Buffalo, N.Y. (WIVB) – Whether the assault case against Molly’s Pub manager Jeffrey Basil will move forward is a decision that now lies in hands of an Erie County grand jury.
Basil remains jailed on $250,000 bond following a felony hearing Friday, that featured compelling testimony from witnesses, including Buffalo Police Officer Adam O’Shei.
A major issue that arose during that hearing is whether the evidence in the case supports the first-degree assault charge that’s been lodged against Basil, or whether, as Basil’s defense attorney argues, it does not rise above the level of second-degree assault, which is a lesser charge.
“We don’t believe the proof will measure up to establishing depraved indifference,” defense attorney Joel Daniels told reporters following the hearing.
The difference has to do with the defendant’s state of mind.
“For assault one, it’s depraved indifference. And for assault two, it’s recklessness. And there’s a difference there. Recklessness is more of a conscious disregard, and depraved indifference is a step further than that,” explained News 4 legal analyst Nick Romano, a defense attorney with the firm of Connors and Vilardo who is not affiliated with the case.
“Here, we have somebody pushing somebody down a flight of stairs. Now, depending upon some circumstances, you could say that that’s evincing a depraved indifference,” countered retired Erie County District Attorney Frank Clark. “I can see how a jury could see that pushing an otherwise defenseless person down a flight of stairs could easily result in his death. So that’s where The People are hanging their hats.”
Clark says it’s a risky argument for the prosecution, but establishing whether victim Bill Sager was intoxicated could help support the higher charge.
“To my mind, I’d argue to the jury [Sager]’s defenseless. He’s unable to take care of himself; he certainly can’t fend off a push down the stairs, to where in some way, he could break his fall or something. He’s just falling flat down those stairs,” said Clark.
Being intoxicated may be Basil’s defense, but Romano says it’s unlikely that will be enough to dismiss the charges.
“Voluntary intoxication… can bring down that state of mind. It can bring down a criminal charge. To completely nullify a charge, or completely find someone to be not liable for that charge, it would be to rise to level of mania. I don’t see that being the case here,” Romano said.
Part of the evidence in this case is video from the scene. But even video recordings are not necessarily damning, Romano said.
“It takes things out of context. We don’t know what happened before the video; we don’t know what happened after any potential video in this case. So sometimes, there needs to be some context brought to the forefront with the video, to know what’s going on,” he explained.
That’s where witness testimony is likely to play a key role. In particular, Clark called attention to Police Officer Adam O’Shei’s testimony that he saw Basil push Sager with “a full two-handed extension.”
“The one that’s the killer is the statement of Officer O’Shei that he saw [Basil] two-handed push [Sager] down those stairs. That’s the prosecutor’s sword, and that’s what he’s going to rely on,” Clark said. “That shows depraved indifference.
If a grand jury rules there is sufficient evidence to formally indict Basil, that indictment would bring the case a step closer to trial.