Berkshire DA says exit aimed at helping top aide win post

GOV. CHARLIE BAKER and Berkshire County District Attorney David Capeless are coming under fire for setting up a behind-the-scenes hand-off of the DA’s post to the office’s first assistant.

On Thursday, Capeless made the surprise announcement that he was stepping down after 14 years in office. But he made an even more surprising admission about the timing of his move: Capeless said he was resigning now and not serving the final 10 months of his term so that his handpicked successor, First Assistant District Attorney Paul Caccaviello, could run for a full four-year term this fall as an incumbent.

“I am taking this step now because I want Paul to be able to run for election as the district attorney, as I did 14 years ago,” Capeless told reporters in a briefing in his Pittsfield office. Capeless, a Democrat, was appointed to the post in March 2004 by then-Gov. Mitt Romney following the sudden death of then-DA Gerard Downing and went on to win a special election for the seat that fall and full, four-year terms in 2006, 2010, and 2014.

Yesterday’s move drew criticism from the American Civil Liberties Union of Massachusetts, which recently launched a public information campaign to highlight the important role played by DAs – and the vital role of voters in selecting a county’s top prosecutor.

“It creates an unfair advantage for the person if he is more or less crowned by the sitting DA,” said Rahsaan Hall, director of the group’s Racial Justice Program. “Democracy works better when the public is more engaged in the decision-making processes and knows how those processes are taking place.”

Vacancies in district attorneys’ offices in Massachusetts are filled by appointment of the governor. In a further unusual wrinkle to Thursday’s developments, Capeless himself announced that his longtime lieutenant would be appointed by Baker to fill the post when he steps down on March 15.

While a gubernatorial appointment gives whoever fills a post a clear advantage in the subsequent election to win the seat, it was surprising to hear an outgoing official so candidly declare that to be the motive for stepping down before a term has ended.

“It’s very unusual,” said Judith Knight, a Great Barrington attorney who challenged Capeless in 2006. “Paul Caccaviello is very well liked in the community,” she said. “On the other hand, there has been mixed reaction because it doesn’t feel right that he should resign and give his first assistant a leg up.”

Capeless did not return a call on Friday.

Baker’s office did not return a message asking whether the governor was troubled by Capeless’s decision to step down early in order to give his top aide a chance to run as the sitting DA.

A statement released by the governor’s office on Thursday confirmed that he plans to appoint Caccaviello to fill the DA’s post. But even the wording of the statement seemed to underscore the awkwardness of appointing someone to position that voters will, in a matter of months, weigh in on. Baker “believes Mr. Caccaviello’s years of experience and knowledge from the DA’s office make him well qualified to serve in this position pending the results of the November election,” said the statement.

The ACLU public information campaign, dubbed “What a Difference a DA Makes,” is aimed at promoting more vigorously contested races for district attorney. A poll the organization released last summer found that 38 percent of Massachusetts voters were not even aware that DAs are elected positions.

Hand-offs like the one playing out in Berkshire County “are part of the problem,” said Hall, the ACLU official. “That’s why so few think it is an elected post – because you have appointments and transitions of power that take place like this.” He said filling the slot with someone who immediately becomes the favorite to win the seat “stifles the debate” on criminal justice issues by reducing the chances there will be a widely contested race to fill the position.

Knight, the Great Barrington attorney who ran against Capeless 12 years ago, may be a case in point. She said there had been talk in Berkshire County legal circles that the 65-year-old Capeless might retire after his current term. Knight said she had been considering another run for the seat in an open race, but the announcement by Capeless that he plans to resign and that his top assistant will take the reins and run for the seat this fall gives her pause.

“I have not ruled it out,” she said. But the new circumstances mean she has to do some “rethinking” of a possible run.