DA explains why there are no charges in fatal hit-and-run

BUFFALO, N.Y. (WIVB) – Barry Moss was struck by a vehicle and killed in December and his body was found along Route 5. A 2013 Ford Explorer, owned by Gabriele Ballowe, is the vehicle Evans Police are certain hit Moss, ending his life. But they did not make an arrest in the case.

Last month, an Erie County grand jury determined there is not enough evidence to prove who is responsible for the hit-and-run accident.

Maria Wrafter, Moss’ sister, said, “It is really hard. My brother has three grown daughters and they don’t understand how somebody could get away with this, and I don’t know how to explain it to them, as an adult in the family.”

Ballowe was a person of interest in the case, but after three weeks of reviewing evidence, a grand jury determined there is not enough evidence to prove who was behind the wheel and whether or not that person knew he or she struck Moss.

“If there is somebody out there who knows something, find it in your heart to come forward. Maybe you thought we had it all wrapped up before, but we don’t,” Wrafter said.

If you have any information you can call 867-7171 or Evans Police at 549-3600.

Frank Sedita sent this statement in response to an inquiry from the Buffalo News, last week, which suggested a grand jury was going to indict a suspect but was asked to reconsider, leading to no charges:

“I think one of the dynamics driving this “controversy” is the assumption that proof of operation (the suspect driving vehicle at the time of the impact) is enough to prove a crime was committed. That, however, is not what the law requires. Contrary to some people might think or believe or feel, Leaving the Scene and Vehicular Manslaughter require proof beyond the fact that the suspect was behind the wheel. In other words, being behind the wheel, in and of itself, is not enough to prove Leaving the Scene and Vehicular Manslaughter.

Every statutorily defined criminal offense (i.e. a crime) has a number of elements. In order for someone to be prosecuted for a crime, there must be proof of each and every element of that crime. I realize most of your readers are not attorneys, so I will do my best to explain what this means in non-legalese.

Leaving the Scene requires proof of operation; i.e. that the suspect was, in fact, driving when the collision occurred. This is just the starting point. In order to support the charge, there also must be proof–not suspicion or gossip but proof–that the driver contemporaneously (i.e. at the time of impact as opposed to some later time) knew she hit a person and proof that the driver knew she caused injury or death to that person and proof that the driver, armed with such knowledge, made the conscious decision to flee the scene and not notify the proper authorities.

Vehicular Manslaughter also requires proof of operation. Again, this is just the starting point. In order to support the charge, there also must be proof–not suspicion or gossip but proof—that the driver was intoxicated at the time of the impact and proof that the driver’s intoxication was the cause of the victim’s death.

Intoxication is typically proven with some combination of the following: observations of the suspect’s erratic driving; observations of the defendant by a trained officer; field sobriety tests; and, a BAC test score of .08 or above. In the absence of such evidence, it is extremely difficult, if not impossible, to prove intoxication.

Assuming one could prove operation and prove intoxication (as opposed to impairment or having some drinks at a bar), one must also prove causation to support a Vehicular Manslaughter charge; i.e. the defendant’s intoxication was the cause of the impact. In other words, had the driver been sober, she would not have struck and killed the victim. Evidence that the victim was effectively invisible to a sober driver (because of darkness and dark clothing, for example), darted out into the middle of the road, and/or was extremely intoxicated himself, undermines causation.

You asked me why this case was directly presented to a grand jury, as opposed to the defendant being arrested by the police. This raises another common misperception about the legal system.

Most people think of the grand jury as a “rubber stamp” in the criminal justice system. In other words, indictment by a grand jury is a formality in the process that starts with the arrest (an accusation made by the police) and results in a prosecution. Indeed, someone claimed that in the hands of a certain kind of prosecutor, a grand jury could indict a ham sandwich.

I’m not that kind of prosecutor.

The idea of a grand jury goes back to medieval England and was envisioned as a check on the power of the Crown. In the modern era, a grand jury exists for that purpose, as well as another: to conduct an investigation.

