PITTSFIELD — After months of legal wrangling, a judge ruled the criminal case against a Dalton police officer can proceed.
Judge Thomas Estes ruled earlier this month that the case against James Scace, 48, cannot be diverted to treatment in lieu of prosecution simply because he has met certain criteria in the state's Valor Act.
Estes ruled there is nothing specific in the Valor Act authorizing dismissal of charges once those qualifying criteria have been met and the court does not have the authority to dismiss charges over the state's objection. The court also does not have the authority to refuse to arraign Scace, Estes said.
The Valor Act, which became effective May 31, 2012, allows, "pretrial court diversion for qualifying veterans, active service members or persons with military history who are defendants in criminal cases."
Scace's attorney, Mark T. Brennan argued that because Scace is a military veteran and has been evaluated by the Department of Veterans Affairs and diagnosed with post-traumatic stress disorder, he qualifies for such a diversion without starting the trial process with an arraignment.
Brennan said Scace has also completed or is participating in several therapies and treatments recommended from a clinical social worker who was referred to the case by the Central Berkshire District Court.
Brennan argued if a diversionary program is deemed appropriate in favor of prosecution, that determination can be made prior to arraignment.
"Arraigning Mr. Scace at this point would not be in his best interest, or in the best interests of justice. The Valor Act affords veterans the opportunity to engage in treatment as an alternative to prosecution. Mr. Scace was deemed eligible, a rehabilitation plan was implemented and Mr. Scace has worked and is continuing to work diligently through his rehabilitation plan," Brennan argued in his motion.
Assistant Berkshire District Attorney Dana Parsons said in her motion supporting arraignment that Scace's case needs to move forward, "even if the defendant is seeking diversion pursuant to the Valor Act."
According to the act, Once a Probation Department has confirmed a defendant is a veteran, an arraignment can be continued for 14 days to "seek an assessment by a state or federal agency with suitable knowledge and experience of veterans' affairs."
In her motion, Parsons cited a memo from Chief Justice Lynda Connolly from Dec. 2012 referencing the 14-day continuance.
"The clerk should, at the court's discretion, schedule the case for a future pretrial hearing date," Connolly wrote.
"This implied that an arraignment occurred as all pretrial hearings occur subsequent to arraignment," Parsons said.
In her memo, Connolly also said, "Although the court has the inherent power to place a qualified defendant in a pretrial diversion program, the court lacks the authority to dismiss the case over prosecution objection."
Parsons argued the specificity in Connolly's language gave weight to the prosecution's argument.
"The discussion of dismissing a case again implies that a live case exists," Parsons said. "For a case to be dismissed there must be an arraignment. Without any arraignment, there would be nothing to dismiss."
Parsons also noted, Connolly used the term "pretrial" diversion when discussing the Valor Act, not "pre-arraignment."
Parsons said language throughout Connolly's memo indicates the intent is to arraign defendants, even if they are seeking a diversionary program.
"It is abundantly clear that Justice Connolly is directing all District Court Judges to arraign defendants in this posture," Parsons argued.
Massachusetts General Laws also note that the defendant must "knowingly execute a waiver of his right to a speedy trial," if they seek diversion under the Valor Act.
"Speedy trial computation begins with arraignment," Parsons said. "It would be nonsensical for the Court to require a defendant to waive his or her speedy trial right if no speedy trial issues could ever arise due to the lack of arraignment."
Reached by telephone Monday, Brennan said, "Due to the extreme conditions under which Mr. Scace served in the military, I would hope the DA's office would consider a fair and equitable Valor Act disposition."
In a December, 2015 interview, Brennan said Scace served with the Marines in Fallujah, Iraq, and was in charge of the motor vehicle maintenance fleet.
That duty involved examining battle-damaged equipment, some of which still contained remnants of combat-related carnage.
"(Scace) saw a lot of horrible stuff," Brennan said.
Scace's employment status with the Dalton Police Department remained unclear Monday.
Scace was placed on administrative leave last October in connection with the investigation into alleged assaults against a group of teenagers.
In that case, currently pending in Berkshire Superior Court, Scace is accused of assaulting the teens while off-duty last fall and has pleaded not guilty to misdemeanor assault and assault and battery charges and a felony count of assault and battery with a dangerous weapon.
Dalton Police Chief Jeffrey Coe deferred questions about Scace's employment to Dalton's Town Counsel, Timothy Zessin.
Voice and email messages left for Zessin were not returned by press time.
Dalton Town Manager Kenneth E. Walto was out of the office Monday and unavailable for comment.
At his new arraignment last week, Scace pleaded not guilty to two counts of assault and battery with a dangerous weapon and one count each of strangulation, witness intimidation and assault and battery on a family or household member.
He was released on his own recognizance by Estes with the conditions he is not to possess any firearms and have no contact with the alleged victim. He is due back in court on Sept. 22 for a pretrial hearing.
In that case, Scace is accused of throwing a woman to the ground, kicking her in the ribs, smashing her cellphone to prevent her from calling for help, putting a pistol to her head and wrapping his hands around her neck and throttling her hard enough to cause "significant" bruising, according to investigators.
That incident is alleged to have occurred in July, 2015.
Those allegations came to light during an investigation into the alleged teen assaults.
A final pretrial conference in that case has been set for October 12.
Contact Bob Dunn at 413-496-6249