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dictate how grand jurors view the evidence. Both the judge and the district
attorney have a duty to tell the jurors this. As a former bureau chief of the Erie
County District Attorneys grand jury bureau, I am uniquely situated to understand
the inner workings of the grand jury process.
By law, each grand juror is given a copy of Article 190 of the New York State
Criminal Procedure Law informing them of their duties.
New York Criminal Procedure Law 190.25 (5) states:
The grand jury is the exclusive judge of the facts with respect to any
matter before it.
Recently, the United States Court of Appeals, Second Circuit (756 F.3d 184 (2d
Cir. 2014) in their decision on the matter of United States v. Reed stated:
Grand Juries exist by virtue of the New York State Constitution and
the Superior Court that impanels them; they are not arms or
instruments of the District Attorney. See N.Y. Const., art. I, 6;
N.Y.Crim. Proc. 190.05
No prosecutor, no district attorney, and in fact no judge can tell a grand jury how
to vote. To do so is illegal. To do so may be a crime. Flaherty knew this. Yet he
intentionally ignored the law and violated his oath of office, thinking that his
actions would be shrouded in grand jury secrecy.
Apparently, the Moss grand jury was also intentionally mischarged as to the law.
According to the Buffalo News:
The supervisor told the grand jury that the charges they voted on
would never hold up in court, that they would either be thrown out by
a judge, or that they would lose at trial, said one source familiar
with what happened that day. Basically, he told the grand jury, We
dont have enough evidence to win the case. I need to go over the
case again with you, and we need you to change your vote.
Buffalo News, June 8, 2014
It was entirely illegal to tell the grand jury we need you to change your vote. It
was also entirely illegal to ask the grand jury to consider the trial concerns of the
Erie County District Attorneys office. The standard of proof in the grand jury is
reasonable cause, which is commonly referred to as probable cause. In
common language, is it more likely than not that the defendant committed a crime.
The standard for a trial jury is completely different. That standard is a much
higher one of beyond a reasonable doubt. It was irrelevant and illegal to ask the
grand jury to consider the higher standard.
What was really happening was that the Erie County District Attorneys office did
not want the indictment. At the same time, they wanted to blame the failure to
indict on the grand jury. The District Attorney, Frank Sedita, had the temerity to
tell the Buffalo News:
The grand jury is not a rubber stamp for what the police or a
prosecutor might think. The hard part is that you might feel in your
heart of hearts that somebody should be prosecuted, but if the grand
jury does not feel the evidence is sufficient, there will be no charges.
Buffalo News, May 16, 2014
The grand jurys decision to indict was based on a full review of the evidence and
a proper legal charge. The case had been handled by an experienced and respected
female Assistant District Attorney. This assistant district attorney specializes in
vehicular assault cases. She presented evidence to the Moss grand jury over a
number of days. The specialized prosecutor prepared extensively and had
numerous discussions with her superiors. The legal charge that she gave to the
grand jury was approved at the highest levels of the Erie County District
Attorneys office. The grand jury had all the necessary evidence and the necessary
legal instructions. The grand jury was asked to vote and they proceeded to vote an
indictment.
THE GRAND JURY VOTES, NOT THE DISTRICT ATTORNEY
Under the law, the district attorney cannot be present while the grand jury
deliberates or votes. Once the grand jury votes, that should be the end of it.
The Moss family and the grand jury have been betrayed by the Erie County
District Attorneys office. It now adds insult to injury that Flaherty refuses to
allow an independent review of his actions and those of his office. He has the
audacity to claim that he, the most culpable party, will now review the handling of
the case.
By law, the Moss case cannot be resubmitted to a grand jury without judicial
approval. Judicial approval requires a review of the case and various legal issues.
One of those issues can be improper conduct in the grand jury. Since the
perpetrator of that conduct was Mr. Flaherty, he is the last person who should be
addressing this issue.
OFFICIAL MISCONDUCT / OBSTRUCTION OF JUSTICE
Flahertys apparent misconduct in the Moss grand jury is a very serious matter.
Public servants, even prosecutors, may not abuse their positions and break the law
in order to obtain a benefit. For example, there is New York penal law crime of
Official Misconduct. Official Misconduct is laid out in 195.00
195.00 Official misconduct
A public servant is guilty of official misconduct when, with intent to
obtain a benefit or deprive another person of a benefit:
1. He commits an act relating to his office but constituting an
unauthorized exercise of his official functions, knowing that such act
is unauthorized; or
2. He knowingly refrains from performing a duty which is imposed upon
him by law or is clearly inherent in the nature of his office.
Official Misconduct is a class A misdemeanor under New York State penal law.
Attention should also be drawn to Tampering with a juror in the first degree,
215.25.
215.25 Tampering with a juror in the first degree