez was invited to a friend's house in Lanesborough to watch the game on the evening of Feb. 3, 2008. He hadn't planned on staying over, but Helfer told him to enjoy himself, have a few drinks and spend the night.

The opportunity to party with the guys sounded good, so Rodriguez kissed Ricky goodbye and headed out. When the Giants won, he called home to see if Ricky had watched.

The two shared congratulatory exchanges, and Rodriguez told his son, "Get some sleep."

The next morning, two days before he was to turn 6, Ricky and Helfer were gone.

Rodriguez said Helfer nearly emptied their joint checking account, leaving just $20 out of $770.

Distraught, Rodriguez called his foster brother, who lives in Maryland, for advice. The brother told him to call Pittsfield Police.

Rodriguez can't file a missing-person report or ask authorities to pursue kidnapping charges because Massachusetts recognizes the mother as the sole custodian in out-of-wedlock arrangements. But five days after calling his brother, Rodriguez hired Del Gallo, an outspoken advocate for father's rights who immediately began filing motions in family court on Rodriguez's behalf.

Del Gallo said the law concerning out-of-wedlock custody arrangements is flawed.

"The fundamental problem is that out-of-wedlock fathers are treated like they don't exist in the statutes until a court says otherwise," he said. "They have no standing. It's completely gender biased."

Professor Charles P. Kindregan, who teaches family law at Suffolk University Law School in Boston, said he doesn't believe the law favors out-of-wedlock mothers, but he did say that fathers need to take initiative.

Kindregan, given specifics of the case by The Eagle, said Rodriguez could have protected his rights as a father when Ricky was born if he had had Helfer sign an acknowledgment-of-paternity document that stated he was the biological father.

"This is all very interesting, but in the end the father has no legal standing," said Kindregan, the author of "Family Law and Practice," a four-volume guide on family law practice in Massachusetts. "He [Rodriguez] didn't do anything to protect his legal rights as a father. Unless they can prove the child's in danger, there's no criminal case.

"And the question remains, ‘What is the child's home state?' And since he's allegedly been living in Kansas for more than six months, then that's his home. Kansas has jurisdiction over the case. The father would have to be adjudicated the father in Kansas to win custody."

In the early weeks after Helfer and Ricky went missing, Rodriguez and Del Gallo searched for clues. A copy of phone records showed several calls to a Kansas number over a two-month span leading up to that day. One call even was placed the night of the Super Bowl.

Rodriguez said he called the number repeatedly. A man picked up once and quickly hung up. The line was disconnected within two weeks.

Rodriguez said he appealed to one of Helfer's friends, who confirmed for him that Helfer did take off for Kansas.

"She told me she didn't agree with what Tina had done," Rodriguez said. "She told me that Tina had Ricky calling that guy ‘Dad.' "

The friend, feeling badly for Rodriguez, called Helfer in late February of last year and had her put Ricky on the phone. The friend handed the phone to Rodriguez. They spoke for about a minute.

"I asked him how he was doing and told him that I missed him," Rodriguez said. "As soon as I told him -- ‘Listen, Daddy didn't do this. This wasn't my idea for you to leave' -- Tina hung up the phone. That's the last time I heard his voice."

Rodriguez said several neighbors told him they saw Helfer carrying boxes to a van that Rodriguez believes was owned by one of her friends. Helfer told the neighbors she was cleaning out the basement.

In a preliminary hearing overseen by Judge Lapointe on May 5 of this year, Lapointe ordered the Massachusetts Department of Revenue to forward information on the pending custody hearing to Helfer. A June 15 court date was set.

Del Gallo said the DOR was aware of Helfer's whereabouts because the woman had her disability checks forwarded to a Kansas address.

Helfer never showed up for the court date. Lapointe, in the July 20 ruling, gave temporary custody to Rodriguez.

A full-custody hearing is planned for Nov. 9, when both parties are required to be present to state their cases.

But Del Gallo said he believes the temporary custody order is enough to push several actions into motion. For one, he wants the Pittsfield Police to enter Ricky's name into the Central Registry for Missing Children.

Secondly, he has asked Wynn and Berkshire District Attorney David F. Capeless to pursue criminal charges, namely kidnapping, against Helfer and enlist the support of the FBI in finding Ricky and seeking extradition.

