A murder case, 2 defendants - does 1 have a deal with prosecutors? Judge tries to suss it out
PITTSFIELD — Deal, or no deal?
That's the question surrounding the criminal case of Peter Campbell, one of two men charged with murder in the death of Anthony Gamache in 2014, and whether Campbell has an undisclosed deal with prosecutors.
Judge John Agostini ruled that putting Campbell on trial first will help illustrate whether he received any type of consideration from the state that might impact his expected testimony against his co-defendant.
Prosecutors maintain that they have not considered a deal with Campbell for a favorable sentencing recommendation in exchange for his testimony against co-defendant Laquan Johnson.
Agostini isn't so sure about that, saying in a four-page decision in early September that it's hard for him to accept that there is no "backroom deal" between the state and Campbell.
"Campbell is essentially throwing himself at the mercy of the DA's office on a murder charge, leaving himself without options or negotiation leverage," Agostini said.
The judge noted that the state won't even concede that it would consider a reduced-sentence recommendation for Campbell's cooperation.
Johnson's attorney, Calvin C. Carr, said during an August pretrial hearing, that if such a deal exists, it needs to be disclosed so that information can be presented to a jury, which would have to decide how much weight to give Campbell's testimony under those circumstances.
During that hearing, prosecutors said Campbell was cooperating with them, had testified before a grand jury and would testify at trial against Johnson, but was receiving no concessions for that cooperation.
Carr questions why Campbell would testify before a grand jury and consider pleading guilty without a deal in place.
Agostini noted that in June 2015, the DA's office indicated that if Campbell were to plead guilty, the state would reduce the murder charge to manslaughter and offer a lesser penalty than would have come from a murder conviction. That offer was rejected, according to the decision.
A hearing had been scheduled for September, when it was expected that Campbell and his attorney, Jared Olanoff, would be examined under oath to determine what, if any, relationship or deal exists between the state and Campbell.
That hearing was canceled in light of Agostini's ruling.
The state filed its own motion to reconsider conducting that hearing, arguing that it was unnecessary, the court didn't have the authority to conduct it and that conducting it at all could potentially violate attorney-client privilege.
Agostini said he wasn't convinced that the court lacked the authority to conduct the hearing, but was mindful that the court has to avoid meddling with the DA's office and its function of prosecuting cases as well as the attorney-client privilege.
"It is a course of action that should be used sparingly," Agostini said, noting the consequence of simply taking the state at its word that there is no agreement is significant.
"For example," Agostini said, "if Campbell is unhappy with a sentence imposed, I expect to see a motion to withdraw the plea with an assertion that there was, in fact, an agreement with the Commonwealth and it was breached."
More concerning, Agostini said, was a scenario in which Campbell testified and Johnson was convicted, but Campbell received a lesser sentence recommendation than previously offered.
"Since the Commonwealth is not even offering Campbell `consideration' if he cooperates, such an event would be problematic for there would be no legitimate reason to offer a concession since `cooperation' is not a factor.
"This would make the Commonwealth's assertion that it did not enter into an agreement untenable."
Agostini's solution is to have Campbell's case resolved first, either by trial or guilty plea in mid-November with Johnson's trial to follow. Johnson's trial is tentatively scheduled to be held in January, according to the Berkshire Superior Court Clerk's Office.
"In this manner any consideration given to Campbell will be unambiguously identified," Agostini said. "There will be no uncertainty in Campbell's motivation to testify."
A message left for Olanoff on Wednesday morning was not immediately returned.
Campbell and Johnson are accused of setting up a proposed purchase of marijuana from Gamache on Nov. 18, 2014, in the parking lot of the Big Y supermarket on West Street in Pittsfield.
Campbell allegedly tried to talk Johnson out of bringing a gun to the deal, but failed to persuade him. Johnson is accused of firing a shot into Gamache's leg while all the parties were in a parked car.
Gamache, 21, was taken to Cooley Dickinson Hospital in Northampton and later transferred to Baystate Hospital in Springfield, where he was treated and released.
The next evening, Gamache went into cardiac arrest at his home and was rushed back to Cooley Dickinson, where he was pronounced dead.
Olanoff said his client didn't plan to rob Gamache and couldn't talk Johnson out of bringing the weapon to the deal.
"There was no intent to kill on Mr. Campbell's part," Olanoff has said, adding that Campbell didn't know Johnson would shoot Gamache and that he would die a day later.
Bob Dunn can be reached at email@example.com, at @BobDunn413 on Twitter and 413-496-6249.
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