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antwan odom

October 3, 2019 - 2:27pm
posted by Howard B. Owens in crime, news, antwan odom, batavia.

A jury of nine women and three men are sitting in a private room at the Genesee County Courthouse right now and debating, not just the merits of a legal case against a 19-year-old man, but what kind of future he might have in society.

Of course, jurors are instructed not to consider any potential sentence a defendant might receive, but for Antwan Odom that is what the deliberations come down to because a conviction on assault in the first degree, a Class B violent felony, carries a mandatory minimum of five years in state prison.

The Batavia High School grad and former basketball star passed up a chance, on the advice of his attorney Frank Housh, for a plea deal that could have meant no jail time and adjudication as a youthful offender.

If Odom is convicted, Judge Charles Zambito will have no choice under the law than sending him to prison for anything less than five years.

Housh expressed in court in May, when the plea deal was offered, that he thought Zambito and District Attorney Lawrence Friedman were somehow colluding against his client. It's a theory Housh reiterated today in a conversation with Odom while a reporter was sitting nearby -- which Housh knew -- and that reporter could easily hear him tell Odom, "The judge isn't going to do it because he's going to do what the DA tells him to do."

Housh made the statement while discussing with Odom that he would ask Zambito to include in jury instructions on what constituted a serious physical injury. He also said he would object to the jury being instructed on the options for conviction on lesser-included offense. That's because Housh believes that if the evidence doesn't support the indicted charge, it doesn't support either potential lesser-included offenses.

In fact, Housh made that motion and also said the lesser-included offense should not be part of the jury form because Friedman, in his closing argument, told jurors they shouldn't even consider the lesser-included offense because Odom should be found guilty on the original count of the indictment.

Housh also argued that prior legal precedent meant that Zambito should instruct the jury that Leach didn't receive a serious injury because protracted pain that is only subjectively reported is not a serious injury.

Friedman's response to the assertion that he asked the jury not to consider a lesser-included offense was that he was on the record, and the record was clear, that he did call for the lesser-included offense to be part of the jury's charge. That was done before summations so that the attorneys would know what instructions the jury would receive so they could fashion their arguments accordingly.

"Just because I asked the jury not to consider the lesser-included offenses means nothing," Friedman said. "It's common practice and there is nothing inappropriate about it. Our summations are based on rulings made prior to the summations."

Zambito agreed that Friedman was on the record seeking to include the lesser offenses.

Housh also made a motion for a mistrial based on prosecutorial misconduct because, he said, Friedman knowingly introduced into evidence a fact that was not relevant to the alleged serious physical injuries of Ray Leach. Housh said Dr. Lori Ferris testified that hand numbness reported to her by Leach was not the result of the Aug. 4, 2018 incident that led to Odom's arrest.

"He had to have known (before she took the stand)," Housh said "For a prosecutor of Mr. Friedman's high level of skill and experience not to know which injury is related to my client's prosecution is not believable. He asked Ray Leach (on the witness stand) about his hand, knowing it was unrelated (to the incident) and asked the jury to consider it as evidence."

Friedman responded, "as for the claim of prosecutorial misconduct, it's absurd. As a representative of the office of the court, I did not know that the doctor would testify that the hand injury was potentially unrelated to these crimes."

Housh reiterated his contention that for a prosecutor of Friedman's skill, expertise and experience not to know isn't believable.

"While I always appreciate compliments coming my way from Mr. Housh, I'm telling you, I did not know," Friedman said.

Zambito denied Housh's application for mistrial.

The judge and two attorneys then continued going over jury instructions.

Once they were done, the jury was brought in and Zambito read to them several pages of jury instructions about the law, the charges and how to apply the law and the evidence to the charges.

When Zambito finished, Friedman asked to approach the bench. The jurors were asked to leave the room but admonished to not start talking about the case yet.

The attorneys and Zambito conferred for a few minutes and then the attorneys returned to their tables, at which point Housh complained that Friedman did not follow proper procedure by raising an objection in front of the jury.

Friedman's concern was that Zambito neglected to include instructions on how to consider an agreement to mutual combat in a justification defense.

After much back and forth discussion, the attorneys all agreed that the jury would be brought back, Friedman would make his objection on the record, and then Zambito would read again the entire section on the justification defense, this time including information on mutual combat.

The jury started deliberations at about 11:30 and have reportedly sent out at least one note asking for a copy of the charging document and the evidence.

October 2, 2019 - 11:04pm
posted by Howard B. Owens in antwan odom, crime, batavia, news.