In this case, the police investigation did not produce enough evidence to prove either Leaving the Scene or Vehicular Manslaughter. That was not the fault of the police. There are no known eyewitnesses, other than the driver. The suspected driver exercised her 5th and 6th Amendment rights and declined to be questioned. Several of the suspect’s friends also refused to speak to the police.

The grand jury is the only body that can compel cooperation in a criminal investigation. The police cannot but the grand jury can. That’s why we convened it. Although we dared not compel the suspect to testify (because that would confer immunity upon her), we had the power to compel witnesses we believed might have evidence but were holding back. In other words, we didn’t convene a grand jury to bury a case, we convened a grand jury in an effort to make a case.

You also asked about the testimony before the grand jury and the legal charge to the grand jury. I cannot directly answer those questions because to do so would constitute a felony pursuant to Penal Law 215.70. I can, however, state the following.

Regarding the proof, the prosecutors assigned to the case called many, many witnesses over the course of three weeks. They left no stone unturned in an effort to ferret out and develop a prosecutable case.

Regarding the charge, in their role as legal advisors to the grand jury, prosecutors (especially less experienced ones) typically read the law without adequately explaining it. When it becomes apparent that the law needs to be explained or elaborated upon, that’s something a prosecutor must also do.

In contrast to his role as an advocate at trial, the prosecutor is designated the legal advisor to a grand jury conducting an investigation. As such, he is under both a legal duty and an ethical duty to insure that the grand jury understands the evidence must be both legally sufficient (all the required elements must be met) and factually sufficient (with actual proof as opposed to suspicion or speculation or innuendo or gossip or unsubstantiated claims or gut feeling).

If the prosecutor suspects her legal instructions were confusing or misunderstood, she is under a legal and ethical duty to make sure the grand jury correctly understands the law. In other words, it is unlawful and unethical for a prosecutor to secure an indictment for a case she knows to be either legally insufficient or factually insufficient.

I have reviewed your questions with my prosecution team. Although grand jury secrecy laws prohibit us from going into the specifics of the presentation of evidence and the charge on the law, I can tell you that the majority of the grand jurors ultimately voted to issue a No True Bill. They were certainly not coerced nor threatened. The law–not the law I wish was on the books but the law that is on the books–was read to them and explained to them and that was their decision.

You know something else, Dan? It was the correct decision, given the facts, the lack of facts, and the law. The grand jury did not determine the suspected driver is innocent. The grand jury instead issued a No True Bill, which essentially means there is insufficient cause or insufficient evidence to bring certain charges against the suspected driver.

Had the foreman of the grand jury handed up an indictment in this case, the court would have been charged with the duty to review the minutes and would certainly have dismissed the indictment based upon the lack of legally sufficient evidence to support each and every element of the offense.

You also asked for me for my opinion regarding the suspect’s guilt. I think you know that if I felt someone was innocent I would publicly say so (e.g. Kimberly Lawton). I will not state my opinion as to the suspect’s guilt or innocence but I will state my opinion regarding the grand jury’s determination that the evidence was legally and/or factually insufficient: they were correct. I agree with it.

I understand there are strong feelings about this case. I also empathize with the anger and sense of loss held by the victim’s family, as well as the frustration felt by them, the police and maybe even some of the grand jurors. However, one cannot base a criminal prosecution on feelings or suspicion, no matter how passionately nor how genuinely held.

When my office has sufficient proof of Leaving the Scene or Vehicular Manslaughter we prosecute it to the fullest extent of the law, and rarely, if ever, offer a plea bargain. However, in the absence of sufficient proof of each and every element of an offense, it is improper to bring an indictment for that offense. I will not engineer a ham sandwich indictment in order to stick it to a suspect who won’t cooperate, nor will I do so to avoid criticism or controversy. To do otherwise might be more convenient and make me more popular but it is also unlawful and unethical and a dereliction of my sworn duties.”

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