"She doesn't have the lawful authority to keep the child anymore," Del Gallo said. "She acted as the judge on her own, and this type of behavior should be against the law."

Wynn requested the help of both Capeless' office and City Solicitor Richard M. Dohoney to review the case.

In his review two weeks ago, Dohoney wrote that "at the time the child was relocated, it was done so with the knowledge and consent of the child's sole legal custodial parent," and therefore he is not a missing child.

Capeless said two weeks ago that he sees no criminality in the case and views it as a civil matter.

"This woman had legal custody and she leaves," Capeless said. "A year and a half later, we hear about a custody change. Our understanding is that this woman had no notice of the change; therefore, she is not knowingly involved in any criminal violation. It would appear that attorney Del Gallo is asking Pittsfield Police to do his job on a domestic custody case. It is not up to us to go looking for her. There is no criminal case."

Del Gallo argues that Massachusetts General Law Chapter 208, section 30, called the "removal statute," says it's illegal to remove a child from the state against the consent of the other parent when the child is a native of the state or has resided here for more than five years.

"This is typical of how many fathers are treated in custody cases," Del Gallo said. "I can't even consider how they're not treating this as a missing person's case. The woman is in willful ignorance of the law. We're very disappointed that they are not, at the very least, making any effort to find out the location of the child.

"They have a definitive legal responsibility to locate the child. We need the help of law enforcement here. We need to reunite a father and his son."

On Aug. 10, Wynn contacted Del Gallo and informed him that Pittsfield Police Capt. John Mullin had spoken to a staff member at the National Center for Missing and Exploited Children about the case and that the official said the organization would attempt to locate Ricky.

No information has come to light yet.

Rodriguez said he'll hold no hard feelings if Helfer just brings Ricky back. He said he's even willing to go to family counseling or work out a visitation plan, as long as he can be a part of Ricky's life.

"I miss having him around," said Rodriguez, who has since moved to a new apartment on Lenox Avenue in Pittsfield. "Pretty much, I don't have a life anymore. She took my life. I try to keep busy, work as much as I can. But I just sit around the house a lot.

"I was a foster child myself, and I never wanted Ricky to have that kind of life."

The only photos Rodriguez has are 18 pictures given to him by his friends. He still holds on to the few mementos that were left behind the day Helfer and Ricky departed. There's a box full of toys in his attic, things like Power Ranger action figures and board games.

On his kitchen table -- underneath an oven mitt, a pile of change and a set of keys -- sits an unopened "Pirates of the Caribbean" Monopoly game.

It was the present Rodriguez bought for Ricky's sixth birthday.

"I've already missed two of his birthdays now," Rodriguez said. "I raised him his whole life. This isn't fair."
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To reach Benning W. De La Mater: bdelamater@berkshireeagle.com, (413) 496-6243.
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District Attorney David F. Capeless
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"Capeless Running for Another Four-Year Term"
By Larry Kratka, Berkshire News Network via iBerkshires.com - February 4, 2010

PITTSFIELD, Massachusetts — Berkshire County District Attorney David F. Capeless will run for another term this November, saying he has a lot of unfinished business to tend to.

Budget cuts may have hit his office but he said he has made it work with the help of some truly dedicated people there. With all the media attention recently on crime in the Berkshires, Capeless said he's working on putting bad guys in jail and also conducting a major push in education and prevention, especially with teenagers.

He pointed to the creation of a Youth Advisory Board during this past term that includes a junior and a senior from each high school in the county. Capeless said the teens meet at his office once a month to talk about issues that are on the minds of today's youngsters and to give his office feedback so they can develop programs that successfully deal with teenagers.

Capeless is entering his sixth year in office. He was first assistant district attorney in 2004 when he was appointed as interim DA after District Attorney Gerard D. Downing died unexpectedly in December 2003. He ran successfully to complete Downing's term in November 2004 and re-elected unopposed for a full four-year term in 2006. He has nearly 30 years experience as a prosecutor.

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"Berkshire DA Capeless begins 2nd term"
The Berkshire Eagle, January 11, 2011

PITTSFIELD, Mass. (AP) -- Berkshire District Attorney David Capeless is expected to take an oath of office at the start of his second full term in office.

Capeless is scheduled to take the oath during a public ceremony at the Berkshire Superior Court on Tuesday afternoon.

Capeless is a native of Pittsfield and the son of former Mayor Robert Capeless.

