The legal arguments were heated in State Supreme Court on Thursday morning as a judge heard defense motions to obtain all transcripts, notes and logs from two grand juries that heard the evidence against Gabriele Ballowe, who is charged in the hit-and-run death of Barry T. Moss.
Ballowe, 50, of Evans, faces four felonies counts for allegedly striking Moss, 52, of Angola, with her sport utility vehicle Dec. 22, 2013, off state Route 5 in Evans and driving away. A 2014 grand jury first voted to indict her, then at the request of the Erie County District Attorney’s Office, voted a second time and opted not to charge her.
Last month, a grand jury, hearing new evidence, voted to indict. There are 23 people on a grand jury; at least 12 have to agree for a person to be charged. By law, all grand jury proceedings are secret.
On Thursday, in response to the defense motions, Assistant District Attorney Nicholas T. Texido told Justice Christopher J. Burns that the 2014 grand jury actions are irrelevant to the current charges, that even if they were not irrelevant they would not change the outcome of Ballowe being indicted, and that nothing improper ever occurred with either panel.
Defense attorney Thomas J. Eoannou contends that the only way to know whether those statements are true is for all the grand jury information to be released to the defense. Without giving specifics, he raised questions of jury tampering, impropriety and the public’s right to know what was behind the decision to ask the 2014 jury to vote again – even though that action didn’t charge his client.
Texido said the answer was simple.
“When a witness – let’s say multiple witnesses – testify in front of a grand jury and they don’t testify to what a prosecutor expects, it affects the ability to prosecute,” he said.
Texido used the example of Lynne A. Laettner, a Ballowe friend who faces felony perjury charges over her testimony to the first grand jury. Prosecutors have suggested that other witnesses also came forward to say they were not truthful the first time and wanted to change their testimony – hence, the second grand jury.
The question is, after hearing the alleged perjury in 2014, should prosecutors have asked the grand jury for the first vote, which came back to indict Ballowe? Texido argued that then-District Attorney Frank A. Sedita III was obligated to send the case back to the grand jury when he heard about the unexpected testimony after the first vote. “It’s not until he knows what was said that he could make that determination,” Texido told the court.
In any case, he said, what happened in 2014 was irrelevant, since “no indictment flowed from that grand jury.”
Eoannou and his team were in the odd position of arguing against the 2014 outcome under which their client was not charged. “It was anything but fair,” attorney Joseph J. Marusak said.
By having a grand jury walk back the first true bill, he argued, it deprived Ballowe of her right to a speedy trial, “when the relevant evidence is freshest in the minds of the witnesses.”
“The public is entitled to that trial, as well,” he continued.
He suggested that the argument that the evidence was “legally insufficient” was a cover by the former district attorney, now a State Supreme Court justice, to “pad” his conviction statistics. He also implied that it was possible that prosecutors did not follow the rules of due process with the grand jury and suggested an investigation might be in order. Both he and Eoannou also questioned whether all the instructions to the 2014 jury before the second vote were transcribed.
Texido dismissed those suggestions, saying, “All the court has to do is look at (the transcript) and say ‘Yep, it was recorded.’ ”
After the hearing, acting District Attorney Michael J. Flaherty Jr. called these particular defense motions a distraction, referring to them in court papers as “an attempt to turn this case into a political circus” to promote another candidate in the coming election for district attorney. He said he saw it as an effort to turn attention from Ballowe’s case and Moss’ death “by making Frank Sedita and me into the big, bad guys.”
He also refused to criticize Sedita’s decision to send the case back for a revote in 2014. In a similar situation, he said, he might do the same.
“As the legal adviser to the grand jury, I would be bound both as the ethical adviser to the grand jury and as a decent human being to do it,” he said, adding that he could not allow a grand jury to charge someone with a crime when there was not evidence to convict.
Regarding the transcripts, the judge withheld his decision until he can review them himself privately. He will issue a written decision later.
Moss’ sister Maria Wrafter and her daughter, Caroline, were in court Thursday. After waiting more than two years to see Ballowe charged in her brother’s death, Wrafter still sounded hopeful.
“The ultimate role for the judge is to see that justice is administered,” she said. “Let’s not lose sight of the fact that a man was left by the side of the road, badly injured, while she sped off home and sat there while he was still alive. She didn’t call an ambulance, she didn’t call police.
“Let’s not forget that.”