PITTSFIELD -- District Court Judge James B. McElroy scolded prosecutors and police Monday for what he said was the intentional withholding of evidence in the trial of a family that had resisted turning their grandchild over to state workers in August of 2008.

After the admonishment, McElroy dismissed all charges against the Simonetta family, and one of the family's attorneys vowed legal action.

Joseph Simonetta, 70, had been charged with disorderly conduct, resisting arrest, and assault and battery of a police officer. Debra Simonetta, 54, faced charges of disorderly conduct and resisting arrest. The grandparents' daughter, Jolene Simonetta, 28, had been charged with resisting arrest in the case of her niece.

"The Commonwealth's compliance with Rule 14 [evidence] discovery, and other discovery matters, has been severely substandard, and as a result of that substandard performance, the defense has been hindered and hampered and interfered with for no other reason than gamesmanship," McElroy said.

The Simonettas' defense attorneys had contended that two workers from the Massachusetts Department of Children and Families refused to produce official documentation that gave them the right to take custody of the 2-year-old girl after the girl's mother -- Kelly Simonetta -- had brought the girl to the grandparents' house after an alleged violent episode by the child's father in North Adams.

Defense attorneys then said that when police were called, they forced their way into the Simonetta home without a warrant or probable cause and unnecessarily assaulted the three family members that were there.

Prosecutors maintained that whatever instigated the situation, the Simonettas refused to comply with lawful orders from police officers, resisted arrest, and that Joseph Simonetta attacked an officer when he tried to enter the home.

In the end, it became clear that evidence produced by police officers after the Aug. 14 incident was sketchy or missing:

n The second page of one police officer's incident report was deleted from a computer, and the second page of the hard-copy report also was missing.

n Incident reports from two other officers on the scene were never turned over as evidence.

n Three "injury to prisoner" reports and four "use of force" reports were filled out by police officers the day of the incident, but were never submitted to the court as evidence.

n The Pittsfield Police Department's Use of Force Manual, subpoenaed on Dec. 1, 2009, was not produced until last Wednesday, the day the trial began.

The delay in providing the manual, the "mystery" surrounding the missing second page of the police officer's report, and the failure to surrender other police reports in a case involving alleged police brutality gave defense attorneys plenty of reason to seek dismissal of all charges.

"That, to me, smacks of nothing but gamesmanship to make it more difficult for the defense to prepare its case," McElroy told Berkshire Assistant District Attorney Joseph A. Pieropan. "These egregious failures have resulted in severe and irreparable prejudice to the defendants in this case. Therefore, all the charges against all three defendants are dismissed."

McElroy also notified the district attorney's office and the police department that he will hold them to higher standards in future trials.

"This trial may be over, but just so the commonwealth is aware, this has been a very educational experience for this judge. And from this day forward, the discovery process is going to be studied by me very, very closely," McElroy said. "I expect the commonwealth to do the footwork. It is hard work, but it is your job. That is not going to fly with this judge anymore."

Joseph Simonetta said he was happy to be free of the 18-month ordeal, but had some regrets.

"I'm pleased with the judge's decision, but if this trial had gone on, we would have found out about more and more lies," he said. "And there's another tragedy -- we haven't seen our granddaughter since [the August 2008 incident]. That baby should be with her mother."

Toddler is with grandparents

Currently, the 2-year-old girl is staying with her paternal grandparents. "I'm happy for this family -- it's been a long time coming," said attorney Alexander R. Shmulsky, who represented Jolene Simonetta and made the motion for dismissal on the trial's opening day. "I think this proves they did nothing wrong."

Currently, the 2-year-old girl is staying with her paternal grandparents. "I'm happy for this family -- it's been a long time coming," said attorney Alexander R. Shmulsky, who represented Jolene Simonetta and made the motion for dismissal on the trial's opening day. "I think this proves they did nothing wrong."

Attorney John G. Swomley, who represented Debra and Joseph Simonetta, said there will be further action as a result of this case.

"The next step is that we are going to sue their pants off," Swomley said. "They have to have their noses rubbed in the mess they made, like a bad dog. One could make the argument the police intentionally did this [withheld evidence] to cover up its own wrongdoing."

Swomley said he also will seek to restore custody of the little girl to her mother.

"We will pursue all means to repatriate mother and daughter," Swomley said.

Pieropan declined to comment on the judge's admonitions, but Berkshire District Attorney David Capeless said logistical failures led to delays during the evidence discovery process.

"Discovery in criminal cases is an ongoing process that often continues up to and, sometimes, during trial," he said in a statement. "In this case ... the submission of reports did not occur in a single stage or result in the creation of a single file. As a result, complying with the defendants' multiple discovery requests was made even more difficult."

DA blames attorneys, court

Capeless also laid blame on the defense attorneys and the court.

"Although the information in the recently discovered reports was largely cumulative of the reports provided to the defendants well in advance of trial, and the defendants never specified the prejudice they actually suffered, the court chose to dismiss the complaints," he said. "I trust that, in the future, the court will honor its promise to hold all parties to the requirements of the rules of criminal procedure when a defendant's discovery obligations do not comply with the rules."

During testimony, it was revealed that two Department of Children and Families employees did not show any documentation to the Simonettas while trying to take the child, and there was no apparent urgency or risk of abuse and/or neglect provided to juvenile court officials justifying the need to take the girl into custody immediately.

The girl's father is Matthew Trombley. Custody of the girl was granted to Trombley's parents on Aug. 15, 2008, the day after the raid on the Simonetta home.

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