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Our Opinion: After judge flags poor prosecutorial conduct, Berkshire DA owes Adams couple an apology

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District Attorney Andrea Harrington speaks April 8, 2021, outside of Berkshire Superior Court after the arraignment of Matthew Tucker and Cassandra Barlow-Tucker. A Berkshire Superior Court judge dismissed the manslaughter case brought against the Adams foster parents in connection with the death of an infant in their care.

Andrea Harrington owes Cassandra Barlow-Tucker and Matthew Tucker a sincere apology. If the past is prologue for the future, the Tuckers should not expect anything from the Berkshire District Attorney.

In October 2019, the Massachusetts Department of Children and Families placed Kristoff Zenopolous as a foster child in the Tucker home. He was 6 months old, having been born with cocaine and methadone in his system. Sadly, the infant died in his sleep Feb. 18, 2020. A year later, the Tuckers were charged with involuntary manslaughter, allegedly responsible for the death. After the Tuckers’ arraignment in Berkshire Superior Court, District Attorney Harrington held a press conference claiming the Tuckers “failed to provide basic medical care,” which caused his death. She proclaimed that her office was “seeking justice” for Kristoff.

While Harrington stood before a bank of microphones, Matthew Tucker’s attorney called charging the Tuckers with manslaughter “appalling scapegoating” and hoped that when they are vindicated “there will be an apology from the District Attorney’s Office” for what the family had to go through.

Two weeks ago, the Superior Court dismissed the indictments against the Tuckers, finding that the District Attorney’s Office failed to present sufficient evidence to show the grand jury there was probable cause that either of them committed a crime. The court also said that the District Attorney’s office improperly presented evidence that “invited the grand jury to hand up indictments” not because of anything they did but inferred the Tuckers were “despicably neglectful” and greedy people. Judge John Agostini wrote a thoughtful, well-reasoned 17-page decision that concluded with the stinging comment that the district attorney’s presentation was “not the standard of conduct the court expects from the Commonwealth in grand jury proceedings.”

Unlike a trial, a judge is not present during grand jury proceedings, and the person being charged — the target — is only there if, and when, he or she chooses to testify. Grand jury proceedings are managed by the district attorney, although grand jurors can pose questions to witnesses and can ask that named individuals be called to testify. The prosecution can present whatever evidence and ask any questions it wishes, and then explains to the grand jury what constitutes a crime. The prosecutor asks the grand jury to find from the evidence presented there is probable cause that a particular person has committed a specific crime or crimes. This process gives prosecutors immense discretion and control over grand jury proceedings.

Probable cause is a low standard of proof. It is said to be enough evidence to warrant a prudent person to believe the defendant committed the offense charged. As such, it is rare that motions to dismiss indictments are granted as they were in this case. Once someone is indicted, the prosecutor must prove the defendant’s guilt to a trial jury beyond a reasonable doubt — a very high standard.

Judge Agostini’s decision explains that the district attorney had to show the grand jury that Kristoff’s death was a result of the Tuckers’ wanton or reckless conduct. This means that the Tuckers should have known that the home treatment they were giving Kristoff was insufficient and he was in urgent need of a doctor’s care.

The medical examiner testified that Kristoff died from complications of strep throat and pneumonia, but she was unable to say whether Kristoff’s symptoms would have been apparent to a parent. She added that those symptoms tended to “wax and wane,” making it more difficult for any parent to understand their gravity. A doctor who treated Kristoff for respiratory problems two months before he died told the grand jury that Kristoff’s condition required him to have been taken to the emergency room the day before he died, but that doctor did not say that the Tuckers knew or should have known this.

The medical evidence surrounding Kristoff’s death may not have been enough for the grand jury to return the indictments being sought, because the prosecutor recalled state police Sgt. Ryan Dickinson to testify a second time. This is when the improper, prejudicial statements were made. This testimony included information about how much the Tuckers were being paid by DCF to care for Kristoff, an allegation that they wrongfully accepted payments after Kristoff’s death, and an explanation that the Tuckers continue to receive payments from DCF for two other children they fostered who were eventually adopted, despite the fact that this is both legal and common. The prosecutor then presented the grand jury with 70 pages of Ms. Tucker’s blog that discussed the trials and tribulations of foster parenting written years before the Tuckers were asked to foster Kristoff.

Judge Agostini found that the blog posts served no purpose except to portray the Tuckers to the grand jury in a very negative light. A hallmark of our justice system is that we punish people for what they have done, not who they are. It appears that District Attorney Harrington’s office was so eager to obtain indictments against the Tuckers that they abused the power and prerogatives given to prosecutors in grand jury proceedings.

Overreaching to obtain indictments is a dangerous abuse of discretion, but doing so in a case that tries to hold a foster parent criminally responsible for a child’s death is truly reprehensible. Decency requires District Attorney Harrington to offer the Tuckers a sincere apology, and she also owes answers to the entire community as to her priorities. News of the Tuckers’ treatment could produce a chilling effect for DCF’s ongoing attempts to recruit and retain much-needed foster parents.

On at least two previous occasions, this page has urged District Attorney Harrington to focus on her job. She seems more disposed to make pronouncements as a putative local minister of justice than to do the necessary hard work of being the county’s chief prosecutor.

She could begin by trying to square things with the Tuckers with a sincere apology.

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