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An Erie County grand jury voted May 12 to indict Gabriele Ballowe on felony charges of driving while intoxicated and leaving the scene of an injury accident, following the hit-and-run incident that killed Barry “Bob” Moss late last year in Evans.

But after that vote was taken, a supervisor in the District Attorney’s Office asked the grand jury members to reconsider and take a second vote, according to knowledgeable sources close to the case. The grand jury reluctantly agreed to do so, and in the second vote that day – at the prosecutor’s strong urging – the grand jury decided to file no charges against Ballowe, these sources told The 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 don’t 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.’ ”

On that second vote, the grand jury agreed to “no bill” the case – meaning that, unless Evans police come up with new evidence, no criminal charges will be filed against Ballowe, 48, an Angola bar owner who has refused to talk to police about what happened that night.

“The grand jury wanted to indict. The DA said no,” said one of the sources who told The News about the events in the grand jury.

When The News asked District Attorney Frank J. Sedita III whether a supervising prosecutor had urged grand jurors to change their minds after voting in favor of indictments against Ballowe, he said that state laws regarding the secrecy of grand jury proceedings prohibit him from discussing details of what occurred in the grand jury.

“I can’t confirm or deny that,” Sedita said. “To do so would be a felony crime. Whoever’s telling you that is committing a felony crime.”

But the district attorney agreed with the outcome.

“I do feel the grand jury made the correct decision when it voted to no-bill this case,” he said.

The decision not to prosecute Ballowe was made despite grand jury testimony that Moss’ DNA was found on Ballowe’s sport utility vehicle, that broken parts from Ballowe’s SUV were found near Moss’ body and that Ballowe was seen getting into the driver’s seat of her SUV alone shortly before Moss was fatally injured, according to law enforcement officials.

While the District Attorney’s Office was well within its authority to request a second vote, the prosecutor’s actions have outraged the family of Moss, a 52-year-old handyman fatally injured when a vehicle hit him on Route 5 early on the morning of Dec. 22 and then left the scene.

The victim’s mother, Charlotte Moss, and his sister, Maria Wrafter, said they are especially upset because aides to Sedita had given the family the impression that they made every effort to secure indictments against Ballowe but were unable to do so because grand jurors did not feel there was enough evidence.

“It is extremely disheartening and painful news that the DA did not sincerely support an indictment,” Wrafter said.

But Sedita said that, in his view, there was insufficient evidence to support felony charges against Ballowe despite “strongly circumstantial evidence.” He said he is sympathetic to members of Moss’ family, especially because they lost a loved one three days before Christmas.

“Prosecutors and grand jurors do not take an oath to do the popular thing or the convenient thing,” Sedita said. “Instead, both take an oath to follow the law, and the law says you cannot indict someone unless there exists legally sufficient evidence.”

When asked if a prosecutor would ever ask a grand jury to reconsider after voting to indict someone, Sedita again declined to speak directly about the Ballowe case. He then said he has handled several cases in his 26-year career as a prosecutor in which grand jurors have been asked to vote twice.

“It occasionally happens when the law has not been sufficiently explained to the grand jury the first time it voted,” Sedita said. “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.”

While stating that he is legally prohibited from going into specifics, Sedita – after reviewing the case with his prosecution team – said “the majority of grand jurors” ultimately voted to no-bill the case.

“They were certainly not coerced nor threatened,” he said.

Sedita said he does not believe Evans police provided enough evidence to prove two key elements of the case – that Ballowe was driving her SUV when it hit Moss or that Ballowe knew she had hit a person before leaving the accident scene. He said an indictment cannot be based on “suspicion or gossip” and must be based on proof.

Evidence against Ballowe

Law enforcement officials with knowledge of the Moss hit-and-run fatality said the following evidence could be used to build a case against Ballowe:

• Witnesses saw her eating and drinking alcohol with four friends in a Hamburg restaurant for a couple of hours that night before she left to drive home in her SUV, a gray 2013 Ford Explorer.

