After serious court delays, 4 cases against jailed felon dismissed

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PITTSFIELD — Late last week, a judge dismissed four open cases against a former Williamstown man, ruling that the state had failed to provide a justification for lengthy delays in bringing those cases to trial and violated the commonwealth's speedy-trial provision.

Despite the dismissal, Ernest Harvin, 43, remains in custody, serving a 14- to 17-year state prison sentence on drug and weapons charges, separate from the four dismissed cases. There are 21 counts spread among those cases, including charges of kidnapping, illegal weapons possession, aggravated assault, escape from a penal institution and witness intimidation.

"I am mindful that dismissal is a severe sanction that must be exercised with great care," Judge Mark Mason wrote in his six-page decision, filed in Berkshire Superior Court on May 31.

"I have weighed the important public interest in ensuring that [Harvin] be brought to trial on the four cases before me," part of his decision reads. "But ... the delays in bringing the defendant to trial ... are significant."

The decision comes in the wake of a May 20 hearing on a motion to dismiss the four open cases filed by Harvin's attorney, Edmund St. John III.

"District Attorney Harrington's administration has prioritized advancing the backlog of Superior Court cases that existed prior to her taking office; however, we cannot turn back time," says a statement from Andrea Harrington's office released Tuesday afternoon. "While we respect Judge Mason's decision, we are disappointed that we were unable to obtain justice for the victims in these matters. We have implemented strict oversight of the Superior Court trial list in order to ensure that cases are heard within the time frame required."

Massachusetts law states that if a defendant is not tried within 12 months after arraignment, they can seek to have the case dismissed. The state must then justify such a delay either by showing it falls within a period of allowable excluded time, such as agreed-upon continuances, or that "the defendant acquiesced in, was responsible for or benefited from the delay."

It was the acquiescence argument that was made by Assistant Berkshire District Attorney Joseph Yorlano in opposition to St. John's motion. The state argued that there were at least three factors that contributed to the delay in Harvin's cases: the May 8, 2014, killing of Joshua Bresette, Harvin receiving his state prison sentence and Harvin's stated competency issues in the lead-up to trial.

"This is exactly what Mr. Harvin wanted," Yorlano argued during the hearing.

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Mason disagreed with the state on each of those fronts. He said the state failed to establish that Bresette's killing was responsible for any delay in bringing the cases to trial, nor was there evidence that the imposition of Harvin's sentence delayed any of the trials.

Mason said he did take Harvin's competency issues into consideration as to what time should be excluded from the speedy-trial calculations. Even taking into account the time that could be excluded from those calculations, Mason noted the trials were delayed 468 days in the most recent of the four and 690 days in the oldest — all well over the 365-day standard.

The issue of Bresette's killing was raised as he was willing to testify against Harvin at trial. Bresette, 25, of North Adams, was reported missing May 5, 2014. His body was found on a Bronx, N.Y., rooftop May 8 with three gunshot wounds to the back and one to the head. No one has yet been charged with Bresette's killing, and it remains an open investigation by New York Police and the FBI.

In November 2014, Harvin pleaded guilty to 13 charges, including multiple counts of possession of heroin with the intent to distribute and possession of a firearm in the commission of a felony, along with other drug-, weapons- and trafficking-related charges. About one week before that plea hearing, Harvin allegedly faked a suicide attempt and was sent to Berkshire Medical Center for treatment.

While there, he was found to have hidden a piece of metal in his shoe that could have been used in an attempt to pick the locks of his restraints, according to prosecutors.

Searches of Harvin's cell turned up other pieces of metal that could have been used as escape aids or weapons.

He also is accused of threatening and attempting to intimidate Department of Correction staff and authorities investigating his charges. Before trial on those charges, St. John raised concerns with the court that he was having trouble communicating with Harvin, feared that he wouldn't be able to participate in his own defense and asked that he be evaluated by a mental health clinician.

When asked, Harvin said he did not understand why he was in court during that Nov. 9, 2016, hearing. He was found not competent and ordered to undergo further evaluation at Bridgewater State Hospital.

In another of the dismissed cases, Harvin was charged in an alleged kidnapping and assault of two men in Williamstown from Jan. 1 to Jan. 30, 2013. Harvin had threatened to kill the two men because they owed him money for drugs, according to police.

Bob Dunn can be reached at bdunn@berkshireeagle.com, at @BobDunn413 on Twitter and 413-496-6249.


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