Gabriele Ballowe’s defense attorney will ask a judge to give him transcripts from the first grand jury that voted to indict her in 2014 and then revoted not to indict at the request of a top aide in the Erie County district attorney’s office.
Attorney Thomas J. Eoannou wants to get the indictment handed up Tuesday against Ballowe dismissed. In order to do that, he said he needs information from the 2014 grand jury proceeding to determine if the DA’s office acted properly when it obtained the new indictment against Ballowe.
Ballowe, 50, is accused of hitting and fatally injuring Barry Moss, an Evans handyman, with her sport utility vehicle in December 2013, and then driving away without contacting police. She pleaded not guilty Tuesday to felony charges of leaving the scene of a fatal accident without reporting it and vehicular manslaughter.
While prosecutors say the new indictment is based on new evidence they didn’t have in 2014, Eoannou said he needs to look at grand jury records from 2014 to determine if that is true. He plans to ask State Supreme Court Judge Christopher J. Burns, who is now handling the case, to let him see those records.
“We’re certainly going to request the grand jury minutes, the transcripts,” Eoannou told The Buffalo News. “We want to know what the witnesses said to the grand jury. We want to know what the prosecutor said, and who the prosecutor was...I strongly believe it was Michael Flaherty, the current DA.”
Eoannou added that he wants the 2014 grand jury transcripts “in the interest in due process for my client, and in the interest of the public’s confidence of how and why people are indicted in this town. We had a rare circumstance in which a DA asked the grand jury” not to indict Ballowe, “and then, two years later, apparently the same DA asked a new grand jury for an indictment.”
Acting District Attorney Michael J. Flaherty Jr. said he disagrees with Eoannou’s view that the defense is entitled to the 2014 grand jury records.
“We will oppose it...What happened two years ago is irrelevant to what is happening today,” Flaherty said. “The indictment the grand jury voted on in 2016 is what is important. What happened in 2014 is totally irrelevant...I’m confident that we not only have a sufficient case, but a provable, strong case.”
He added that, under normal procedures, Eoannou would get copies of witness statements shortly before the trial.
Eoannou said he wants the 2014 grand jury records much sooner, so he can challenge the validity of the new indictment.
Flaherty said he has refused to answer questions about whether he played any role in the 2014 grand jury proceedings because of grand jury secrecy rules. Those rules are in place, Flaherty said, to protect witnesses from threats or harassment.
“If Mr. Flaherty was not the DA who went in and talked to the grand jury in 2014, he should simply come out and say it,” Eoannou said.
Three area defense attorneys - Terrence M. Connors, Florina Altshiler and Kevin W. Spitler - said they, too, would ask a judge for the 2014 grand jury minutes if they were defending Ballowe.
“Normally, grand jury records are kept secret, but I think Tom Eoannou can make a strong argument that he needs this information in order to attack the validity of the indictment,” Altshiler said.
Connors and Spitler, immediate past president of the Erie County Bar Association, also said they think Eoannou can make a good argument for the records.
The defense attorney for Ballowe’s co-defendant also wants access to the first grand jury transcripts.
“My client is charged with perjury, a charge she denies,” Robert E. Lee said of Lynne Laettner, 55, of Hamburg. “I’ve never seen her written statement to police, or the statement that she gave to the grand jury in 2014...I think I should be entitled to see those statements in order to defend my client.”
Laettner is accused of perjury, and the prosecutor pointed to developments involving Laettner as the new evidence that allowed the district attorney’s office to open a new grand jury investigation into the fatal hit and run.
The new indictment alleges that Laettner lied to a grand jury in April 2014.
Laettner was with Ballowe on the day after the accident, Lee said, when Ballowe drove her damaged SUV about 20 miles from Angola to a Dunkirk collision shop where she had it repaired.
Lee said that Ballowe took the vehicle to Dunkirk because a family friend owns a collision shop there, and she felt more comfortable taking it there.
Ballowe, former owner of an Angola waterfront bar, has been the prime suspect of Evans Police since Dec. 22, 2013, when Moss, 52, was struck by a hit-run driver and left to die off Route 5 not far from his Evans home.
Police found pieces of Ballowe’s SUV at the accident scene, impounded the vehicle and found traces of Moss’s DNA on the vehicle.
Ballowe has steadfastly refused to answer any police questions about the incident, even after she paid money to settle a wrongful-death lawsuit Moss’s family filed last year.
The case took a highly unusual turn in May 2014, when a grand jury voted to indict Ballowe and then-DA Frank A. Sedita III ordered an aide to persuade the jury to take a second vote and rescind its indictment. The grand jury agreed to take a second vote, and this time, did not indict Ballowe.
If Ballowe’s case goes to trial, Eoannou said that he “absolutely” plans to raise questions about Moss’ intoxication at the time of the accident. Moss was killed by “multiple blunt force injuries,” according to an Erie County Medical Examiner’s report, but “acute ethanol intoxication” was listed as a contributing factor. His blood alcohol content was measured at 0.46 percent, more than five times higher than the state’s legal standard for driving while intoxicated.
“It will become an issue in this case, raisinq questions about what caused the accident and what caused the death,” Eoannou said. “This is an incredibly high level of intoxication. Was this man lying on the street? Did he stumble across the street? Did he stumble into the vehicle that hit him?”
While not discussing that issue in detail, Flaherty responded: “We plan to offer evidence that she caused the accident, not him.”
No trial date has been set, but Spitler said he would be “shocked” if the case is ready for trial before the Democratic primary in September, when Flaherty faces two opponents. The general election is Nov. 8, and court experts say it is appears unlikely the trial will begin before then.
Based on his 35 years of experience in the courts and on the extensive pretrial issues at play, Spitler said, “I’d be very surprised” if the Ballowe case was ready for trial in less than nine months.