In March, 2004, the career prosecutor was appointed by then Gov. Mitt Romney to succeed former District Attorney Gerard Downing, who died unexpectedly in December of 2003. Capeless was elected to his first, four-year term in 2006.

The Stockbridge resident is a graduate of the University of Pennsylvania and Boston College Law School.

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District Attorney David F. Capeless was sworn in Tuesday at the Berkshire Superior Court. (Lindsey Palatino / Berkshire Eagle Staff)

"Another four years for DA"
By Conor Berry, Berkshire Eagle Staff, January 12, 2011

PITTSFIELD -- District Attorney David F. Capeless was sworn in to a second full term as the county's top law enforcer during a ceremony Tuesday in Berkshire Superior Court.

Judge Daniel A. Ford, the court's presiding justice, administered the oath of office to Capeless, who ran unopposed in the November election.

"This event today is about the office of the district attorney," said Capeless, who, at one point in the ceremony, asked his entire staff to stand up and be recognized.

Audience members heartily acknowledged the prosecutors, state police investigators, victim advocates and support employees who round out Capeless' large staff.

Even though his name appears on the office door and campaign bumper stickers, Capeless said, it's the men and women of his office who deserve credit for doing "wonders" with limited resources and diminished funding.

Judge Ford, a former prosecutor himself, spoke at length of the trials and tribulations of being a prosecutor, a job in which dispassion and discretion are cardinal virtues in the pursuit of justice. Ford said Capeless "has won an expression of confidence" from the public, who have supported him in elections in 2004, 2006 and again last year.

Capeless, 58, outlined general objectives for the next four years, including ongoing efforts to combat gangs, drugs, bullying and domestic violence, while also safeguarding the most vulnerable members of society, including children and seniors.

The district attorney used the ceremony to announce that veteran prosecutor Robert W. Kinzer III has been elevated to second assistant district attorney, while a grant will allow prosecutor Gregory Bartlett to focus on fighting the "social ill" of domestic violence, a persistent problem in the county.

Capeless praised Kinzer, who turns 40 next month, as a "standout trial attorney" and valued member of his senior staff, which includes First Assistant District Attorney Paul J. Caccaviello and others. Kinzer replaces Joan M. McMenemy, who left last year to become a judge.

But Kinzer has big shoes to fill, said Capeless, citing past heavyweight second assistants such as McMenemy and Francis Spina, a Pittsfield native and Massachusetts Supreme Judicial Court justice.

Among the dignitaries who attended the swearing-in ceremony were Berkshire County Sheriff Thomas N. Bowler, Pittsfield Mayor James M. Ruberto and Bowler's predecessor, Carmen C. Massimiano Jr.

Capeless last faced a challenger in September 2006, when he defeated fellow Democrat and attorney Judith C. Knight in a primary to become the party's candidate for district attorney. With no Republican or other candidate on that November's ballot, Capeless glided to victory and, in January 2007, was sworn in to his first full, four-year term as district attorney.

In March 2004, Gov. Mitt Romney appointed Capeless as interim district attorney to replace Gerard D. Downing, who died while in office. Capeless went on to defeat attorney Timothy J. Shugrue in a November 2004 special election to serve out the remainder of Downing's term.

Before joining the Berkshire District Attorney's Office as first assistant in 1991, Capeless was an assistant district attorney in Middlesex County, where, from 1982 to 1990, he earned a reputation as a top-notch prosecutor.

In the Berkshires, the Pittsfield native carried on that tradition, successfully prosecuting a number of high-profile cases, including serial child-murderer Lewis Lent, who kidnapped and murdered 13-year-old Jimmy Bernardo of Pittsfield. Capeless also prosecuted Wayne Lo, whose 1992 shooting spree at Simon's Rock College killed two and injured four.

Capeless also successfully prosecuted Adam Rosier, who murdered 17-year-old Krystal Hopkins of Pittsfield. That case resulted in a 1997 landmark decision by the state Supreme Judicial Court, the first appellate decision in the nation to recognize the use of the short-tandem-repeat method of DNA testing. The method has since become the industry standard for forensic evidence testing.

Other big-ticket cases handled by Capeless included the 2004 prosecution of David "D-Boy" Baxter, who was sentenced to prison after his conviction for two downtown Pittsfield shootings, and the 2005 shooting death of Neil Olsen in Lanesborough by his wife, Patricia Olsen.