In defending Antwan Odom before a jury of nine women and three men, including one person of color, Buffalo attorney Frank Housh laid out a seemingly convincing case during closing arguments this afternoon in Odom's first-degree assault case.

If body language and facial expressions are any indication, many jurors appeared sympathetic to the defense.

Housh said the alleged victim in the case, Ray Leach, was the aggressor, that he threw the first punch, suggesting he caught his client by surprise as he put down his phone; that Leach was not seriously injured, and that the prosecution's case was built on misrepresentation and misinterpretation of the evidence.

In response, point-by-point, District Attorney Lawrence Friedman methodically tore apart Housh's theory of the case, as he typically does to defense attorneys when he makes his closing arguments.

Odom's future will soon be placed in the hands of a Genesee County jury that seemed engrossed in the case as it was presented to them during this week's testimony and arguments.

And arguments abounded.

Housh and Friedman clearly do not like each other.

At one point this afternoon, after a break for lunch, Friedman entered the courtroom from the back hallway -- a hallway that leads both to back door of the DA's suite of offices and the judge's chambers -- while Judge Charles Zambito was not in the courtroom (and neither was the jury), Housh asked, "Is there something going on back there I don't know about?"

Friedman responded, "I thought we weren't talking to each other?" before sitting down at his table.

"I'm asking if there were ex-parte communications."

Friedman sat stone-faced looking straight ahead, with two young aides sitting to his left, until Zambito entered the courtroom, at which point Housh said he wasn't suggesting, respectfully, anything inappropriate but he wanted to inquire whether there was an ex-parte communication. Zambito told him he was alone in his chamber with his clerk.

At another point, again, with the jury out of the room, just before Odom took the stand, Housh was at the lectern ready to examine his witness, Odom, when Friedman silently walked by.

"I'm sorry," Housh remarked crossly, "did you say something to me?"

"I did not," Friedman said.

And so it went, continuing a course of antagonism in the case going back to at least May. That's when Housh, in open court, suggested that Friedman and Zambito might somehow collude against his client. His thoughts in this regard steered Housh to conclude that if he accepted a plea deal -- that could have meant no jail time for Odom -- he couldn't trust that Zambito would follow through and grant Odom youthful offender status.

It was after that hearing that Housh made statements about Ray Leach that led Friedman to seek a gag order on the attorneys in the case, prohibiting them from speaking to reporters. The Batavian objected to the gag order and Zambito lifted it but from that time on, Housh has repeatedly accused Friedman of filing an ethics complaint against him with the State Bar. Housh maintains that Friedman's actions have placed him in the position of defending both himself and his client at the same time, while constantly worrying that anything he does in court will lead to a further ethics complaint to the bar by Friedman.

On Tuesday, Friedman denied Housh's accusation, calling it "ludicrous."

The relationship between the two attorneys has been rocky at every court appearance since May. The trial, even at times with the jury in the room, with Housh often acting exasperated and petulant, has been no different.

The morning started in conflict seven minutes after Dr. Lori Ferris took the stand.

Friedman attempted to enter into evidence medical records from the University of Rochester Medical Center and Housh objected, claiming he hadn't seen the exhibit. Friedman said he had provided the defense the documents. Housh said he couldn't trust Friedman to have provided him with the same documents Friedman was now entering into evidence.

After some bickering over the documents, Housh said Friedman hasn't provided the proper foundation in his questioning to get the documents entered into evidence. Friedman asked Ferris some questions about the documents and then Housh again objected and there was a debate about whether the documents were self-authenticating. Zambito ruled they were.

At one point, Housh turned on his heels, away from the bench, with his thick-rimmed, tortoise-shell glasses slipping down his nose, and said, "Let's proceed judge. I'm tired of fighting about every little thing."

That caused Friedman to raise his eyebrows and glance at him askance.

Dr. Ferris treated Leach for his wounds a few days after the Aug. 4, 2018 incident on Ross Street in Batavia and has continued to see him every few months since.

She testified that the most severe of Leach's 12 wounds were on his right thigh. She said Leach's wounds were consistent with those that would be produced by a knife.

A week later the wound was less swollen and she cleared him for football practice.

When she saw him on Sept. 7, the wound was nearly healed although Leach reported numbness near the wound.

For the first time, he also reported numbness in his fingertips. Ferris concluded this was from nerve irritation in Leach's elbow that probably had nothing to do with the Aug. 4 incident and she told him to not rest on his elbows. She also prescribed medication for mitigating pain and numbness due to nerve damage.

