FLAHERTY OBSTRUCTED JUSTICE WHEN HE TAMPERED WITH

THE MOSS GRAND JURY

“Anyone entrusted with power will abuse it if not also animated with

the love of truth and virtue, no matter whether he be a prince, or one

of the people.”

Jean de La Fontaine

The grand jury is one of our oldest legal institutions. It is a body of twenty-three

citizens who act as the “conscience of the community”. The grand jury is designed

to protect society as a whole and the rights of the individual citizen. It is a check

on the abuses of governmental power. It is now clear that a public servant, a

prosecutor and district attorney, has in fact used his power to abuse an Erie County

grand jury.

WHO WAS THE SENIOR SEDITA ASSOCIATE?

The Buffalo News has reported that a male senior Sedita associate entered the

Barry Moss grand jury after they had voted for an indictment and requested that

they change their vote. On several occasions the media has asked Acting District

Attorney Michael Flaherty if he was the senior Sedita associate and he has refused

to issue a denial. The Public, on February 2, 2016, has published an article

confirming that Flaherty was the government official who engaged in this illegal

conduct. Several Erie County district attorney employees with contemporaneous

knowledge of the events in the Moss grand jury confirm that Flaherty was the

person who obstructed the indictment.

WHY WAS IT ILLEGAL?

All District Attorneys and Assistant District Attorneys in New York State take an

oath to uphold the Constitutions of the United States and New York State.

Flaherty was duty bound to follow the laws of New York State. Yet, he violated

the law in the Moss matter.

The law is clear. The grand jury is designed to be totally independent. The grand

jury is the sole and exclusive judge of the facts. A presiding judge and the district

attorney are the legal advisors to the grand jury but do not have any legal right to

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 Attorney’s 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

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.”

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 Attorney’s 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 Attorney’s 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 jury’s 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

Attorney’s 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.

New York Criminal Procedure Law §190.65 (3) states:

Upon voting to indict a person, a grand jury must, through its

foreman or acting foreman, file an indictment with the court by which

it was impaneled.

The operative word in the above section of New York State law is must. The

grand jury must, and in fact it is their duty to report out an indictment. No one has

the right to impair the lawful duties of the grand jury.

In United States v. Reed, the court stated:

“The statutory provisions that govern the duties and procedures of the

Grand Jury are to “be strictly construed and compliance therewith

meticulously observed.” In re June 1982 Grand Jury of the Supreme

Ct. Rensselaer Cnty., 98 A.D.2d 284, 286”

The court in Reed went further:

“The voting of a true bill is a vote to indict, and, “[u]pon voting to

indict a person, a grand jury must, through its foreman or acting

foreman, file an indictment with the court by which it was

impaneled.” N.Y. Crim. Proc. § 190.65 (3). The filing requirement is

“a ministerial act and not necessary to giving finality to a Grand

Jury's decision,” People v. Wesley, 161 Misc.2d 786, 791, 615

N.Y.S.2d 611 (1994)”

Flaherty did not want an indictment. Flaherty has little or no experience with

vehicular assault cases. In fact, Flaherty has little or no trial experience period.

Flaherty had not presented or heard any of the evidence before the Moss grand

jury. Flaherty had not been present during the legal charge. Yet Michael Flaherty

proceeded to enter the Moss grand jury, misstate the law and obstruct the Moss

grand jurors in their lawful duty to report out an indictment.

ACTING DISTRICT ATTORNEY FLAHERTY

MUST BE REMOVED FROM THE MOSS CASE

The Moss family and the grand jury have been betrayed by the Erie County

District Attorney’s 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

Flaherty’s 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

A person is guilty of tampering with a juror in the first degree when,

with intent to influence the outcome of an action or proceeding, he

communicates with a juror in such action or proceeding, except as

authorized by law.

Tampering with a juror in the first degree is a class A misdemeanor. Juror is

defined to include a grand juror under the penal law.

Federal Law has statutes which prohibit Obstruction of Justice. The bottom line is

that prosecutors have broad discretion, but they are not above the law.

CONCLUSION

What happened to the Moss grand jury is an outrage. It undermines the entire

criminal justice system. The jury system is the very foundation of our system of

justice. The empaneling judge of the Moss grand jury should be outraged and

should take action. The court system should be outraged and take action. The

defense bar should be outraged and take action. The media should be outraged and

take action. Justice requires that something must be done.