Mimesis Law
12 November 2019

Gabriele Ballowe: For Victims, Something Is Usually Better Than Nothing

December 21, 2016 (Fault Lines) — After Barry Moss was killed in a hit-and-run near the end of 2013, protesters began to gather:

A group of residents gathered Sunday to seek what they consider justice for Barry Moss, who was killed after a car accident late last year. No one has yet to be brought up on charges in the hit-and-run accident.

Moss, 52, was riding his bicycle Dec. 22 on Gold Street when he was hit by an SUV. The driver left the scene, and Moss was found the next morning by a woman on her way to work.

The group protested the circumstances around Moss’ death and drunk driving, though police never cited it as the cause of the crash that killed Moss.

Seeking justice when there’s no defendant yet is pretty unusual. Poor Moss didn’t deserve to die, but protests can’t bring him back. Justice typically needs a target. Protesting hit-and-runs generally is weird too, and protesting drunk driving in an instance where there’s no indication alcohol contributed to what happened is weirder yet.

Really, everyone just figured the owner of the car involved did it. They guessed she fled because she was drunk driving at the time. Maybe good guesses, but that still means the subject of the protests ultimately amounted to people being angry authorities hadn’t gone after someone based on facts that might not amount to probable cause:

Evans police say they found the vehicle that hit Moss. It was owned by Gabriele Ballowe, co-owner of the South Shore Beach Club. An investigation couldn’t determine who was driving the car that night, and a grand jury recently ruled that there wasn’t enough evidence to press charges.

The group protested in front of the club to show its discontent.

“I picked this spot because it’s right across from South Shore, which is where the person of interest is,” said protest organizer Albert Adams, “If it’s your family, what would you want? You would want the justice that the Moss family deserves.”

The need to blame someone is powerful; so powerful, in fact, that a group of people gathered outside of a business co-owned by a person investigator couldn’t prove was driving and against whom a grand jury didn’t find sufficient evidence to indict.

The mob decided Ballowe was responsible. Mobs find targets. Justice for a mob means getting someone, even if that someone is only at best a person of interest. The mob worries about how bad a victim’s family will feel if someone doesn’t pay. The mob never considers how their scapegoat’s family is likely to feel when their loved one is picketed and charged absent sufficient evidence. You don’t see a lot of protests about the justice that the family of an accused deserves.

To ensure they’d never again go without someone to lynch with adequate severity should someone be killed in a hit-and-run again, these protestors even had a proposed law named after a different sympathetic victim:

The group wants change and is pushing for Alix’s Law to be passed. The law is named for Alix Rice, who was riding her skateboard when she was hit and killed by James Corasanti in July 2011. Under current law, drivers have to know they caused injury or property damage to be convicted of leaving the scene.

Moss’s death was a tragedy just like Alix’s, and it’s easy to see how people enraged by it would want for someone to pay. The problem, however, is justifying why someone should have to pay if they did indeed have no idea they hurt someone or damaged something. How will criminal penalties for hitting someone you don’t know you’ve hit deter anyone from doing something they don’t realize they’ve done in the future? What sort of punishment does someone deserve for unintentionally causing harm and not even realizing it? There’s no malice, no intent.

It took a while, but Alix’s law was passed by the New York Senate (five times due to stalling afterwards from the assembly) and Ballowe was finally charged and pled guilty too:

For the first time since Barry Moss was killed, his family on Monday heard Gabrielle Ballowe, the woman they always believed responsible for his death, plead guilty in court.

Moss was hit and killed while riding his bicycle on a street in Evans in Dec. 2013. He was 52.

Ballowe, 50, pleaded guilty to leaving the scene of an accident without reporting resulting in serious physical injury, a felony.

And, of course, the prosecutor made an idiotic statement about it:

“This defendant would have never pleaded guilty had she believed she would prevail to trial,” said Michael Flaherty, the acting Erie County district attorney.

In reality, Ballowe did a cost-benefit analysis. She was looking at more serious charges. The prosecution had a sympathetic victim with sympathetic surviving next-of-kin and an exceptionally vocal angry mob behind them. No trial is a guaranteed win for the defense. Ballowe could’ve gotten a lot more than the max pursuant to her plea agreement. She got a favorable sentencing recommendation from the prosecution too.

