The murder conviction against Jeffrey J. Basil was set aside Tuesday and a new trial was ordered, based on the fact that “one particular juror’s conduct was so prejudicial that it tainted the entire process.”
That is what State Supreme Court Justice Penny M. Wolfgang ruled as she granted defense attorney Paul J. Cambria’s motion to vacate the jury verdict against the former Molly’s Pub manager convicted of murdering William C. Sager Jr., a bar patron and Air National Guardsman.
One juror had concealed her military service and arrest record during jury selection.
The jury convicted Basil, 36, of second-degree intentional murder for launching Sager, 28, down the stairs at the University Heights bar last May 11, causing a skull fracture that left him in a coma and led to his death July 31 at Erie County Medical Center.
But with that verdict now set aside, Cambria said a new trial will be scheduled on the original charges of murder and manslaughter.
The judge will meet with the prosecution and defense attorneys June 9 to discuss the next step in the case. Cambria said a trial date may be set at that meeting.
District Attorney Frank A. Sedita III indicated he hasn’t decided whether his office will appeal the judge’s decision or retry the case.
Sedita said he didn’t expect to file criminal charges against the juror.
“I feel badly for Juror No. 12 ... This juror has now been repeatedly called a liar, over and over again, by a judge,” he said.
Cambria contended that the juror’s service in the Air Force Reserve from 1999 to 2001 biased her in favor of Sager, a crew chief in the Air National Guard who served in Afghanistan and was engaged to be married, and against Basil.
He said the juror showed her bias toward Sager in an interview with Channel 7 the day after the verdict.
During the interview, the juror indicated that she was especially affected by the testimony of one of Sager’s military friends, Matthew Baird, who attended to the victim in the bar’s parking lot as Basil yelled at Baird and others 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.”
Cambria 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 and the fact that 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.
In her ruling, Wolfgang said the issue was 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, Wolfgang said she had admitted at an April 7 hearing on the motion to set aside the verdict that she could hear all the questions other prospective jurors were asked, including whether they had served in the military.
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.”
The judge also noted that 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 the juror’s testimony at the April hearing that she had forgotten her 1997 arrest in Florida was not credible. The judge noted that the arrest involved a felony.
She said the court and the attorneys in the Basil case were entitled to full disclosure so they could evaluate whether the juror should set 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 insure the defendant’s right to a fair trial by an impartial jury.”
Assistant District Attorney Christopher J. Belling had opposed the motion to set aside the verdict, noting that 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 record during jury selection, and the attorneys were able to question them about it to determine if they could be fair and impartial.
Belling said that the juror in question was never asked whether she had served in the military and that she had forgotten her 1997 arrest because it was so long ago and the case was never prosecuted.
In addition, at the April 7 hearing on the motion, the juror testified that she was one of three who voted against convicting Basil of murder when the 12 jurors took their first ballot during deliberations, but the three eventually joined the other nine jurors in voting to convict him. She said her military service and arrest record played no role in her decision to find Basil guilty of murder.
The juror also testified that she became emotional over Baird’s testimony about never leaving a wingman behind, not because of her military service, but because Belling had tears in his eyes when he recalled that testimony in his closing argument to the jury.
She acknowledged that before she was questioned during jury selection, she had heard other prospective jurors being questioned about whether they had served in the military.
But she said that when it came time for her to be questioned, she did not reveal her military service because neither the prosecutors nor the defense attorneys asked whether she had served.
News Staff Reporter Gene Warner contributed to this story.