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Our Opinion

Our Opinion: Appeal raises questions Berkshire DA should answer sooner rather than later

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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. Harrington's office filed an appeal of that decision.

“Circumstantial and not particularly strong.” “Hopelessly slanted.”

That was how a judge characterized the involuntary manslaughter case brought by Berkshire District Attorney Andrea Harrington against an Adams couple after an infant in their care died from an infection. As a result, Superior Court Judge John Agostini dismissed the indictments against foster parents Cassandra Barlow-Tucker and Matthew Tucker, finding that the DA failed to present sufficient evidence to show a grand jury there was probable cause that either of them committed a crime. Granting a motion to dismiss indictments is uncommon, but what’s rare is the stinging comment aimed at the DA in the ruling: “This is not the standard of conduct the court expects from the Commonwealth in grand jury proceedings.”

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

We echoed that sentiment after the ruling was issued, and urged District Attorney Harrington to apologize to the Tuckers. In his 17-page ruling, Judge Agostini flagged the inappropriate handling of their case, which District Attorney Harrington directly prosecuted. The charges carried the threat of 20 years in prison and a chilling downstream effect on current and would-be foster parents, not to mention the ridicule people naturally attach to those charged with harming children.

In lieu of apologizing, however, District Attorney Harrington is appealing. Last week, the district attorney formally moved to contest Judge Agostini’s dismissal of the Tuckers’ indictments. On what grounds, we don’t know: The pro forma notice does not specify the argument for a higher court’s review. Legally, the DA’s Office doesn’t have to articulate grounds for its appeal at this juncture. Ethically, however, District Attorney Harrington owes the public some straightforward answers on why she believes a case that prompted such an extraordinarily strong judicial rebuke is worth prolonging in its current state.

Judge Agostini concluded that the district attorney failed in two ways. First, the prosecution did not present sufficient evidence to establish probable cause that the Tuckers had committed a crime in this case. Second, it presented irrelevant and highly prejudicial evidence to the grand jury aimed at assassinating the Tuckers’ characters.

Berkshire County deserves to know on what grounds District Attorney Harrington disputes Judge Agostini’s conclusions that led to the case’s dismissal. What evidence ostensibly overlooked or minimized by the judge shows criminal conduct by the defendants? Specifically, how does evidence of Ms. Barlow-Tucker’s 2- to 3-year-old blog posts or receipt of DCF payments show criminal conduct in 2021?

We fear answers will not be forthcoming any time soon. On other occasions, the DA has adamantly refused to discuss the details of ongoing cases. She cannot use this excuse to avoid addressing these questions, because these answers will have to be included in public court filings necessary to her appeal. We are profoundly concerned that these filings might be made after the upcoming election.

Judge Agostini’s order left open the opportunity for District Attorney Harrington to seek new indictments if her office is able to present more or better evidence of the Tuckers’ guilt to another grand jury. This would likely be a swifter process, and it would allow the prosecution to eliminate or carefully tailor the evidence deemed improper and prejudicial in Judge Agostini’s ruling. Instead, the DA’s Office waited until the last possible day to appeal Judge Agostini’s ruling. Given the simplicity of the appeal notice, this timing raises the inference that the district attorney may be trying to shunt this matter aside until after this year’s DA election.

While Judge Agostini’s ruling shifts the spotlight to the performance of the Berkshire District Attorney’s Office, District Attorney Harrington was the one who brought that spotlight to this case. In March 2021, she summoned the media to the courthouse and announced the Tuckers’ indictments while courting microphones and cameras for public pronouncements about “seeking justice.” Anyone truly concerned with that mission knows that our justice system gives immense discretion to district attorneys, and the judge’s unambiguous ruling in this case adds to the concerning questions about how that discretionary power is wielded by the county’s top law enforcement officer.

District Attorney Harrington owes her constituents some answers to those questions before they decide later this year who should run that office. For starters, she should publicly specify the merits of her office’s appeal in this case, instead of trying to run out the clock on it.

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