While several legal issues still hover over the continuing Jeffrey J. Basil murder case, local defense attorneys and law enforcement sources say it’s highly possible that the two sides could work out a plea agreement in the fatal incident at Molly’s Pub.
Basil, 36, of Amherst, the manager at Molly’s, was convicted of second-degree murder in January after having pushed William C. Sager Jr. down the stairs of the Main Street bar in University Heights on May 11, 2014, causing a skull fracture that led to his death July 31. Sager, an Air National Guardsman, was 28.
However, on May 5, State Supreme Court Justice Penny M. Wolfgang set aside the verdict, citing the prejudicial conduct of one of the jurors.
It is still unclear whether Erie County District Attorney Frank A. Sedita III will appeal Wolfgang’s ruling before the next scheduled court date, June 9.
“We haven’t made our decision,” Sedita said. “My Appeals Bureau is conducting more research.”
Referring to the court date, the district attorney added, “We’ll have a decision by then.”
If Sedita decides not to appeal, or if he appeals and loses, that would set the stage for a new trial for Basil – unless the two sides can come to a plea agreement.
Neither Sedita nor defense attorney Joel L. Daniels would tip his hand on that point.
“We can’t rule out a plea,” Daniels said. “We just have to wait and see.”
Sedita wouldn’t even go that far. “I will neither confirm nor deny nor comment on plea negotiations for one simple reason: I am ethically barred from doing so,” he said.
While there is no such restriction on others in the criminal-justice system who aren’t involved in the Basil case, several usually talkative defense attorneys didn’t want their names used in this highly charged case.
Discussions with five of Buffalo’s leading defense attorneys and two top local law enforcement officials suggest that in this case, a plea agreement almost makes too much sense for it not to happen.
A second trial would create possible problems for both sides. “Plea bargaining limits risk for both sides,” said defense attorney Thomas H. Burton. “Would a plea bargain here be surprising? The answer is no. … One would think there might be room here to resolve this with a plea.”
Another local defense attorney, who would not be quoted by name, said a new trial would be a calculated risk for both the prosecution and the defense, adding, “A plea bargain in this case, I believe, is a sensible way to avoid a worse outcome for either side.”
Still another said that while he thinks the district attorney should consider a plea deal, he’s not optimistic that the prosecution will make such an offer. “But if there is,” he said, “I think any responsible defense attorney would have to consider a plea agreement.”
The potential for a plea deal comes from a strong belief in the local legal community that the facts of the case seem to more closely fit the charge of first-degree manslaughter, or “man-1” for short.
In simplest terms, second-degree murder in New York State applies when a person intentionally causes the death of another person. First-degree manslaughter involves a person who intends to cause serious physical injury but instead causes death. And second-degree manslaughter applies when a person “recklessly” causes the other one’s death.
Without getting into complex legal arguments, the fact that Basil was intoxicated when he pushed Sager down the stairs to his eventual death suggests that first-degree manslaughter could be the most appropriate outcome, several attorneys said.
“I think in terms of the facts of this case, many defense attorneys and prosecutors have looked at it and thought it was a manslaughter,” said Thomas J. Eoannou, another prominent local defense attorney.
The question, he added, is whether a person, in shoving someone down a flight of stairs, intended to kill that person. “It’s difficult to establish, beyond a reasonable doubt, that Basil intentionally meant to kill him,” Eoannou said.
Burton, the defense attorney who also is a former prosecutor and police officer, believes that based on what he has seen and read about the case, the facts seem to point toward the definition of first- or second-degree manslaughter, or even a lower charge of criminally negligent homicide.
Asked where the range of middle-ground outcomes might be in this case, Burton said, “It would seem that the range has got a ‘manslaughter’ in it. The rub: Is it a ‘man-1’ or ‘man-2?’ ”
“I think it’s fair to say that murder-2 was a surprisingly good outcome for the district attorney,” Burton added.
Another defense attorney called first-degree manslaughter a reasonable end result under the circumstances.
“Any time you have a room full of intoxicated people, you have to consider that in any crime where intent is an element,” that attorney said.
On the other side of the legal aisle, one top law enforcement official with a reputation for being tough on crime bluntly asked, “How did they ever convict this guy of murder?”
When defense attorneys who followed the case closely were asked to explain the second-degree murder conviction against Basil, a consensus seemed to emerge that the bar manager’s actions after the attack contributed to his problems with the jury. Those actions included removing the bar’s digital video recording system and displaying a courtroom attitude that left various trial observers calling him unpleasant names.
“If you want a jury to give you a break, you have to earn it,” one veteran defense attorney said, attributing the jury’s verdict partly to the negative impression that Basil apparently left with jurors.
“They hated him,” he said. “That’s what happened.”
“Jurors are human,” Burton said. “It’s impossible to ignore boorish behavior … as seen at the first trial.”
The defense attorneys, some even on condition of anonymity, seemed reluctant to predict whether Sedita might offer a plea agreement in this case, if he either doesn’t appeal Wolfgang’s decision or if such an appeal fails.
Among the factors both sides would have to weigh, these attorneys said, are the feelings about a possibly successful appeal of the original verdict; the odds of Sedita’s office winning another murder conviction; the chance that Basil’s attorneys could employ a different strategy during a new trial; the possible prison sentence both sides might agree to recommend, within sentencing guidelines, under a plea deal; and the feelings of the Sager family about enduring another trial versus going along with a plea agreement.