Share this article

print logo

Assault trial again aborted over errors

On Nov. 23, 2004, David Cain and David Cain Jr. were accused of attacking two federal marshals and two other police officers who went to their Niagara County home to serve a warrant on them.

The marshals and officers insisted the Cains assaulted them. The Cains denied it, refusing to plead guilty.

Normally, such a matter would result in a jury trial, but it now appears a jury won't decide this case.

On Dec. 14, for the second time, a trial on the case before U.S. District Judge Richard J. Arcara was aborted because of an error made by a federal prosecutor.

Court officials said the trial had gone on for six days when Arcara dismissed the assault charges against the Cains. The judge said Assistant U.S. Attorney Anthony M. Bruce failed to use the proper wording on documents charging the Cains.

"The prosecutor failed to put in his indictment that the defendants were accused of using force against the marshals, and that was an essential element of the criminal charge," said Angelo Musitano, Cain Jr.'s attorney.

In June, Arcara had declared a mistrial in the same case after learning that Bruce had failed, before the trial, to give defense attorneys some information.

In both instances, the errors cost taxpayers money for the wasted time of court staffers, witnesses and jurors.

Bruce declined to comment on his handling of the cases, except to say he has not yet decided whether to try to refile the assault charges against the two Somerset residents.

Cain Jr., 36, operator of a Niagara County tree-cutting service, is in jail and still faces a major racketeering case. Federal agents accuse him of a series of arsons and large-scale vandalism, most directed at business competitors. He also is accused of torching the private car of a Niagara County Sheriff's deputy. He has pleaded not guilty.

"We're going to litigate the racketeering case, and assess the situation involving the attack on the marshals after that," Bruce said.

The elder Cain, 58, was not indicted in the racketeering case and does not face any other charges.

e-mail: dherbeck@buffnews.com

There are no comments - be the first to comment