Capeless was named Prosecutor of the Year in 1997 by the Massachusetts District Attorneys Association.

Capeless is the son of former Pittsfield Mayor Robert Capeless and the grandson of Matthew Capeless, a former state representative and Pittsfield city councilor. A graduate of the University of Pennsylvania and Boston College Law School, Capeless lives in West Stockbridge with his wife, Betsy, and sons, Charlie, 15, and Sam, 13.
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To reach Conor Berry: cberry@berkshireeagle.com, or (413) 496-6249.
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Berkshire District Attorney David F. Capeless on Thursday announces his upcoming retirement as of March 15. He will be replaced by First Assistant District Attorney Paul Caccaviello, right. At left is Sheriff Thomas Bowler. Photo credit: Stephanie Zollshan - The Berkshire Eagle.

“Berkshire District Attorney David Capeless stepping down”
By Bob Dunn, The Berkshire Eagle, March 1, 2018

PITTSFIELD — Berkshire District Attorney David F. Capeless is stepping down from his position.
His last day will be March 15, he said Thursday morning during a press conference at his North Street office.

"It's time," Capeless said, offering no further explanation for leaving before his term expires at the end of the year.

"Governor Baker and Lt. Governor Polito thank District Attorney David Capeless for his thirty-five years of dedicated public service to this Commonwealth, appreciate his commitment to protecting the citizens of Berkshire County and wish him well in his retirement," said Brendan Moss, press secretary to the governor, in a prepared release.

"Governor Baker plans to appoint District Attorney Capeless' First Assistant, Paul Caccaviello, as his successor and believes Mr. Caccaviello's years of experience and knowledge from the DA's office make him well qualified to serve in this position pending the results of the November election."

Capeless called a press conference Wednesday afternoon only saying there would be a "major announcement" made Thursday morning.

He began his career as an assistant DA in Middlesex County in 1982, and came to work in the Berkshire office in 1991. He is a city native and the son of former Pittsfield Mayor Robert Capeless.

He was appointed in 2004 to succeed Berkshire DA Gerard Downing, who died while in office. He won a special election for the seat that fall and won elections for three more four-year terms after that.

This story will be updated.

Bob Dunn can be reached at bdunn@berkshireeagle.com, at @BobDunn413 on Twitter and 413-496-6249.

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Judge John Agostini swears in Paul J. Caccaviello as Berkshire District Attorney on Thursday, during a 30-minute ceremony in Berkshire Superior Court in Pittsfield. Among those Caccaviello thanked were his wife, Karen, and daughter, Grace, "who are in front of me today, but behind me every day." Stephanie Zollshan - The Berkshire Eagle

Karen Caccaviello, wife of new Berkshire District Attorney Paul J. Caccaviello, chats with community members in the packed courtroom at Berkshire Superior Court in Pittsfield before the swearing in of her husband Thursday.

“Caccaviello takes reins as district attorney”
By Bob Dunn, The Berkshire Eagle, March 15, 2018

PITTSFIELD — For the first time in 14 years, Berkshire County has a new chief prosecutor.

Paul J. Caccaviello was sworn in Thursday to replace outgoing District Attorney David F. Capeless, who, two weeks ago, announced his intention to retire.

After the oath, administered by Judge John Agostini in a 30-minute ceremony in Berkshire Superior Court, Caccaviello thanked those in attendance and those he has worked with over his 28-year career as a prosecutor, the past 14 of which he served as first assistant district attorney under Capeless.

Caccaviello, 53, also thanked his wife, Karen, and daughter, Grace, "who are in front of me today, but behind me every day," he said.

He thanked "the now retired" Capeless for his decades of service, as well as the other district attorneys who preceded him.

Caccaviello said his predecessors all had different styles and attributes, but all shared a selfless dedication to serve the public and communities of Berkshire County.

"True justice is when we, as prosecutors, dispassionately seek the truth," he said.

"As prosecutors, we must stand tall in the face of criticism but always be willing to listen and adjust as needed, and this transition creates an opportunity to do that," he said.

Caccaviello said he was honored and humbled to be able to maintain the continuity of service for the county from Capeless' tenure to his own.

"Not just for the immediate future," he said. "But, beyond that."