With the other side apparently only having proof that Ballowe’s car hit someone, she and her lawyers probably did think they’d prevail at trial. It was almost certainly the unpredictability of trial and the coercive framework created by harsher available sentences at trial versus through a plea that really made Ballowe plead.

The facts on which her plea was based probably didn’t make anyone feel particularly good:

Ballowe recounted how she was driving down Route 5 in Evans when she realized her SUV hit something. Ballowe maintained she didn’t flee, but instead drove off, to her home about one mile away.

Despite Ballowe admitting in the courtroom she hit Moss that winter night, her attorney, Thomas Eoannou, said the accident was not her fault.

“Unfortunately, there was someone driving a bike on December 22 in the middle of a dark and foggy night, and an accident occurred,” said Eoannou. “I’ve said it from day one, now everyone agrees it was an accident and it wasn’t Gabriele’s fault.”

Had Ballowe faced only one year at trial and pled to only one year, maybe we could have some sort of confidence that she really did realize her SUV hit something. As it stands, no one but Ballowe will ever know if she was telling the truth or trying to make the best of a potentially terrible situation by lying about being guilty. Plus, Ballowe’s lawyer blaming it on Moss and saying the accident wasn’t her fault makes any catharsis for Moss’s family due to an admission of guilt by Ballowe even less satisfying than it should already be due to the fact it may be untrue.

Regardless, now it’s finally over and Moss’s family got something closer to what they wanted:

“I do realize I came into contact with something, but I did not know what it was,” Gabriele Ballowe said in the courtroom. “I should have stopped and it’s a mistake that will haunt me for forever. I pray for the family, that they find peace in the loving memory of their father, for his grandkids. I am very, very sorry for their loss.”

And again, the prosecutor had something profoundly stupid to contribute:

“Is this a happy moment, no,” Acting Erie County District Attorney Michael Flaherty said. “This isn’t a day of joy. This is a day of relief and a day of recognition that the system works.”

He’s right about it not being a happy moment or a day of joy. It may be a relief too, but probably not to the extent anyone had hoped. On the other hand, you would have to have a seriously demented picture of what a working justice system looks like to view Ballowe’s situation as being anything close to that.

Consider this tidbit from Ballowe’s lawyer:

“Based on where this case started as a vehicular manslaughter punishable by up to 15 years and this three year journey ending in a one year sentence was actually a fair result,” Ballowe’s defense attorney Tom Eoannou said.

One dark and foggy night years ago, Moss was riding his bike when someone hit and killed him with Ballowe’s SUV, then drove away. People got really upset. Cops couldn’t prove who was driving. People got more upset. A grand jury didn’t think there was enough for charges. People continued to maintain their level of upsetness and they were sure Ballowe did it, so authorities ultimately charged Ballowe. She pled to get a year to avoid fifteen while her lawyer blamed the victim, and now that she finally confirmed what may or not be true but that people wanted to hear, everyone is now pretending the whole situation isn’t completely dysfunctional. It’s suddenly an example of the system working.

The mob always says it wants justice. Prosecutors always pretend they’re trying to see that justice is done. Justice is usually just something – anything, really. It’s not that it’s a good result by any stretch of the imagination. It’s only that it’s better than nothing.

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  • SPM
    21 December 2016 at 1:20 pm - Reply

    It is interesting that a significant aspect of the story is missing. The fact that Ballowe owned the car but didn’t know who was driving (not that I buy that for a minute, people rarely give the keys to a SUV to an unknown strangers) may allow him to evade criminal charges, but it is almost certainly will not shield him from civil liability.

    Obviously, civil and criminal law both address different aspects of an action. However, it also means that criminal law does not need to address every possible ill that confronts society. I imagine that there was a line of “trial lawyers” a block deep waiting to represent the family of Barry Moss. Let that suffice. Let civil law handle these types of cases.

    It is perhaps worthwhile to point out a failure of the educational system over the last quarter of a century: life is not fair. You will not always be able to find a scapegoat, or get justice, or get satisfaction. Deal with it.