Berkshire DA handling of sexual assault evidence under fire

by Eoin Higgins, special to the Greylock Glass

CONTENT ADVISORY: The materials contained in the ancillary documents contain subject matter describing sexually traumatic experiences that some readers may find disturbing

NOTE: This story has new developments. View the updates here.

The Berkshire County District Attorney race is seeing the convergence of #MeToo, the midterms, and criminal justice reform become a major campaign issue in the final days of the campaign as the DA’s handling of sexual assault at a prestigious local college is raising questions in the community.

One case from 2016, where the DA’s handling of evidence likely violated state regulations, is becoming a flashpoint after DA Paul Caccaviello, who is running a write-in campaign, issued a statement about the office’s handling of sexual assault at Williams College.

Policies in the DA’s office around assault and rape, particularly at Williams, became an issue in the DA primary campaign over the summer when allegations surfaced of prosecutorial dismissiveness for rape allegations at Williams. The school reported the existence of allegation of over 40 rapes and assaults in recent years to police, but only one case was prosecuted by the DA’s office. Andrea Harrington, the Democratic nominee,  and her allies see that as part of a history of looking the other way by the office, particularly at concerns incidents at the college.

Harrington announced in August that, if elected, she would “review all un-indicted complaints of sexual assault received by the District Attorney’s office in the last 15 years, including processing all untested rape kits.” Such a proposal would require a lot of work and would likely include a review of the conduct of the office with respect to a local college and law enforcement handling of evidence.

“I will make sure that we do a complete and thorough review of all rape and sexual assault cases which are within the 15 year statute of limitations,” Harrington said in a statement to The Greylock Glass.

Williams has been a focal point in the Berkshires on sexual assault for years. In 2014, a student named Lexie Brackenridge went public with what happened after her alleged 2012 rape at the school. Brackenridge recounted how, after she reported that she was assaulted by a member of the Williams men’s hockey team, school administrators pressured her not to go to the police and to think of her alleged rapist’s future. Brackenridge, whose story was reported on by media both locally and nationally, did not reply to requests for comment for this article.

Months after Brackenridge’s accusations became public, Williams College Director of Sexual Assault Prevention and Response Meg Bossong and former DA David Capeless sat down with reporter Andy McKeever of online publication iBerkshires to explain the different processes of justice used by the college and the criminal system. During the interview, Capeless appeared to question the definition of sexual assault.

“If by what they have done, are they inclined to do it again?” Capeless asked rhetorically. “Or was it an aberrant moment that’s highly regretted? Sexual assault encompasses an enormous range of possibilities.”

Critics argue that attitude hasn’t changed. For his part, Caccaviello pushed back on suggestions that the office hadn’t done enough during his three decades as a member of the team.

Caccaviello’s statement from October 24 is aimed at Springfield attorney John Pucci, a supporter of Harrington’s who does not live in the Berkshires, but who wrote a letter condemning the way the DA’s office handled allegations at Williams in August. Caccaviello claims the unwillingness of Williams to share information with his office has hindered their ability to pursue charges.

Writing that “two-thirds of the incidents reported to the police [by the college] failed to identify either the victim or the alleged perpetrator of the crime,” Caccaviello claimed that “the majority of the information provided by Williams College to the Williamstown Police Department did not contain sufficient data to permit a thorough investigation by law enforcement.”

Caccaviello did not reply to requests for comment before this story was published. It will be updated if and when comment is received.

However, Pucci has reason to believe the DA can’t claim that a lack of information is the determining factor in not prosecuting cases. The Springfield lawyer represented a client who claims that she was assaulted at Williams — and not only did the DA decline to press charges, the office signed off on what may be determined to be improper disposal of physical evidence in the case in direct violation of 2016 state regulations that require such evidence be held for 15 years.

Capeless, in a statement to WAMC, rejected that claim and cast doubt on Pucci’s credibility. 

