Jeffrey J. Basil’s attorney got a subpoena Friday for a suspended Buffalo police officer to testify at the former Mollys Pub manager’s upcoming murder trial in the death of bar patron William C. Sager Jr. more than two months after he was pushed down the stairs at the bar.
State Supreme Court Justice Penny M. Wolfgang signed the subpoena for Officer Robert E. Eloff at the request of defense attorney Joel L. Daniels following a hearing.
But she reserved decision on the attorney’s motion to let Eloff testify with immunity about what happened May 11 at the Main Street bar, including a 21-minute delay in Eloff calling 911 after Sager suffered a devastating brain injury – a delay that Daniels contends may have contributed to his death.
Daniels noted that Eloff refused to testify at a May 23 City Court hearing in the case, invoking his Fifth Amendment right against self-incrimination.
He said the officer probably would do so again if called to testify at trial unless he is granted immunity.
Even if Eloff is not granted immunity, Daniels asked that the defense be allowed to question him in front of the jury when the case goes to trial Jan. 5.
Assistant District Attorney Christopher J. Belling opposed the motion, noting that under state law, the court can grant immunity to a witness at trial only when the district attorney requests it.
In this case, Belling said District Attorney Frank A. Sedita III has not requested immunity for Eloff, who Belling said may face possible state and federal charges in connection with the case.
Basil, 36, of Amherst, is charged with second-degree murder, first-degree manslaughter and tampering with evidence in the July 31 death of Sager, 28, a New York Air National Guard crew chief who was engaged to be married this year.
Authorities initially said Eloff was off duty, working security with another off-duty officer, Adam E. O’Shei, outside the University Heights bar when Basil allegedly gave Sager a two-handed push down the stairs.
But Daniels said Friday it was not clear whether Eloff was working security or was just a patron that night.
Both officers were suspended following the incident, pending the outcome of an investigation by the Buffalo Police Department’s Internal Affairs Division into their conduct that night.
Daniels said Sager was unconscious on the bar floor after he went down the stairs, and he was carried out of the bar and onto the sidewalk where Eloff placed handcuffs on him and called the 911 emergency number 21 minutes after Sager was injured.
He also said Eloff was with Basil and O’Shei when they went into the bar’s basement office where the surveillance equipment was kept.
Basil is accused of removing the bar surveillance video and disposing of it in a trash bin behind Mollys so that it could not be used as evidence against him. The video was reportedly recovered.
After police arrived at the scene, Daniels said, an officer asked Eloff what happened, and Eloff told him there was an altercation and somebody fell down the stairs.
The officer then asked him if there was video of the incident, Daniels said, and Eloff told him he didn’t know.
Daniels asked the judge to exercise her discretion and grant Eloff immunity so he can testify even though the district attorney has not requested immunity. The defense attorney said it is one of the rare cases where such action is allowed.
Belling said that in granting immunity, the court must determine whether the testimony is relevant, exculpatory and not available from any other source.
He said Eloff’s testimony isn’t needed on the question of when he called 911, saying O’Shei and 911 records could establish the time of the call.
He said O’Shei and other witnesses could testify about how O’Shei and others carried Sager out of the bar. He also said O’Shei could testify about what happened when he, Eloff and Basil went to the basement office.
Daniels said fairness demands that Eloff be granted immunity, noting that O’Shei testified with immunity at the City Court hearing and before the grand jury.
The judge denied a prosecution motion to bar any testimony about possible causes of death other than the autopsy finding that Sager’s death was due to a skull fracture suffered when his head hit the floor.
Belling dismissed what he called defense speculation that the moving of Sager’s body and the 21-minute delay in calling 911 played a roll in the death.
Daniels said the delay in calling 911 and getting medical help for Sager was inexcusable, saying the victim was unconscious and needed immediate care for his brain injury.
He also said both Eloff and O’Shei should have known that a person who just suffered a serious head injury should not be moved, noting that Buffalo police officers are trained as first responders.
The judge also denied a defense motion to hold a hearing on whether a prosecution expert, University at Buffalo Physics Professor William Kinney, can testify at trial about the amount of force used to push Sager down the stairs and the speed at which he came down.