She saw Leach again in April for his college physical exam and in July for a follow-up. In both cases, Leach reported to her continuing nerve numbness and pain.

During cross-examination by Housh, Ferris said that Leach's nerve damage was due to sensory nerves and not motor nerves (nerves that control muscles). She said Leach suffered no loss of muscle control or strength.

Housh also had Ferris review a medical record from Leach's Aug. 4 admission into an emergency room and tell the jury that a Dr. Patel examined Leach and found no serious injury.

Ferris testified that the typical maximum dosage of the medication she prescribed to Leach is 1,200 milligrams three times a day. She started Leach at 100 milligrams three times a day, then at a later visit bumped him up to 200 milligrams three times a day, and then 300 milligrams three times a day.

She told Housh that she never saw any reason to refer Leach to a specialist for his nerve damage.

Housh asked if there was any objective evidence that Leach had any continuing pain and Ferris agreed that she only had Leach's subjective word on the type and level of pain he said he suffered and that there was no objective test to confirm the pain or discomfort.

Ferris was the final prosecution witness.

After the prosecution rested, Housh made a motion to dismiss both charges against Odom, assault in the first degree and criminal possession of a weapon in the fourth degree. Housh argued that the prosecution had failed to present evidence that Leach suffered serious physical wounds or that Odom had possessed a knife.

Friedman argued that Leach's 14-months-and-counting of physical pain constitutes, under the legal definition, a serious physical injury.

After a recess, Zambito ruled against the motion, but said the jury could be instructed on considering a lesser-included offense, such as attempted assault or assault in the second degree. Housh put on the record that he objected to this ruling.

Odom, dressed in a slim-fitting, charcoal-gray suit with a bow tie, white shirt, and dress loafers, took the stand (For the record, Housh wore to court today his apparently favorite blue blazer while Friedman was dressed in a navy blue suit).

Unlike Leach, who mumbled through some of his testimony on Tuesday, Odom, who had about a dozen supporters in the gallery, including friends and family, spoke clearly and directly to both attorneys as he answered questions.

Odom testified that he and Leach are no longer friends. At first, he said the friendship ended when Leach tried going after his girlfriend. Then he said the friendship ended on Aug. 4, 2018.

He said the trouble last summer with Leach started when Leach was on vacation and apparently heard that somebody had broken into his room and stole $50 and perhaps marijuana.

He said he received Facebook messages from Leach. At one point, he said a message said, "If I find out whoever ran into my room, I'm going to end him."

Later, under questioning from Housh, Odom said that Leach said, "I'm going to end you."

Odom said he took the message from Leach as a threat against him and he also testified that he believed Leach kept a gun under his bed.

When Leach arrived home on Aug. 4, according to Odom, Leach drove past his house and called him a well-known race-based slur. He then parked and walked up to his house while Odom was playing outside with his niece and nephew, and asked him if he wanted to "do it here or do it somewhere else."

Odom said, under questioning, that he believed Leach could possibly have a gun and didn't want a confrontation with him in front of his niece and nephew.

He testified that his father, grandmother and sister were also present.

The two teenagers walked across the street toward Leach's house in a driveway next to Leach's home; Odom put down his phone, at which point, he said, Leach punched him.

He testified that he doesn't remember anything that happened after that and the next thing he remembers is waking up in the mental health ward of a hospital with his parents by his side.

Housh asked him if he fought back.

He said he didn't remember.

Housh asked him if he thought he would have fought back.

He said yes.

Under questioning by Housh, he said he never carried a knife and doesn't know where he would have gotten a knife, even a small pocket knife, to use against Leach.

Despite a police search of the area, no knife was located and no knife has been produced.

In cross-examination, Friedman zeroed in on Odom's contradiction about when he ceased to be friends with Leach. He questioned why Odom would follow Leach to his house when he believed Leach wanted to kill him. He questioned why, with all the people around him, nobody called the police.

"All these people standing there and you say somebody is going to kill you and nobody called the police?" Friedman asked incredulously.

Leach testified that Odom said, when they arrived in the driveway, "After this fight, it's over."

Odom said he didn't say that.

"Oh, you don't remember that?" Friedman said.

"I don't remember saying that because I didn't say it," Odom said.

While Friedman was questioning when one or both of them dropped their phones, his voice rose and Housh objected to Friedman's tone and said he should modulate his voice. He accused Friedman of "badgering" the witness.

Zambito overruled the objection, saying he gave both attorneys leeway to engage in the examination as they deemed appropriate.