The midterm appointment of Caccaviello drew fire from some, including the American Civil Liberties Union of Massachusetts, which felt that the move gives him a leg up on any potential opponents in the upcoming November elections.

Berkshire County Sheriff Thomas Bowler opened the ceremony and thanked Capeless for his service.

Bowler called Capeless "a true advocate for the victims and their families in this community."

"I, and many others, are filled with sadness that you are leaving," Bowler said.

Capeless made some brief remarks before Caccaviello was officially sworn in.

"I realize you're not here for me," Capeless said. "But please allow me a few moments, one last time, to publicly say thank you to all of those who have made the past 35 years not only successful, but meaningful and gratifying.

"I have been blessed to have a career I love," Capeless said.

Capeless, 65, was appointed as district attorney in 2004, after the death of Gerard D. Downing. He won a special election for the seat that fall and won elections for three more four-year terms after that.

Caccaviello said he once prosecuted a defendant who was convicted and sent to jail. The woman later developed medical issues and asked to be released to get treatment that wasn't otherwise available.

"The first thing that occurred to me was that allowing that to happen was the right thing to do," he said.

Years later, he saw the same woman while he was walking outside with his daughter, Grace. The woman told the girl that "her dad saves lives."

"She was in a much better place in life, and I had a small part in that," he said.

After the ceremony, Grace Caccaviello said hearing that story again made her emotional.

"I'll never forget it," she said. "Hearing that, I'm so proud of him. I'll never forget that moment."

Caccaviello said "Compassion and consequence are not mutually independent concepts. They're two sides of the same coin."

"Compassion where appropriate; consequences when called for," he said. "Under my administration, each case will continue to be looked at in a way that acknowledges and respects both."

He said his administration will continue the work begun under Capeless in areas such as community outreach and education and the fight against the opioid epidemic.

"Those efforts will, of course, continue, as they must," Caccaviello said.

Caccaviello's wife, Karen, said "(Paul) works very hard; he's been there 28 years, he's earned it."

"We're very proud of him," she said. "It's a big day."

Caccaviello is a 1982 graduate of Pittsfield High School and graduated from the Western New England School of Law in Springfield in 1989.

After graduation, he was hired as an assistant district attorney by then-District Attorney Anthony J. Ruberto Jr., and continued to serve as an assistant district attorney under Robert J. Carnes, Downing and Capeless.

In 2008, Caccaviello was named prosecutor of the year by the Massachusetts District Attorneys Association, for the prosecution of Damien Lamb, convicted of a 2005 murder in which the body was never found.

He was also recognized by the National Crime Victims' Rights Week event for his prosecution of Father Gary Mercure, a former Catholic priest convicted of sexual assaults from 20 years earlier, and served as co-counsel in the prosecution of Adam Hall, David Chalue and Caius Veiovis, convicted of a 2011 triple murder. He was recognized for those efforts by the International Outlaw Motorcycle Gang Investigators Association. Capeless was lead counsel in those cases.

"Be assured, the good work of this office will continue," Caccaviello said.

Bob Dunn can be reached at bdunn@berkshireeagle.com, at @BobDunn413 on Twitter and 413-496-6249.

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Our Opinion: “Political scheming taints race for DA”
The Berkshire Eagle, Editorial, May 20, 2018

Thanks to new reporting by Commonwealth Magazine, which obtained relevant documents under the state's Public Records Law, it has been established that there was a subplot behind the early retirement of Berkshire County District Attorney David Capeless and the subsequent appointment of his successor, Acting D.A. Paul Caccaviello. The article laid bare the collusion between Mr. Capeless and Governor Baker to give Mr. Caccaviello the advantage of incumbency going into the fall elections.

Emails obtained by Commonwealth from the district attorney's office revealed that D.A. Capeless went through the motions of filing nomination papers for his own re-election to mislead the media as to his actual intentions. In a February 14 email to Lon Povich, chief legal counsel to Governor Baker, Mr. Capeless wrote, "FYI — There have been repeated inquiries by local media about why I hadn't pulled nomination papers, so I did that today, but immediately after that filed by retirement application. Still on track, just stalling until 3/1." March 1, ultimately, was the day Mr. Capeless would publicly and simultaneously announce his retirement and the governor's appointment of Mr. Caccaviello to replace him.