• When Ballowe left the restaurant, she appeared to stumble, prompting a restaurant employee to offer to drive her home. Ballowe refused the offer, saying she would drive herself home. She was seen getting into the driver’s seat of the SUV. No one got into the vehicle with her.

• Less than a half-hour later, at around 12:15 a.m., Moss was hit and fatally injured as he walked or rode his bicycle along Route 5 near Gold Street. The timeline between when Ballowe left the restaurant and Ballowe’s SUV hit Moss “fits perfectly,” a law enforcement official said. The location where Moss was hit by the SUV is on the route between the bar where Ballowe had dinner and her home.

• Minutes after Moss was struck, another driver saw Ballowe’s SUV run through a stop sign as it turned onto Old Lake Shore Road, not far from the location where Moss was hit. The other driver’s car was cut off and nearly run off the road by Ballowe’s SUV. The other driver noticed that Ballowe’s SUV had damage to the front end. The other driver then saw Ballowe’s SUV pull into the parking lot outside the South Shore Beach Club. Ballowe is co-owner of the beach club and lives in the same building. The other driver never saw who was driving Ballowe’s SUV.

• Investigators questioned Ballowe’s family and learned that all other members of her family were elsewhere that night and could not have been driving the SUV when it hit Moss.

• Ballowe has never reported her SUV as stolen or claimed that someone else was driving it that night. She has refused to answer questions from police about the events of that night.

• Evidence technicians from the Erie County Central Police Services found Moss’ DNA on Ballowe’s SUV, and several parts that broke off from Ballowe’s SUV were found at the site of the fatal hit-and-run.

• A day after Moss was killed, Ballowe arranged to have her damaged SUV repaired at a collision shop in Dunkirk, 20 miles away, rather than taking it to one of many collision shops located much closer to her home.

Authorities confirmed one other piece of information that was presented to the grand jury: Moss, who had been drinking with friends that night in an apartment near the accident scene, was intoxicated when the SUV hit him.

Moss was on his way home when he was struck. The alcohol content of his blood was tested after the fatality.

Ballowe’s attorney, Thomas J. Eoannou, declined to comment on the grand jury situation. He has stated repeatedly that he advised Ballowe to exercise her right to decline to talk to police about her actions that night. He has declined to say whether Ballowe or someone else was driving the SUV. Eoannou also said he agrees with the grand jury’s decision to no-bill the case.

Evans Police Chief Ernest P. Masullo said he is convinced that his officers did an “excellent” job of investigating the hit-and-run accident and believes they turned up more than enough evidence to indict Ballowe.

While he said he strongly disagrees with the outcome of the case, Masullo said he has known and worked with Sedita for decades and respects the district attorney.

“I’m sick to my stomach over this. We did our jobs. We know we had a good case,” Masullo said. “I did talk to Frank after the no-bill in the grand jury. Frank said he felt there were two elements he could not prove – that she was driving when the vehicle hit Moss and that she knew she had hit him. He’s the prosecutor. We’re not the prosecutors.”

Masullo and Detective Lt. Douglas Czora said they find it hard to believe that any motorist could hit a man Moss’ size – he was 185 pounds – and not realize it. Moss’ family agrees, and they are not alone.

In the months after the accident, more than 100 Evans residents have posted lawn signs or decals on their cars, asking “Justice for Barry Moss.” There have been several public demonstrations across the street from Ballowe’s bar, the South Shore Beach Club. Many residents have used Facebook or The Buffalo News website to raise questions and voice complaints about why Ballowe has not been charged.

All this was in the background as Sedita’s office began its presentation to the grand jury in April.

Legal experts are puzzled

The News interviewed three lawyers with extensive grand jury experience about Sedita’s handling of the case: Dennis C. Vacco, former state attorney general, former U.S. attorney and former grand jury bureau chief of the Erie County DA’s office; Michael T. Kelly, a defense attorney who was a criminal prosecutor for Erie County and the state for more than 30 years; and Todd A. Spodek, a defense lawyer in New York City.