Odom testified that he didn't steal anything from Ray Leach, that he doesn't remember stabbing Ray Leach, either aggressively or in self-defense, and that he doesn't know what happened after the first punch.

In both examination and cross-examination, Odom discussed an arrest in the Town of Sweden for what was referred to as a "DWI arrest." Odom testified that he had smoked marijuana the day before he was stopped for speeding with four other people in the car. Police believed one of the occupants was underage. Odom was charged with driving under the influence with a person under age 16 in the car.

That charge was either dismissed because it wasn't true (as it came out in Housh's questioning) or because it was part of a plea deal (under Friedman's questioning). Odom said the person who was supposedly under 16 lied about his identity, using his younger brother's name. The person in question was actually 17.

Friedman tried to make an issue of the fact that Odom never told police that there was anybody under 16 in his car when he was arrested. Odom said he didn't understand the charge until he was in Sweden Town Court.

Odom testified that he smoked marijuana on the morning of Aug. 4. Friedman asked if was true that Odom smoked marijuana on a daily basis. Before he could answer, Housh objected and Zambito sustained the objection.

After Odom's testimony, the jury was dismissed for lunch. There was discussion in open court about what language, and what portions of the law, Zambito would cite when instructing jurors on the law and the evidence of the case. Typically, this discussion takes place in the judge's chambers.

Much of it centered around how to instruct the jury on a justification defense.

The attorneys sparred over the meaning of "mutual combat." Housh maintained that in New York, "mutual combat" refers to sporting events, such as boxing or mixed martial arts. Friedman maintained that mutual combat referred to any circumstance where both opponents agree to fight.

During this exchange, one of Friedman's staff approached him and whispered something.

Right after Zambito asked Housh a question, then Friedman spoke up and said he wished to address an issue with the court. In a petulant tone, Housh said, "(Zambito) asked me a question and you're going to answer?"

Friedman said that it had come to his attention that there were jurors in the hallway eating their lunch while there were also members of Odom's family in the hallway.

Zambito clarified that jurors had been dismissed for lunch and they were free for that hour to go where they wished and they had already been instructed not to discuss the case with anybody. Friedman shrugged and accepted the explanation.

When the jury returned after lunch, Housh started his closing statement by complimenting the jury on their attentiveness during the trial.

"For you to find my client guilty of anything you have to believe Ray Leach," he said. "You have to believe Ray Leach is a credible and honest witness upon whose good word you can rely to convict my client of a very, very serious crime and you can't do that. And you don't have to take my word for it. You just can't. I'm going to talk about how he denied his previous testimony, his previous sworn statement."

He said, "What do we know about Ray Leach? 'He had a great season.' We know that because that was the first words out of the DA's mouth."

He said that Leach admitted he would lie if it served his own purpose and that he didn't call police about his money being stolen because he "wasn't that kind of guy."

"The DA had no problem," Housh said, "with Leach taking the law into his own hands."

Leach, he said, wasn't a credible witness because he was confrontational on the witness stand.

Housh said that if there was a lot of blood because of the stabbing, where was the evidence? He pointed to a crime scene photo and questioned why it didn't show a lot of blood. If there was a lot of blood, why didn't the prosecution produce Ray Leach's clothing covered in blood?

"Why do you think the DA didn't bring it out for you to see?" Housh asked. "Because there is no blood on them and he wanted you to see all the blood he could, but he couldn't be bothered to show the clothing the victim was wearing that night because it doesn't fit his theory of the case."

He said Dr. Ferris testified that Leach didn't receive serious injuries, that Dr. Patel said he didn't receive a serious injury.

Leach, the star running back for the Batavia Blue Devils, gained 3,000 yards on the season, Housh noted, which is further proof he wasn't seriously injured.

The prosecution, he said, is claiming Leach suffered nerve damage but there is no evidence that Leach suffered nerve damage other than his say-so that he suffered nerve damage.

He called the cuts Leach received "superficial."

As for the knife, he said Leach testified it was a small pocket knife, which is not something capable of causing death or serious physical injury. And clearly the knife didn't do that, Housh said because Leach was cut 12 times and still able to play football and gain 3,000 yards on the season.

"It all comes down to the word of Raymond Leach, who lies under oath about things that will help him and who doesn't call police when he thinks he has been burglarized and who says he will take care of it himself," Housh said. "That is their credible witness, their case, their gold standard."

As Friedman stood before the jury to give his closing statement, he said Ray Leach was credible.

