A State Supreme Court justice came down on the side of Erie County prosecutors Tuesday morning, rejecting defense motions to see all testimony and instructions from two grand juries that heard evidence in the Gabriele Ballowe fatal hit-and-run case.
Ballowe’s defense attorney wanted to see the transcripts from a grand jury in 2014 that originally voted to charge Ballowe but changed its vote after a representative from the DA’s office asked the jury to reconsider.
After reading the transcripts, Justice Christopher J. Burns rejected speculation that prosecutors mishandled instructions to the first grand jury, saying there was no evidence to support the accusations.
“Shortly after the Grand Jury returned a vote to indict Defendant Ballowe, but prior to the indictment being reported to the Court, prosecutors returned to the grand jury and provided additional instructions which were stenographically recorded,” Burns wrote in his decision released Tuesday.
A footnote to that passage stated: “The record does not support the allegation that a lengthy off-the-record conversation was had with the Grand Jury by the prosecution or anyone representing the District Attorney’s Office.”
The judge also removed from the arguments any issues, criticism or news reports involving former District Attorney Frank A. Sedita III and his handling of the Ballowe case two years ago, when she was not charged.
“The articles and reports as well as the comments of then-District Attorney Sedita are not relevant to the legal inquiry of this Court,” Burns wrote. “This Court will not speculate as to the motives of the previous District Attorney nor adopt the views of either party with regard to those motives.”
His focus, the judge wrote, was the legality of the current felony indictment, which resulted from a grand jury this year after prosecutors found a new witness, and whether the defense arguments justified giving the attorney access to material from the first grand jury, which is by law confidential.
In all cases, defense attorneys receive copies of witness testimony from the grand juries that vote to charge their clients.
Burns’s decision to deny the defense request for transcripts from the first grand jury is based on protecting grand jury confidentiality. Burns acknowledged that the sequence of events in this case is unusual, but concluded “the unusual circumstances ... do not impact the fairness or due process rights of the defendant, nor does the court believe that the release of the materials would somehow enable the defense to craft further due process arguments.”
Ballowe’s attorney Thomas J. Eoannou said only that his side will continue to pursue options.
Acting District Attorney Michael J. Flaherty praised the judge for review of the arguments.
“We are ready for trial and look forward to moving forward with the case,” he said.
He characterized the defense motions to reveal supposedly incriminating grand jury minutes as a deliberate distraction from the question of whether a highly intoxicated Gabriele Ballowe knew that she had struck a person with her SUV the night of Dec. 22, 2013, and whether she deliberately drove away without stopping to render aid to the victim calling for help or reporting the collision. The body of Angola handyman Barry T. Moss was found on the roadside the next morning.
“Everything that happened in 2014 and in 2016 (with the grand jury) was both legally and ethically appropriate,” Flaherty said.
He said that, once prosecutors heard witness testimony in the first grand jury that contradicted their case – testimony that turned out to be false – they were obligated to ask for the second vote.
“It’s part of our obligation as legal advisors to the grand jury,” Flaherty said. He also said it is not as unusual as people might think. “Every time we do this it is to protect the rights of the accused.”
The court set a trial date of Oct. 17.