I wish the district attorney had charged her. I wish Frank Sedita III had taken what the grand jury reportedly offered and run with it. I wish he had the prime suspect arrested and dragged into court.
Even if the case looks like a loser, at least then you could say you tried. Even if a jury probably wouldn’t return a guilty verdict, at least the family and friends of Barry Moss would get some sense of satisfaction. Maybe even solace.
That is not, unfortunately, what Sedita will do. That is not, sadly, the reckoning that Gabriele “Gabe” Ballowe will face.
There is punishment in forcing someone to stand trial. There is the humiliation of being accused of a despicable crime. There is the high price of a defense attorney. There is the daily emotional pain of sitting in court. There is the psychological toll – even if a jury does not see guilt beyond a reasonable doubt – of a conviction in the court of public opinion. I think all of that is underestimated, when a district attorney decides whether to charge a suspect, or to take a pass.
If the community can’t exact a pound of flesh in punishment for a crime, we like to at least extract a few ounces. But the prime suspect, in this case, will apparently avoid even the pain of a trial. She will never be asked to explain where she was on the December night that the Evans handyman was run over and left to die. She will never be required to say how his DNA ended up on her damaged Ford Explorer. Or why it was found in a friend’s repair shop 20 miles distant. She will not be required to explain why pieces of the SUV were found near where Moss, 52, was hit while walking or riding his bicycle home from a friend’s house.
Those questions, barring new evidence to press the case, will apparently never be answered.
A grand jury last month reportedly voted to indict Ballowe on felony charges of driving while intoxicated and leaving the scene of an injury accident. Aside from the physical evidence, she was seen getting behind the wheel alone after leaving a Hamburg bar shortly before Moss was hit on Route 5, the road she likely would have taken to her home at the beachfront bar she co-owns.
According to a report by Dan Herbeck of The Buffalo News, a supervisor in the DA’s Office – presumably on Sedita’s orders – persuaded indictment-minded grand jurors to change their minds. So after voting to charge Ballowe, they revoted not to.
I have no idea why Sedita double-clutched. He can’t legally discuss grand jury proceedings, and didn’t return a call requesting comment. My best guess is he felt pressured by police and public sentiment to take a relatively weak case to a grand jury, not expecting an indictment. And if he got one, he didn’t expect that a prosecution-suggested revote would be made public.
Whatever the case, I understand – in my head, if not in my heart – Sedita’s reluctance to prosecute.
Having a good idea that someone is guilty of a crime is a long way from proving it beyond a reasonable doubt. That was, from the beginning, the huge problem with Moss’ death. As lawyers like to say, the case is a loser.
Police and prosecutors have less evidence against Ballowe than they did, infamously, against Dr. James Corasanti. And we know how that one ended. The Getzville doctor was cleared two years ago of felony charges in teenager Alix Rice’s hit-and-run death – even though he admittedly was driving the luxury sedan that struck her that night, and blood-draw evidence showed he was drunk.
In the Moss case, no eyewitness saw Ballowe – who has refused to talk to police – behind the wheel near the accident scene. There is no proof she was drunk. Indeed, postmortem evidence showed that Moss was intoxicated, which – a defense attorney presumably would argue – may have caused him to weave into traffic. Ballowe might claim, as Corasanti persuasively did to jurors, that she didn’t know she had hit someone.
“It’s a very tough case. I can see why Sedita passed on it,” a prominent defense attorney told me. “I don’t like him asking the grand jury for a do-over, I think that undermines the credibility of grand jury proceedings. … But it would’ve been a difficult case to prosecute.”
Which doesn’t mean the district attorney shouldn’t have tried. There is a measure of justice in pressing a case, in forcing a suspect to legally defend herself, in making her explain her actions and endure the public and media spotlight.
Moss’ roadside death, and the failure to thus far hold anyone accountable, has broken the hearts of his family. It has infuriated his friends. It has frustrated the cops who worked on the case. It has, I suspect, even irked and angered Sedita.
All of which gets whoever did this no closer to any kind of justice.
As Maria Wrafter, Moss’ sister, told me: “What kind of message does this send? You do something wrong, you run and hide, you get a lawyer, you don’t take responsibility – and you end up being rewarded.”
Wrafter still hopes that someone will come forward with more evidence. Family members will soon reach into their pockets to bump up the $1,000 reward from the Crime Stoppers program. It’s hard not to feel for them when Wrafter says, “I don’t want to look foolish, but I couldn’t forgive myself if we don’t keep trying. It’s hard to look at my mother and Barry’s kids, just having it left this way.”
The case, as the lawyers say, may be a loser. But sometimes justice is about more than winning in court.