Tuesday August 21, 2012

PITTSFIELD -- Two law professors say it is "not unheard of" to re-indict and re-arraign criminal defendants after their attorneys file to dismiss the charges against them as was the case recently in the triple slaying in the Berkshires.

In late June, defense attorneys for David Chalue, Adam Lee Hall and Caius Veiovis filed motions to dismiss the cases and planned to argue the matter in court last week. But that hearing was canceled because Berkshire District Attorney David F. Capeless' office had already resubmitted the cases to the same grand jury that indicted the men in October with similar results.

"It's not unheard of for a prosecutor to present a case to a grand jury a second time to cure a defect in the process," said Kevin Connelly, a law lecturer at the University of Massachusetts at Dartmouth, "although you would want to do it right the first time."

The DA's legal maneuvers earlier this month in the high-profile triple murder case surprised the defense attorneys for the three men. And since grand jury proceedings are private and much of the records in the case are sealed, little public information is known about exactly why there were re-indictments. If there was a defect in the indictment process the first time isn't clear. The DA's spokesman said the cases were brought back to a grand jury because the investigation is ongoing.


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Arthur Leavens, a law professor at Western New Eng land University in Spring field, also said a district attorney could look at a motion to dismiss and decide to resubmit the case to a grand jury to fix any problems the defense motion may have revealed.

Both law professors aren't following this particular case, but spoke to The Eagle in general terms about what a re-indictment might entail in the legal realm.

In the second time around, the indictment results against Hall, Chalue and Veiovis were largely unchanged. Only Hall received an additional count of witness intimidation for allegedly threatening someone while incarcerated following his re-indictment.

Hall, 35, of Peru; Chalue, 45, of North Adams; and Veiovis, 32, of Pittsfield, are accused of kidnapping and killing Pitts field residents David Glasser, Edward Frampton and Robert Chadwell last August. Each defendant has pleaded not guilty to three counts of murder, kidnapping and witness intimidation.

Connelly said there's nothing to stop a DA from bringing a case back to the same grand jury. But he said he found it strange that in this case the same grand jury was still in session nearly a year after it was first convened. In Massachusetts, grand juries typically sit for just three months at a time.

Special grand juries can be called to serve for longer periods if they're sitting on one special investigation, but that requires a judge's approval, according to Connelly. The Berkshire District Attorney's Office did not return a phone call as to whether this grand jury is indeed serving in the special capacity.

The lawyers for Hall, Chalue and Veiovis had filed a so-called McCarthy motion to dismiss the charges. A McCarthy motion is based on whether a grand jury has heard any evidence showing that a defendant had actually committed the crime.

The motion is named after a 1982 state Supreme Judicial Court decision that dismissed an assault to rape charge against Eugene McCarthy Jr. after it determined a grand jury didn't hear "sufficient evidence to establish the identity of the accused and probable cause to arrest him."

Currently, the McCarthy motions filed in the Berkshire County cases are unavailable to the public.

According to Leavens, even if a judge ruled in favor of a McCarthy motion to dismiss, it wouldn't necessarily end the case since a DA could resubmit the case to a grand jury after the dismissal. The only issue, Leavens said, would be that the defendants, if they weren't being held on other charges, would have to be released from custody until the new indictments came through.

The three victims in the case were last seen Aug. 28, 2011, and their remains were discovered 12 days later buried in a trench in Becket.

Glasser was killed to keep him from testifying in a court case against Hall, a reputed local Hells Angel, while the other men were killed so there would be no witnesses, police and prosecutors allege.

Hall, Chalue and Veiovis remain behind bars without bail.

A fourth defendant, 63-year-old David Casey of Canaan, N.Y., has been charged as an accessory for allegedly helping to bury the bodies. He remains behind bars on $1 million bail.

No trial dates have been set, but a hearing has been scheduled for Sept. 20.

To reach Andrew Amelinckx:
aamelinckx@berkshireeagle.com,
or (413) 496-6249.
On Twitter: @BE_TheAmelinckx