Here’s the conundrum facing Erie County District Attorney Frank A. Sedita III regarding the hit-and-run death of Barry “Bob” Moss: A prosecutor’s job is to see that justice is done. It’s not to convict every suspect, but it is to speak for the victims of crime. Whatever cracks exist between those two imperatives, Moss seems to have fallen through.
We don’t know that Sedita is wrong in his belief that Evans police, despite exhaustive efforts, lacked the evidence that a criminal trial demands. Specifically, while some expert observers believe Sedita could have built a circumstantial case against Gabrielle Barlowe, he concluded that he lacked proof that Barlowe was driving the vehicle that struck Moss and that she knew she had hit him.
It is, at least to a non-lawyer, a head-spinning set of circumstances that saw a grand jury vote to indict Barlowe, then, at a prosecutor’s urging, rethink the matter, vote again and return a no-bill.
First of all, there was damage to Barlowe’s SUV and Moss’ DNA was found on it. Parts of her SUV were found at the accident scene. It seems indisputable that it was her vehicle that struck Moss. Earlier, Barlowe had appeared to stumble while getting into the SUV, alone, after eating and drinking at a Hamburg restaurant.
Moss was struck on a road that was on a direct route from the restaurant to Barlowe’s home, and the time of the accident meshed with the time she left the restaurant.
After the accident, Barlowe’s vehicle was seen running a stop sign and nearly ran another driver off the road. She never reported to police that her car had been stolen or damaged and she took it for repairs to a body shop 20 miles away, when several were closer to her home. And she has refused to talk to police.
It’s easy to see why a grand jury would vote to indict. The question is whether Sedita is on firm ground in supporting the grand jury’s reversal or if he is providing evidence to those who believe he is unwilling to prosecute any case less than a sure thing.
Where is the line between “insufficient evidence” and “beyond a reasonable doubt?” Between following the demands of the law and ensuring that crime victims are given a voice in court?
It’s an inherently tricky question. Commenting on the matter for The News, former State Attorney General Dennis Vacco noted that while circumstantial cases can be challenging to prove, they can be won. “It happens every day,” he said.
More puzzling, according to Vacco and two other experts who commented on the matter, was the DA’s decision to have the grand jury vote on a case lacking critical proof. What was the rush? It’s more difficult, as a legal matter, to bring a case back to a grand jury after it has been no-billed.
It’s not the first time such questions have arisen about Sedita’s decision making. Last fall, State Attorney General Eric T. Schneiderman’s office took over a 34-year-old murder case from Sedita’s office. The cold case had been revived, but Sedita declined to prosecute it. Oddly, Sedita has offered to help in the attorney general’s prosecution of the case.
In the end, prosecutors depend on the trust of a community, most of whose members don’t know the law. Maintaining that trust is key to running a successful office and winning re-elections or moving on to other public offices such as judgeships.
The question is whether voters think Sedita is running his office according to strict standards that they should admire or if he is shying away from winnable cases that leave crime victims out in the cold. Whatever the answer is, Sedita seems comfortable with his choices.