At the time, The Eagle editorialized that Governor Baker, in the interests of a fair and open election, should have appointed a placeholder acting D.A. who would not run for election (Eagle, March 9). Had the governor followed this course, it would have deprived Mr. Caccaviello of incumbency, which is of considerable benefit in light of an ACLU poll released last year revealing that only 38 percent of Massachusetts voters even know that district attorneys hold elected office.

It's disappointing that the governor would play along with this scheme. A sitting governor shouldn't be attempting to influence any elections behind the scenes, and in this case it is perplexing why the Republican governor saw fit to meddle in an election that has no Republicans in the field. Mr. Cacciavello and his two opponents, Judith Knight and Andrea Harrington, are all Democrats, as is Mr. Capeless.

While Mr. Capeless' actions were not illegal, it is shameful that the county's chief law enforcement officer would consciously do an end-run around the integrity of the system he had sworn to defend, Both Ms. Harrington and Ms. Knight can now legitimately ask why, if Mr. Cacaviello is so well suited for the job, his boss felt compelled to put his thumb on the scale to ensure his election. And by attempting to deceive the press as to his actual intentions, Mr. Capeless by extension deceived the public that had elected him into office, where he served for 14 years.

The actions of the former DA and the governor did not serve Berkshirites well. They needlessly muddied the waters of what should be a free and open election with a vigorous exchange of ideas and comparison of policies between three candidates running on a level playing field. They disadvantaged Mr. Caccaviello's two opponents and did no favors for the Acting DA, who campaigns under a politically generated cloud.

Races for district attorney are rare in the Berkshires. This one should have not begun with chicanery designed to give one candidate an unfair advantage.

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Rinaldo Del Gallo, III: “Core issue for Democrats in DA race”
By Rinaldo Del Gallo, III, op-ed, The Berkshire Eagle, June 20, 2018

PITTSFIELD — As I was talking to members of the Berkshire delegation among fellow-delegates at the Massachusetts State Convention, one thing began to emerge after numerous conversations. According to Democrat after Democrat I spoke to, all said without exception that the Berkshire Country district attorney race is a battle of two progressives, Andrea Harrington and Judith Knight, versus the "incumbent," Paul Caccaviello. I put incumbent in quotes because Mr. Caccaviello is the hand-picked successor of the not-so-progressive predecessor, David Capeless. Both Caccaviello and Capeless were placed in office by Republican governors.

I have tremendous respect for all three candidates. I like Mr. Caccaviello's amiability, respect his experience and his intellect, and find that when he stops reading from a script, he is a good speaker. Yet I find myself in great doubt that he would be a progressive district attorney, as do so many of my fellow Democrats.

Apart from being Capeless' handpicked successor and appointed by a Republican governor, there has been other cause for concern. At a forum held by the Berkshire Brigades when asked about mass imprisonment, Mr. Caccaviello dismissed this as cause for legitimate concern because both Massachusetts and Berkshire County ostensibly have lower incarceration rates as compared to the rest of the country. But as Attorney Rahsaan Hall of the ACLU points out, this is like being proud that one is amongst the best of the very worst. While the U.S. has 5 percent of the world's population, we have 25 percent of the world's prisoners. The National Academy of Sciences reports the U.S. as a whole incarcerates people at rates that are 5 to 10 times higher than Western Europe and other democracies.

When the Senate came out with a criminal justice reform bill aimed at reducing the number of incarcerated people including eliminating mandatory minimums in certain cases, Mr. Capeless was one of 11 DA's that panned it in what the Boston Globe described as a "blistering rebuke." Mr. Caccaviello has done little to distance himself from that position and has characterized that solely the concern of legislatures at a recent forum, and not a legitimate subject of concern when voting for DA.

At the ACLU forum, Attorney Hall talked about the innumerable ways policy decisions are made by the DA. What cases to drop; what bail to request; what charges to bring in the first place (are you going to bring forward more serious charges which require mandatory minimums?); whether to continue with a prosecution when it was learned that there were prior Brady violations of not turning over exculpatory evidence (think Bernard Baron); what bail to request; when to use civil asset forfeiture laws to take the property of criminal suspects; criminal justice reform, and the use of diversion and restorative justice rather than giving people a record.