"You saw how Ray Leach testified," Friedman said. "You saw the manner he testified. I firmly believe every one of you paid attention and listened to him and you listened to what he said and saw how he said it and you evaluated whether he told the truth and I submit to you that in light of all the evidence that I'm confident that you believe him."

Friedman said Leach's testimony did not contradict his prior statements.

"There is no evidence that he previously testified falsely," Friedman said. "He certainly didn't admit that he lied under oath."

At multiple points in his open and closing statements, Friedman said, Housh said his client was beaten unconscious but at no point during the trial was evidence presented that Odom was ever unconscious.

As for the lack of a knife, Odom, he said, had ample opportunity before police arrived, to dispose of the knife.

As Friedman discussed the "convenient" assertion that Odom couldn't remember anything after getting punched, and that only Odom has anything to gain or lose by the verdict, Housh jumped up and said, "Objection. Motion for a mistrial."

At which point, Zambito asked the jury to leave the courtroom and then the attorneys argued about Friedman's line of summation. Housh claimed that Friedman was trying to shift the burden of proof to the defense. Friedman noted, correctly, that he had said explicitly that he wasn't shifting the burden of proof.

Zambito agreed with Friedman and the jury returned.

Resuming his closing statement, Friedman noted that the only suggestion that Leach owned a gun was from Odom's testimony.

He said, "According to the defendant, Ray Leach came to his house and calls him out and the defendant is afraid that he is going to be killed by Ray Leach, he says he knows he has a gun and he thinks Ray Leach is going to kill him, and what does he do to avoid being killed by Ray Leach, he leaves with him. He doesn't yell out, 'Ray Leach has a gun and he's going to kill me. Call the police.' He goes with him right next door to the victim's house."

Friedman said the initial confrontation was combat-by-arrangement, which negates the contention that Odom cut Leach in self-defense.

"He says he didn't have a knife but he was justified in stabbing Ray Leach 12 times," Friedman said. "He got punched and that's it. He doesn't remember anything else. How convincing is that?"

As for the issue of serious physical injury, the standard isn't whether Leach could continue to play football, that he could gain 3,000 yards. The standard is that Leach continued to suffer from pain from his wounds.

The standard for serious physical injury is longer-term of protracted impairment of health.

"As of Jan. 3 of this year, five months after this happened, he was still having nerve symptoms," Friedman said.

Yes, Leach didn't have further tests by a specialist because the doctor treating him knew she could treat him effectively herself. That doesn't mean, Friedman said, that the injuries don't meet the legal standard for serious injury.

And while one doctor said Leach didn't suffer a serious injury, there is no consistent definition in the medical community for serious injury. In a court of law, there is and in this case, the definition is met by the evidence presented by Dr. Ferris.

As for Housh's contention that these were superficial cuts, Friedman said the jury had seen the photos of the cuts.

"They are not anything you would call superficial," Friedman said.

As for Leach's great season as a running back for the Batavia Blue Devils, that doesn't mean he wasn't seriously injured.

"Impairment of health doesn't mean totally disabled," Friedman said. "It doesn't mean that you are unable to play football and it doesn't mean you are not able to play football well. He had nerve damage to his leg and he suffered through that nerve damage. He played through it. He had medication to deal with it and when that wasn't working he got something else. When that wasn't working, the doctor upped the dose, and when that didn't work she upped the dose again. That is impairment.

"His mother testified that football is his life," Friedman added. "He was determined to be at practice. He was determined to get back and play. He was determined to get back on the field. Yes, he had a great season but that doesn't mean his physical condition wasn't substantially impaired.

As for the knife, Friedman said it doesn't need to be a big knife to be a weapon capable of causing serious physical injury. Echoing that a former corrections officer who had been on the jury panel, but not selected for the jury, said during jury selection, many items can be turned into a weapon capable of causing serious physical injury.

The proof that the knife, in this case, was capable of causing serious physical injury is the fact that it did cause serious physical injury, Friedman said.

To the self-defense claim, the fact that Odom apparently lost the fight doesn't mean he can then attack Leach with a knife, Friedman suggested, and further undercutting the self defense claim is that Odom had an opportunity to retreat (one of the legal standards in a self-defense claim) and that the first wound Leach received was a stab in the back.

Zambito was supposed to give jury instructions this afternoon but apparently there is still wrangling between the attorneys over what the instruction will be so those instructions are delayed until Thursday morning. After the instructions, the jury will begin deliberations.

August 5, 2019 - 5:48pm
posted by Howard B. Owens in crime, batavia, antwan odom, ray leach, news, notify.

