Citing campaign pledge, Berkshire DA moves to prevent flawed convictions

Berkshire County District Attorney Andrea Harrington has outlined a policy designed to ensure that prosecutors share potentially exculpatory evidence with defendants. "We have to hold ourselves to high standards to ensure that everybody gets a fair trial, which they're constitutionally entitled to," she said.

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PITTSFIELD — When she ran to become Berkshire County's top prosecutor, Andrea Harrington cast herself as a reformer seeking to build trust in the justice system.

A policy outlined Tuesday aims to advance that pledge. Harrington is moving to strengthen compliance with a 1963 Supreme Court case that said prosecutors must share information that could aid defendants.

Though the precedent in Brady v. Maryland is nearly six decades old, Harrington, now in her 18th month as Berkshire district attorney, saw it as unfinished business in Berkshire County.

The legal system, she said Tuesday, is designed to prevent false convictions by allowing defense attorneys access to exculpatory material. But she says the office she took over did not have a written policy detailing how police and prosecutors would live up to obligations outlined in the Brady case and in state law.

"That is the cornerstone of the trial system," she said of pretrial disclosures. "The Commonwealth has tremendous power in the system because we have investigators, we have police, we have the crime lab."

"We're the gatekeepers for the information. We have to hold ourselves to high standards to ensure that everybody gets a fair trial, which they're constitutionally entitled to," Harrington said.

As part of the policy, Harrington's office is asking local police departments to comb through a decade of criminal cases for instances in which facts favorable to the defense may not have been properly disclosed.

Harrington said she does not expect that review to turn up past failures to provide exculpatory evidence, but acknowledged that it could. She said she was not aware of any case that could lead to a motion for a new trial.

"It's not the role of the prosecutors to be the judge and the jury and the prosecutor," she said.

Police assist

The new policy was shaped in consultation with area police chiefs, the Massachusetts State Police and other district attorneys, including Northwestern District Attorney David Sullivan, who handles Hampshire and Franklin counties. It comes as a working group made up of representatives of district attorneys' offices around the state continues to explore ways to strengthen adherence with Brady case principles.

Richard Tarsa, the recently retired chief of the Adams Police Department, says the new policy fills a gap. "Even though Brady has been in effect for many years, there was no formal policy in place," he said in a statement. "This proposal holds true to the conditions set forth by Brady and allows the integrity of the evidentiary aspects of the trial process to be openly maintained."

The new policy spells out how prosecutors will obtain "discoverable evidence" from police departments. The new rules call for police officers to report cases in which potential prosecution witnesses have been found to be untrustworthy, including through internal affairs reviews.

The policy calls for departments to report when officers involved in criminal cases have been found to be dishonest and biased. It asks departments to flag witnesses linked to racial profiling and harassment, or for whom criminal charges are pending.

Harrington said a special team within the office will review Brady disclosure materials and decide when to notify defense attorneys. She said the new practice promotes openness.

"We follow the law and err on the side of disclosure. In a lot of cases, a prosecutor wouldn't know exculpatory evidence if it bit them on the hand," she said. "As a prosecutor, you don't know what the defense strategy is. It's not up to us to dictate what the defense is going to be or to control the flow of information based on what we think it is."

Harrington acknowledged the practice required in Brady makes it harder for prosecutors to win cases. "But it's still the law. Those are the rules and we have to follow that."

"There's been a big shift in what our community expects from us," Harrington said of the prosecutor's role. "Prosecutors and police [in the past] were just judged by how many convictions they got. That has changed."

Early in her legal career, Harrington worked on Death Row appeals, hunting for potentially exculpatory information not given to the defense.

"That's part of my background and I certainly bring that experience when I consider this issue," she said. "I became a defense attorney in part because I really thought it was important to prevent the kinds of injustices that we've seen from false convictions, from prosecutors not turning over their Brady material."

Harrington said that since taking office in January 2019, she has worked to build relationships with county police departments. That needed to happen before introducing her office's Brady policy, she said.

"When I was sworn in, I recognized that I was an outsider for law enforcement and they were understandably apprehensive about working with me and what I would do," she said. "We're in a good place to work together on these kinds of issues. Getting cooperation from our local law enforcement is really critical to making this work. We can't do this without their support."

Larry Parnass can be reached at lparnass@berkshireeagle.com, at @larryparnass on Twitter and 413-588-8341.


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