It is early in the race and Mr. Caccaviello has plenty of time to define himself. He has graciously offered to have coffee with me to talk about some of these issues so important to progressives. So has Attorney Judith Knight. I have already spoken to Andrea Harrington at great length and I think she would be a great DA that would implement progressive policies. But I just don't see Mr. Caccaviello as fitting that progressive mold that I see in an Andrea Harrington or a Judith Knight. I hope I am wrong. Mr. Caccaviello, how progressive are you?

Rinaldo Del Gallio, III is an occasional Eagle contributor

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Rinaldo Del Gallo, III: “From start to finish, DA race manipulations”
By Rinaldo Del Gallo, III, op-ed, The Berkshire Eagle, October 26, 2018

Pittsfield — In all but three states, you cannot run in a party primary, lose, and then appear on the ballot in the general election. Either the time to register as an independent or party candidate are simultaneous, or there are "sore-loser" laws that prevent party primary losers from appearing on the ballot as an independent. The purpose of a primary is to have the public pick who will be the party's candidate. Allowing a candidate to run in a primary, lose, and then run in the general is allowing the candidate to thumb his nose at the voters' expressed wishes. There would be voter fatigue as inter-party disputes spill into a general election. Voter turnout would diminish because voters would think a primary election did not "really count."

In the three states where "sore loser" candidates are allowed to appear on the ballot, they seldom run, and when they do, they seldom win. In perhaps the only high-profile case of such a candidate winning, incumbent Joe Lieberman won the 2006 Connecticut Senate race after getting 48.2 percent of the vote in the primary. Lieberman was allowed to actually be on the ballot, a colossal advantage that write-in candidate Paul Cacciavello will not have in the Berkshire race for district attorney.

When write-in candidates win there is usually a darn good explanation for why they were not on the ballot, such as state Senate President Stan Rosenberg's unexpected last-second resignation opening a seat. Being a "sore loser" candidate is the polar opposite of a "good explanation."

Those who still have hopes for Mr. Cacciavello point to the narrow margin of victory, but this is a misdiagnosis of the votes. Cacciavello received just over a third of the vote, a horrible number for an "incumbent," and its description as a "near miss" by Cacciavello supporters is injudicious. Rather, the two-thirds of the vote the two progressive women candidates took together is a repudiation of the Cacciavello/Capeless administration. It is a textbook case of vote-splitting of like-minded progressive constituents and a case for ranked choice voting.

While Mr. Cacciavello has an amiable disposition, he never characterized himself as a progressive in an increasingly progressive district. Cacciavello's predecessor who hand-picked him, David Capeless, was infamous for vigorously prosecuting crimes with little emphasis on treatment and interdiction. Cacciavello has offered nothing but panegyrics for his predecessor, who could make no distinction between the sinner and the criminal. Capeless' "broken windows theory" approach to crime has not worked. As the Eagle reported, "For the second year in a row, North Adams and Pittsfield rank among the cities and the towns with the highest violent crime rate in Massachusetts, according to federal data."

Instead of serving out his term in office, Capeless decided to retire ten months early so that he could hand-pick his successor who would have the appearance of being an "incumbent." If the desire to retire early was legitimate, a person could have been selected that would promise not to run at the end of the term, as was case when Paul Kirk was named to replace the late Senator Edward Kennedy.

Commonwealth Magazine reported in a story, "How Capeless plotted succession plan: DA pulled nomination papers to throw off reporters,"the details of Capeless' plan with Gov. Baker to make Caccaviello the incumbent.

"David Capeless worked closely with Gov. Charlie Baker to choreograph the handoff of his job as Berkshire County district attorney to a top aide, going so far as to pull nomination papers for himself to throw off reporters." They wrote: On Feb. 14, Capeless emailed the governor's chief legal counsel, Lon Povich, telling him, 'FYI — There have been repeated inquiries by local media about why I hadn't pulled nomination papers, so I did that today, but immediately after that, filed my resignation application. Still on track, just stalling until 3/1'"

To top it off, instead of having a quite backroom ceremony, the swearing-in of Mr. Cacciavello was a huge, pretentious ceremony resembling a coronation, replete with the speeches and trappings of an inauguration with a room full of dignitaries, befitting someone that just won an election. At subsequent events, law enforcement showed-up in uniform, which is improper.

Mr. Cacciavello is smart and likeable. But at what point does one conclude that that there is too much manipulation and not enough due respect for the process?

Rinaldo Del Gallo, III is a local attorney and a frequent contributor.

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