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Present, past converge as Flaherty faces political fallout over hit-run case

The 2016 race for district attorney may very well have unfolded in large measure Tuesday in an Erie County courtroom.

No sooner had Michael J. Flaherty Jr.’s prosecutors obtained a felony vehicular manslaughter indictment against Gabriele Ballowe in a hit-and-run case that a grand jury initially probed in 2014, then the acting district attorney’s opponents pounced with questions about his personal involvement.

Now, the case surrounding the death of Evans handyman Barry T. Moss appears to loom as the central issue of this year’s campaign for district attorney while reviving lingering accusations that politics has driven the actions of the District Attorney’s Office for many years.

Flaherty said Tuesday that he is seeking justice for the Moss family, refuses to “politicize” the case, and will continue to avoid answering questions posed by his opponents in the primary and general elections.

[Related: 30 months later, Ballowe indicted in fatal hit-and-run]

Nevertheless, questions remain, including:

• Was Flaherty the prosecutor who asked a 2014 grand jury to reverse its original vote to indict Ballowe?

• Would such action complicate his new efforts to obtain a conviction in Moss’ death?

• Did Flaherty seek a new indictment for political purposes, as some now allege?

• Will the case be resolved in time for the three-way Democratic primary election for district attorney in September?

• Does Flaherty have an obligation to address the questions in the context of a campaign for district attorney?

• Are Flaherty’s critics impairing Ballowe’s prosecution for their own political purposes?

[Related: DA's office accused of stopping indictment in fatal Evans hit-and-run]

Mark A. Sacha, the former assistant district attorney who first accused Flaherty of now wanting to reverse the “no bill” he sought from the grand jury in 2014, wasted no time Tuesday in raising the questions. He reiterated his accusation that Flaherty, at the behest of then-District Attorney Frank A. Sedita III, asked a 2014 grand jury to reverse its own decision to indict Ballowe because of the challenges posed in obtaining a conviction.

“I am happy for the Moss family that justice may be done here,” Sacha said, “but it is clear to me that in the original grand jury, the District Attorney’s Office squashed the indictment. Now the person who caused the original injustice is allowed to be involved in the present grand jury.”

Democrat Sacha also said that after persuading the 2014 grand jury to reverse its original vote to indict Ballowe, Flaherty now seeks a different course as the September primary looms. “He did it for political purposes and that’s wrong,” Sacha said.

The third Democratic candidate, John J. Flynn Jr., expressed much of the same sentiment. The endorsed Democrat who also has Conservative backing, Flynn questioned why it has taken two years for prosecutors to take Tuesday’s action and if Flaherty has now reversed his original course.

“How this matter was handled in the past by Mr. Flaherty is relevant for voters to consider,” Flynn said in a statement. “Mr. Flaherty should tell the public if he was the individual who influenced the grand jury to change their minds. A ‘no comment’ from Flaherty is no longer acceptable as the original 2014 grand jury proceedings will most likely be a part of this case.”

The Republican/Conservative candidate for district attorney, Joseph V. Treanor III, echoed the Democratic concerns, although he emphasized he has no knowledge of Flaherty’s 2014 grand jury actions. Still, Treanor called it “totally unacceptable” that it took so long to obtain an indictment while labeling as “very troubling” the questions raised by Sacha.

“I have no reason to disbelieve Mr. Sacha’s allegations,” Treanor said. “And if Mark has information that I don’t and it’s true, absolutely that’s very troubling. I can’t imagine he would say what he has on a whim.”

He also said he expects Ballowe’s defense attorneys will pursue exactly what happened in the first grand jury, and that Flaherty’s role will loom as a major issue in the race for district attorney.

Flaherty said he does not expect his grand jury role to figure in Ballowe’s defense. He again declined to answer about the grand jury vote reversal in 2014, and dismissed the legitimacy of the questions his opponents now pose.

“They are not legitimate because they are politicizing this,” Flaherty said. “I promised the Moss family I would not politicize this. If anyone tries to politicize justice, he has no business being DA. I’ll let my opponents launch their own tactics, and whatever the party bosses come up with. I’m just doing my job.”

He is now contending, however, that he sought the new indictment because of “new evidence.”

Still, Sacha alleged Tuesday that Flaherty “tampered” with the original grand jury after receiving information from credible sources familiar with the situation. He called such action “illegal,” and added that the acting district attorney’s latest action stems from the political advantages that might accrue from now reversing his previous mistake.

In addition, he noted that although Flaherty has been asked previously whether he sought reversal of the original grand jury decision to indict, he has since not only failed to answer the question, but has also failed to deny it.

Sacha is also now asking if the judge who empaneled the 2014 grand jury is the same judge presiding over the new grand jury. The judge is not publicly identified because grand jury proceedings are secret.

“I don’t understand why the empaneling judge didn’t make any inquiries about the integrity of the grand jury in this case,” he said. “There was a responsibility to do that. And is it the same judge that empaneled the original grand jury?”

Sacha said the question is important because it is possible “the system did not protect the grand jury.”

“They’re acting very arrogantly about something they caused,” he said.

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