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Maybe his name was Louis Piccone. Or David Coons. Or Rinaldo Del Gallo. Or James Clark. Or Scott Hunter. There is one theme in common: an out of control Berkshire County District Attorney's Office that is losing case after case in the area of domestic crimes. In an effort of achieving zero tolerance of domestic violence, sexual assault, and child abuse, the office has developed a 100% tolerance of cases either completely lacking in probable cause or rife with inventive theories of criminal liability.

With Jim Clark, District Attorney Capeless attempted to be the first ever to bring charges against an out of wedlock father for "kidnapping" his own child, despite the fact that no order existed regarding custody of the children. The father had merely taken his children away for the weekend in the Catskills. His case was dismissed. Had the couple been married, Capeless could not have brought the charges, for both parents are presumed to have equal rights prior to a court order. But Capeless wanted to test the limits of the law and head into unchartered waters, for heaven knows what greater purpose. When a prosecutor brings charges, he should be fighting an obvious and serious evil and not a mere technical violation of the law, as became evident in the Piccone case itself.

But apart from bringing forward cases that seem to serve no great purpose, Capeless repeatedly brings forth domestic cases that have no merit because he has a "no drop" policy to show voters he is "tough on domestic crime." The policy is unethical because prosecutors have an ethical duty to drop cases lacking probable cause. In the case of David Coons, represented by Attorney Greg Hession of Springfield, the defendant was quickly found not guilty of sexual assault charges against his own children. The evidence was weak. And then there was my case (I was represented by Hession) where all potential witnesses notified the District Attorney's Office that they had no testimony that could be used for the DA to establish a case-yet the DA kept marching forward with no discernible means of proving their charges. A judge dismissed two-thirds of the charges and a jury quickly came with a "not guilty" finding on the rest. Scott Hunter, who I represented, was charged with assaulting his own child by jerking him up by one arm despite all the medical evidence available to the prosecution that this was impossible. He literally didn't have enough time to finish a cigarette during the length of time for the jury deliberations-he was found not guilty in nanoseconds.

I spoke with Attorney Swomley who represented Louis Piccone. Swomley, a Boston attorney, was largely chosen because of his headlining work in the Bernard Baran case which DA Capeless also will not drop. As Swomley explained, Piccone was being charged with kidnapping by a relative under the theory that when the Department of Children and Families (DCF) took custody of the children, Piccone had no right to keep them. But there were problems with this theory. Piccone's Russian wife had taken the children, not Louis Piccone. According to Swomley, District Attorney Capeless was actually trying to charge someone with "kidnapping" that never physically took possession of the so-called kidnapped child. That's as nonsensical as a theft without taking anything. Even more ridiculous, according to Swomley, the wife had never been served and service by publication did not take place to the child was in Russia. Swomley stated that DCF does not legally take custody of the child until service is made (which makes inherent sense)-in other words, Louis's wife never legally lost custody because she was never served, and you cannot kidnap your own child when you still have legal custody of them. A Massachusetts court [Commonwealth v. Beals] already held, "in the absence of a custody order altering his or her natural custody rights to a child, [no one] commits the crime of kidnapping by taking exclusive possession of the child."

But apart from legal charges against Piccone having no merit, Capeless demonstrated problems of the heart. When your children are taken from you "ex parte," meaning taken without your presence in a court room due to a DCF perceived emergency, you have a right to a 72-hour hearing in Juvenile Court to see if you are a bad parent. In writing his decision to dismiss the charges against Piccone without a trial, District Court Judge Vrabel stated that "it was not clear from the record" why Piccone was not granted a 72-hour hearing. But eventually Judge Belsky of the Juvenile Court did render a decision. As Judge Vrable wrote, "Judge Belsky ruled that based on the review of the evidence before him the defendant would have prevailed at the 72 hour hearing in Juvenile Court." Putting aside the technical niceties of whether there was a kidnapping, District Attorney Capeless showed a complete lack of compassion and sense of higher purpose when he tried to prosecute a parent for kidnapping his child after DCF ostensibly took custody despite a Juvenile Court judge ruling that there was absolutely no evidence of abuse and the court would have so held had there been a 72-hour hearing. Ethical people feel sorry for the wrongfully accused, not further prosecute them.

But not letting sleeping dogs lie, the District Attorney plodded forward, claiming there was also kidnapping when DCF took custody ex parte. According to Judge Vrabel's opinion, DCF took custody because the parents would not submit their child to investigation without it being videotaped-a generous offer since there is not even a duty to submit a child to investigation in the first place absent a warrant. In other words, DCF did not take custody because there was substantial evidence of abuse, but only because Piccone wanted the interview of his child to be videotaped. Judge Vrabel correctly wrote, "This court is not aware of any statute, regulation, or case law that holds that such conduct constitutes the serious abuse or neglect necessary for the commencement of a care and protection proceeding."

Prosecutors have "prosecutorial discretion" in deciding whether to bring forward charges. But prosecutorial discretion necessarily entails carefully examining each case for both merit and the greater societal purpose in advancing the case. Political buzz words like "no drop policy" or "zero tolerance" get you elected.

The author is a practicing attorney and spokesperson for the Berkshire Fatherhood Coalition.

For more information on the Piccone case itself, go to BerkshireHorror.com