All three said they were puzzled by the strategy of asking a grand jury to vote on criminal indictments and then asking the same grand jury to vote a second time to no-bill a case.

Vacco said it is challenging but not impossible to build a case on mostly circumstantial evidence.

“Yes, a circumstantial case can be won,” he said. “It happens every day.”

And if the district attorney felt the Evans hit-and-run investigation had shortcomings, he should not have asked grand jurors to vote on it – even once, Vacco said.

Vacco said he has been following the case because he knows some of the police officials involved, lives in the Southtowns and often drives past the spot where Moss was killed.

“In a case like this that is under investigation, with no charges filed, there is no urgency to rush to put it before a grand jury to vote on an indictment,” Vacco said. “There is a process by which you can have it removed from the docket of one grand jury, and if you get enough evidence, present it again to a new grand jury. You can wait.”

Vacco said he has been involved in hundreds of investigative cases that were presented to grand juries, ranging from murders to drug conspiracies to government corruption.

In such cases, Vacco said, prosecutors and police usually continue investigating until they determine whether there is sufficient evidence to ask the grand jury to vote on it.

“In my experience, it is extremely rare to see a situation where an investigatory grand jury is asked to vote on charges and a no-bill is issued,” Vacco said. “I was really puzzled when I read this was done in this case. I think they made a tactical mistake.”

If police come up with additional evidence concerning Moss’ death and want a new grand jury to examine the case, they will have to persuade a judge that the evidence is “new, substantial and was previously unknown,” Vacco said.

“That is not an easy legal hurdle,” Vacco said.

Grand juries – which are composed of 23 people – usually meet for a month. They examine evidence in cases, listen to testimony and vote to decide whether indictments should be made. In the Ballowe case, the grand jury met several times throughout the month of April to hear evidence about Moss’ death. The grand jury was supposed to finish its service at the end of April, but the grand jurors were called back to vote on the case May 12.

Kelly said he agrees with Sedita that no prosecutor should seek indictments without sufficient evidence, but he also agreed with Vacco that there is no urgency to get a grand jury to vote on a case if prosecutors feel more evidence is needed.

“I had many cases where I presented evidence to the grand jury, and after hearing what all the witnesses said, we just let it drop. We didn’t ask them to vote because we didn’t think there was enough,” Kelly said.

Spodek also questioned the district attorney’s strategy.

“Why would you present it to the grand jury in the first place to vote on indictments, when you don’t want them to indict?” Spodek said. “It would seem ludicrous.”

While he acknowledged that it is a step rarely taken by his office, Sedita said he would have no problem asking a judge to approve a new grand jury investigation of the Evans case.

“But only if we get solid, important new evidence – not gossip or innuendo,” Sedita said.

Sedita added that the grand jury’s no-bill does not mean that Ballowe has been determined to be innocent. It only means that there was insufficient evidence for the grand jury to indict her, the DA said.

Moss’ family offers reward

Maria Wrafter and her family have one glimmer of hope for the case to be renewed. They recently signed an agreement to issue a reward of up to $1,000 for information leading to the arrest of the driver who killed her brother.

The reward will be issued through the not-for-profit Crimestoppers program. She said the family hopes to add more money to the reward fund.

Anyone with new information about the case is asked to call Crimestoppers at 867-6161 or Evans Police at 549-3600.

“There is still hope,” said Czora, lead investigator for the Evans Police. “We definitely believe there are people out there who know more about this case than they have told us.”

Masullo, the Evans Police chief, said it is upsetting that people may be covering up knowledge about a crime.

“For us, this is still an open case, an important case,” Masullo said. “A man died. We plan to keep working it. We’re not going to just let it drop.”

email: dherbeck@buffnews.com