“Mr. Pucci is a disgruntled attorney, who represented somebody who unfortunately got involved in a drunken incident at Williams College, an alumna,” Capeless told WAMC.

“We investigated it thoroughly along with the Williamstown Police Department and found that there was not a basis for going forward with any case,” Capeless added. “That’s his problem.”

Pucci’s client, referred to in this article as Jane Doe, says she was raped on June 10, 2016, at her 25th reunion at Williams. Her name is being withheld by the Glass despite the fact that the DA’s office revealed it to this reporter, unprompted, in a public records response.

The records, attached here, do not contain the name of the victim or her alleged assailant. They do contain disturbing passages describing the alleged assault.

Doe and her husband filed a report with Sgt. Scott McGowan of the Williamstown Police Department the next day and submitted to McGowan two pieces of physical evidence: a rape kit administered by a Sexual Assault Nurse Examiner (SANE) at Mt. Sinai Hospital and Doe’s clothing from the night for testing.

Documents obtained by the Greylock Glass indicate that the rape kit was tested, but not that DNA from alleged attacker was collected.

Two months later, on August 30, Assistant District Attorney Gregory Barry from the Berkshire County District Attorney’s office told Pucci that the office had declined to pursue charges after a review of the facts of the incident. In December 2016, Doe and her husband had Pucci request from then-First Assistant DA Caccaviello that Caccaviello ensure the physical evidence from the case be held for 24 months as the victims attempted to pursue other legal options.

Pucci claims that he never received a response from Caccaviello, a frustrating response from an office that regularly touts its advocacy for victims.

“They have the obligation under the law to retain physical evidence,” Pucci said in an interview with The Greylock Glass.

Pucci next took his complaint to Capeless. In March 2017, Pucci wrote a letter to the then-DA in which Pucci said that the police department had informed him that they would no longer retain the evidence and that Pucci or his clients should come to the station to pick the items up.

According to documents reviewed by the Glass, Capeless never replied to Pucci. Meanwhile, Williamstown Chief of Police Kyle Johnson said in an email to ADA Barry that the clothing was no longer evidence but now “found property.” Barry agreed.

A law passed on October 19, 2016, may make what the department and the DA’s office did with the evidence a violation of regulations. Chapter 295 of the Acts of 2016, signed into law by Governor Charlie Baker, changed Mass. General Law Chapter 41, Section 97B, to forbid law enforcement from disposing of physical evidence related to accusations of rape for the 15 years stipulated by the statute of limitations for the crime, “whether or not that crime has been charged.”

“This act shall apply to all forensic evidence collected and retained for its potential evidentiary value in the investigation of a rape or sexual assault,” reads the law’s final passage, “including any such forensic evidence collected and retained before the effective date [January 17, 2017] of this act.”

That would include the evidence from Doe’s assault. There doesn’t seem to be any wiggle room on that point, either — Pucci pointed out the law doesn’t allow discharging the evidence to a third party outside of law enforcement.

“There’s no carve out in the law there,” said Pucci.

“I am kind of surprised a DA would sign off on this,” said Massachusetts School of Law Dean Michael L. Coyne. “It doesn’t make sense why you wouldn’t preserve it — investigations don’t always conclude with charges you can take to trial.”

The necessity of keeping evidence in these cases is clear, said Daniel Medwed, a law professor from Northeastern University. Medwed explained that holding physical evidence allows, in a general sense, for possibly matching DNA obtained in later cases with the past case as databases continue to add profiles.

“Retention can help to track serial rapists or other sexual predators and that naturally has some law enforcement benefits,” said Medwed.

The DA’s decision may have further effects down the road. Massachusetts School of Law’s Coyne pointed out that the case itself might change in the future, giving the victims another reason to want the evidence to be preserved.

“I think the statute’s clear on this,” said Coyne. “What if other witnesses come forward, or if witnesses recant, or there is other physical evidence that changes the analysis?”

Eoin Higgins is a writer and historian from western Massachusetts.