BYLINE: John Sakata, Berkshire Eagle Staff
EGREMONT -- Lawyers representing two teenagers facing drug charges will ask a judge next month to dismiss their cases because two Egremont officers violated protocol by breaking into their station's evidence room to look at the drugs.
In a September motion to dismiss the charges, attorney Lori Levinson claims the "loss or destruction of evidence" would deny her client a fair trial.
"The absence of bad faith does not relieve the Commonwealth of culpability nor does it prevent this court from ordering dismissal if there is issue on destruction of evidence violating the defendant's rights," Levinson wrote.
Prosecutors, however, deny any evidence has been destroyed.
Michael Consolini, of Sheffield, and Nathan Lopes, of Housatonic, both 19, were arrested at French Park on May 1 for alleged drug possession and other charges. Police confiscated about 16 grams of cocaine and an ounce of marijuana, as well as psilocybin, commonly known as hallucinogenic mushrooms, and bath salts, according to court documents.
Levinson is representing Consolini in the case. Attorney Jedd Hall has filed a similar motion on behalf of Nathan Lopes. The lawyers were scheduled on Thursday to ask Southern Berkshire District Court Judge Fredric Rutberg to dismiss the charges. That hearing has been moved back to Nov. 7.
Days after the arrest, Officers Edward Pezze and Kyle Kemp broke into the evidence locker on May 4 to look at the large drug stash, according to an account Pezze filed with the court.
In his written account, Pezze said he approached Kemp about looking at the confiscated drugs after learning about the arrest in a newspaper. He had never seen bath salts during his police training, he wrote, and he was curious to see what the drug looked like.
Kemp removed the doorknob to the evidence room using a tool in the police chief's desk. The officers entered the evidence room and then removed the bagged drugs, but never opened the bags, according to Pezze's account.
"Being a sworn officer in the town of Egremont and having no previous training about chain of custody or evidence tampering during my field training with the town, an honest mistake was made where I thought I was allowed to view the evidence," Pezze wrote in a statement, which is included in court documents.
Kemp acknowledged that he was aware of chain of custody regulations and that he knew the officers shouldn't be in the evidence room, according to the documents.
The officers' actions came to the attention of Officer Hans Carlson after Kemp began talking about the evidence, according to his written account. Kemp wasn't assigned to the case, so he shouldn't have known specifics about the evidence.
Carlson then reported the issue to the police leadership, including Acting Chief Brian Shaw, and then Assistant District Attorney Dana Parsons.
After examining the evidence, Parsons said the prosecution would move forward because the "integrity of the evidence was intact," according to the court documents.
It was unclear whether Pezze or Kemp have faced disciplinary action for their actions.
Consolini and Lopes each have five charges against them. Consolini is charged with trespassing with a motor vehicle, a drug violation near a school park, and multiple charges of drug possession with the intent to distribute.
Lopes was charged with trespassing, drug possession, disorderly conduct, and charges related to resisting arrest.
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