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Law and Order: A conversation with D.A. David F. Capeless

The one case that stands out for him is the one that all America was watching: The 1992 killings at Simon’s Rock College of Bard by Wayne Lo, one of the first school shootings.

Editor’s Note: A version of this article originally appeared in the Monument Mountain Maroon-Tribune for which the author is a student reporter.

There is a big disparity between courtroom dramas serialized on television and the actual work of an actual district attorney. To understand what the work of a real district attorney is like I sat down with Berkshire County District Attorney David F. Capeless.

His office is located at Park Square in Pittsfield, on the second floor of a former bank building fitted with fixtures of mahogany, with glossy finished wood throughout. When I arrived, most of the lawyers had gone home for the day. Not the district attorney.

He greeted me with a firm handshake. He’s about my height, approximately 5 feet 8 inches. He was wearing a plain button-up shirt accompanied with a red tie. Above all else, the tired look on his face told me he’d had a long day.

“I never saw myself doing any of this,” he begins. “My father was a lawyer. I had great respect and admiration and love for him. But I guess because he was a lawyer I kind of wanted to be myself.”

Capeless was in and out of jobs after his schooling, never sticking to one thing, he admitted.

“After college I didn’t really know what I was going to do,” he said. “I worked hanging wallpaper for a design firm for a couple of years. I went to architectural school at night. While I was doing that I worked for a planning firm. I didn’t know what to do.”

Finally, it was his father who urged him to get into law, advising him to take the Law Boards and perhaps go to law school.

“I took the Law Boards, I did well. I went to Boston College,” he explains. “I wanted to be a trial lawyer. I thought I would work in a law firm. I got advised to work as an Assistant District Attorney and thought I would do that for a couple of years and then work in a private practice. Two years stretched into four, which stretched into five and then eight. Jerry Downing asked me to come back here and be first assistant.” (Gerard Downing was Berkshire County District Attorney whom Capeless worked with for 13 years until Downing’s unexpected death in 2003.)

“I felt an obligation to everyone in the office to carry on,” Capeless said. “Obviously, I had to immediately. That’s a long way of answering the question – I never thought I would be here.”

In 1997, Capeless was the prosecutor in the trial of Adam Rosier, charged with the murder of Kristal Hopkins in Pittsfield State Forest. The conviction, and its appeal, led to the landmark decision by the Massachusetts Supreme Court to recognize DNA testing as permissible evidence, the first case in the country to use any form of DNA testing.

“We understood what we were getting into, that this was not normally used and accepted but we decided that, in fact, this had a very strong basis,” said Capeless, when discussing making the decision to go forward with this evidence.

“What I was very proud of was that the people who did the testing and came up to testify used my examination of them as an example for other prosecutors around the country. This was because it was simple and straightforward.”

In 2005, Capeless came under fire when his office decided to prosecute 18 young people arrested for drug dealing as the result of an undercover sting operation in the Taconic Parking lot in Great Barrington.

“I thought the people who criticized me did so unfairly,” says Capeless. “I said at the time and I’ve said it since then, they never complained about any other people being prosecuted under the school zone law before then and they haven’t complained about anyone being prosecuted under it since then. Why only then and why only those guys?

“The situation was that [Great Barrington] had become a haven for young people, teenagers in particular, to go and buy drugs. One thing that was never reported fairly in the local media was that officers at the trials testified that over the time that they conducted the investigation, they estimated as many as 100 different teenagers between the ages of 13 and 19 went into that parking lot and bought drugs and left. This wasn’t just people sharing drugs with their friends. They were supplying drugs to teenagers in Great Barrington.”

Capeless recalled that his office at that point had prosecuted several different cases involving young people and drug dealing.

“It would have been unfair for us to treat them differently in any other way,” he said. And he noted that everyone was given the opportunity to cut a deal that would’ve lead to a less severe sentencing.

“Most of them did cooperate. The few who chose to go to trial, that was their decision” Capeless explains. “Those cases were ordinary cases which people tried to make a big deal out of.”

But if there is one case that stands out for him, it is the one he prosecuted in 1992, the one all America was watching: the killings at Simon’s Rock College by Wayne Lo, one of the first school shootings.

“I remember being called at night and driving down to the campus, driving on the campus. It was an incredibly cold night,” he said.

Thirteen months later, Capeless and Downing were preparing for the trial.

“This was going to be the big case of our careers” Capeless said. But suddenly, another case was landed in his lap.

“A state trooper came into the office. He said, ‘Look I gotta tell you we got a call in here today. A girl was almost kidnapped.’ “I said ‘where?’ “The trooper walked over to the window and pointed down and said, ‘Right there.’ ”

It was this single attempted child abduction that brought down the serial child murderer Lewis Lent.

“Over the course of the weekend we’re supposed to be preparing [for the Wayne Lo case]. We’re now occupied by this guy trying to kidnap a girl.

“They found him Friday night,” Capeless recalled. “Saturday night the girl picks him out of a lineup. Sunday night he confesses not just to the kidnapping but to the kidnapping and killing of Jimmy Bernardo.”

From there, Capeless tells me that Lent confessed to the killings of other children as well as a plan to kidnap more.

“It’s now getting to be late Sunday night and we’re supposed to start the Lo trial in the morning. This big trial of our careers, the biggest thing ever and this happens,” Capeless said.

Meanwhile, twelve hours before the trial was to begin, Downing had decided that Capeless would deliver the opening statement.

“One of the most important and difficult things to do in any case is get up and give the opening statement. I’ve always felt that’s when you win the jury,” Capeless said. And now he was going to be delivering the opening statement.

“It was a huge thing in my career because it was the confluence of having the Wayne Lo case and the Lewis Lent case all coming together.”

Law and order is never black and white and finding the truth is not easy. But it is rewarding, Capeless insisted.

“I have the greatest job you could have,” he said. “It’s a job that gives a great deal of satisfaction. It’s an interesting job and it can be exciting at times. It demands an awful lot of you; you put a lot work into it. You don’t get paid much to do it but you get a great deal of satisfaction from doing it.”

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