BUFFALO, N.Y. — A judge is questioning the validity of a federal indictment against three individuals who were in a car that ran over some police as they attempted to break up a demonstration on Bailey Avenue back in early June.
U.S. District Court Magistrate Jeremiah J. McCarthy issued a decision and order that he concluded by stating, "I seriously question whether this indictment is valid on its face."
The judge’s remarks came after an attorney for one of the three defendants moved to be able to inspect the grand jury minutes in the case, which would be unusual because normally those would remain secret at this point.
While not granting the motion, the judge did order prosecutors to turn the minutes over to him for review to determine if prosecutors, as defense lawyer suggest, ventured outside the scope of the charges at hand when they secured the indictments.
“It's rare that judges express opinions that strong about indictments, but I think in this situation, all of the concerns we’ve raised are valid,” said Rob Singer, the attorney representing Semaj Pigram, one of the two passengers in the car driven by Deyanna Davis when the incident occurred.
All three occupants of the vehicle were charged in state court on host of counts, including being felons in possession of a handgun after one was found in the car.
Days later all were charged separately on that same count in federal court.
“We had some concerns when the case was indicted just days after the incident,” said Singer, who claims that at the time much of the evidence prosecutors might seek to introduce had either not yet been collected or processed.
Moreover, he contends that it hadn’t been established which of the defendants were in possession of the gun, which would be a key factor in terms of federal charges.
“There’s a presumption under New York law that when you possess a gun inside of the car, everyone in the car is guilty of the possession charge,” Singer explained. “But that doesn’t exist under federal law. You have to show actual possession or who could exercise of diminutive control of the weapon, and that didn’t exist in this case back on June 4.”
Singer, himself a former federal prosecutor, also raised the specter that prosecutors in this case may have more than casually mentioned to grand jurors that the three defendants were involved in the officers being injured, in order to gain the indictments.
“That’s something that could have caused the grand jury to vote for the indictment as opposed to what they should be voting on, which was the elements of the offense … and what they were charged with, which was being a felon in possession of a firearm.”
Additionally, Singer suggests there are politics at play.
“The federal indictment in this case was procured in the wake of public statements made by Attorney General Barr and President Trump calling for 'law and order' and federal prosecution of protesters who were 'outside agitators,' ” he said, noting there is no proof that that the defendants in this case were “outside agitators” of any sort.
However, even if the judge rules in favor of the defense, their clients are far from out of the woods legally.
The state charges filed by Erie County District Attorney John Flynn would remain, and there, the standard of proof for being a felon in possession of weapon, as Singer himself noted, is less burdensome than it is federally.
