Pubdate: Fri, 22 Jul 2005
Source: Berkshire Eagle, The (Pittsfield, MA)
Contact:  http://www.berkshireeagle.com/
Address: PO Box 1171, Pittsfield, MA 01202
Fax: (413) 499-3419
Copyright: 2005 New England Newspapers, Inc
Bookmark: http://www.mapinc.org/youth.htm (Youth)
Author: Rich  Azzopardi, Berkshire Eagle Staff

MISTRIAL IN SAWIN CASE

Jury Deadlocks On School-Zone Charge

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"They conducted themselves professionally inside the courtroom and 
outside the courtroom, despite the circumstances and despite, 
unfortunately, the boorish  behavior of some people."
- ---
MAP posted-by: Beth