As a prosecutor for 27 years, Erie County District Attorney Frank A. Sedita III has heard judges come down hard against transgressions plenty of times.
But convicted offenders are the usual targets.
A trial judge who on Tuesday vacated a jury’s guilty verdict in a murder case blamed a juror for a “lack of candor and credibility” that the judge said jeopardized Jeffrey J. Basil’s right to a fair trial.
State Supreme Court Justice Penny M. Wolfgang strongly criticized Juror No. 12, whom the judge accused of misconduct for concealing during jury selection her military service and previous arrest.
Wolfgang said she set aside the verdict because “one particular juror’s conduct was so prejudicial that it tainted the entire process.”
“Despite having taken a solemn oath to ‘answer truthfully questions asked them relative to their qualifications to serve as jurors,’ Juror No. 12 did no such thing,” the judge said.
Unless Sedita successfully appeals Wolfgang’s ruling, prosecutors will have to again mount a case against Basil, the former Molly’s Pub manager accused of murdering bar patron William C. Sager Jr. by pushing him down the stairs of the University Heights bar last May.
“I’ve never seen a judge’s decision that attacks a juror like this,” Sedita said. “It just goes on and on to lambaste a citizen who agreed to sacrifice her time and her life to serve” on the jury.
“I feel badly for Juror No. 12,” Sedita added. “This juror has now been repeatedly called a liar, over and over again, by a judge.” Sedita said he doesn’t plan to file criminal charges against the juror.
Sedita said his office will either appeal the judge’s decision or retry the case on the original murder and manslaughter charges.
Prosecutors and defense attorneys will meet with Wolfgang on June 9 to discuss their next steps; Basil remains jailed without bail.
The juror’s past began to come to light a day after the jury convicted Basil on Jan. 21. During a Channel 7 interview, the juror indicated she was especially affected by the testimony of one of Sager’s military friends, Matthew Baird, who tended to the 28-year-old victim in the bar’s parking lot and refused Basil’s order to leave.
“You never leave a man behind, and that was heartfelt to me,” the juror told Channel 7, recalling Baird’s testimony that he was trained in the military “to never leave a wingman behind.”
Defense attorney Paul J. Cambria Jr. moved to set aside the verdict because he said the juror’s military service biased her in favor of Sager, who was a crew chief in the Air National Guard, and against Basil.
The juror served in the Air Force Reserve from 1999 to 2001.
If Basil’s lawyers had known the juror had served in the military, Cambria has said, she would not have been picked to serve on the jury because of the victim’s military service.
Cambria has said the juror’s comments showed “that she was not acting as a fair and impartial juror when rendering her verdict against Mr. Basil, thus depriving him of his constitutional right to a fair and impartial jury.”
The defense attorney also contended that the juror’s 1997 arrest on charges of grand theft in Florida for allegedly stealing jewelry from her employer – plus the fact the case was not prosecuted – may have biased her in favor of the prosecution.
Cambria said that “her prior arrest and the disposition of her charges as a result of favorable treatment by the prosecution would … have been more than enough basis for a peremptory challenge” to her serving on the jury.
The juror, a 47-year-old woman, has said she did not conceal information about her military service during jury selection.
“During the process of jury selection, I was never asked about having served in the military,” the juror said in an affidavit.
In addition, she said she was one of three jurors who voted against convicting Basil of second-degree murder when the 12 jurors took their first ballot on the charges against the former manager of the Main Street bar.
In her affidavit, the juror acknowledged that when she was asked during jury selection if she had ever been accused of a crime, she did not mention her 1997 arrest in Florida on a grand theft charge.
“I failed to recall because no prosecution or court action ever occurred in the matter, it was a long time ago, and I simply forgot about it,” she said.
“I did not intentionally conceal information from the court in the Basil case and certainly did not do so in an effort to get on the jury.”
Wolfgang saw the issue as the juror’s concealment of her military service and her statement that she had never been arrested.
Although the juror was not asked directly if she had served in the military, the juror said during an April 7 hearing on the motion to set aside the verdict that she could hear all the questions that other prospective jurors were asked, including whether they had served in the military, Wolfgang said.
The judge said it was clear during the juror’s interview with Channel 7 that her military service had a profound effect on her, citing her statement that “you never leave a man behind.”
Although the juror concealed her military service from the court and the attorneys during jury selection, she later told fellow jurors that she had served in the military, Wolfgang said.
What’s more, the juror’s testimony at the April hearing that she had forgotten her 1997 arrest in Florida was not credible, Wolfgang said.
The judge noted the grand theft charge “is an indication of dishonesty and makes the right of counsel to inquire further of significant importance.”
She said the court and the attorneys in the Basil case were entitled to full disclosure so they could evaluate whether the juror should be seated.
“Here the juror’s lack of candor and credibility, as well as her military connection, puts this case in the category of those in which the cumulative evidence warranted setting aside the verdict to preserve the integrity of the judicial process and to ensure the defendant’s right to a fair trial by an impartial jury,” the judge said.
Assistant District Attorney Christopher J. Belling had opposed the motion to set aside the verdict. Belling said two other jurors with military service were selected and that an alternate juror with an arrest record also was picked.
But Cambria said those jurors had disclosed their military service and arrest records during jury selection. So the attorneys were able to question them about their service and arrest record to determine if they could be fair and impartial.
Sedita talked about the effect of the judge’s decision on Sager’s family, who were in the courtroom for the decision.
“It’s professionally challenging for us,” he said. “It’s devastating for them.”
Sager’s family lost a loved one in a “senseless” crime committed by “a complete thug,” Sedita said.
After falling down the stairs, Sager hit his head on the floor, suffering a skull fracture that left him in a coma and led to his death July 31 in Erie County Medical Center.
Sedita said he hopes Sager’s loved ones still trust his office, but he said the judicial process let the family down.
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