The stenographer whose Grand Jury work has been called into question in a few criminal cases in Genesee County testified in open court today in a hearing on motions brought by the attorney for Antwan Odom.

Odom is charged with attempted assault, 1st, and criminal possession of a weapon in a case stemming from an altercation with a high school teammate a year ago yesterday.

Susan Ryckman, who is contracted with the county for Grand Jury transcription through Forbes Court Reporting Service, testified today about the equipment used to make transcriptions of proceedings and how that was tied into an automatic audio recording feature on her transcription device.

In 22 years of transcribing grand jury proceedings neither her employer nor any staff member with the District Attorney's Office ever informed her it was against state law to make an audio recording of a grand jury proceeding, Ryckman testified.

While Ryckman said she started handling grand jury work for the county in 1997, she wasn't asked nor did she say in what year she started using a transcription machine that enabled audio recordings of proceedings.

While motions have been made in other criminal cases, and there has been at least one prior hearing on the topic, and in each case, Judge Charles Zambito denied defense motions related to the audio recordings. Odom's attorney, Frank Housh of Buffalo, elected to require another hearing on the issue.

Housh is seeking disclosure of the grand jury minutes -- typically kept confidential and not disclosed to the defense attorney until the start of a trial -- to see if the audio recording resulted in anything prejudicial against his client. An example might be the stenographer asking somebody to speak up so the audio recorder would pick up the sound of the reporter not asking an inaudible word to be repeated.

If Housh could prove to Zambito that the grand jury proceedings were improperly influenced by the audio recording, then Housh would have a basis for dismissal of the charges against his client.

Zambito indicated he is skeptical that the actual substance of the grand jury testimony was changed because of the audio recording.

On another front, Housh is asking the case against Odom be dismissed because of "prosecutorial misconduct," which he said stemmed from the failure of the DA's office to ensure Ryckman knew she couldn't audio record grand jury proceedings.

District Attorney Lawrence Friedman called the accusation "ridiculous."

As for the audio recording material affecting the case, Housh noted that based on Zambito's prior ruling, the burden of proof falls on the defense, which he said he found unusual but that he was in a no-win situation if he couldn't review the transcript to prove there was an issue material to the case.

Zambito said he first had to be convinced that it would be possible there would be something in the transcript revealing the audio recording impacted the integrity of the grand jury proceeding.

Ryckman testified that with her present transcription setup she can record audio in one of two ways -- directly into her transcription machine or onto her laptop computer when it is connected to the machine. She said she doesn't always use her laptop during grand jury proceedings.

The recording is only activated when she touches a key on her transcription machine keypad. When she's not typing, if she pauses for any reason, there is no recording.

The quality of the audio is not good, she said, and doesn't necessarily pick up everything that is said. It can be affected by the position of the speaker, other room noise, or even a piece of paper left sitting on the internal mic of the laptop.

She said she doesn't rely on the audio recording for making the official transcript. She has used it to spot check her notes if she thinks something is unclear but she never listens to the audio recording from beginning to end. Her software allows her to highlight a questionable word or phrase and it will open that section of audio recording for her to check if the recording can help her clarify what was said.

The audio recordings only came up as an issue because Assistant District Attorney Shirley Gorman called Ryckman about a case citation contained in a completed transcript. Ryckman said she checked her notes and her transcript and then mentioned to Gorman that she also checked her audio recording. That was a red flag for Gorman.

And that was the first time Ryckman -- who is also a court reporter in a variety of other kinds of court cases, not just grand juries, throughout Western New York -- learned that she couldn't audio record grand jury proceedings.

Ryckman said she did not retain the recording from the Odom proceeding. She had deleted the recording by the time of Gorman's call per her standard procedure. She said once a transcript is done, she backs up the transcript and her notes to an external hard drive. The software she uses asks her if she would like to save the audio recording as well and she always checks "no" in the box. She then deletes the original files from her laptop.

She said she doesn't save the audio recordings because they are no longer needed once the official transcript is done and they take up too much storage space.

She did have audio recordings for Nov. 7 and Jan. 15 (Odom's hearing was in early December) when Gorman called. She had the Jan. 15 recordings because she hadn't finished the official transcript yet for that proceeding. She had no explanation for why she still had Nov. 7 recordings on her computer at the time of Gorman's call.

"I don't know how I missed the backup for Nov. 7," Ryckman told Housh during cross-examination. "I don't know why for some reason it was still on my computer."

Under questioning from Zambito, Ryckman said there is nothing in the final transcript that would indicate an audio recording had been made during the proceedings.

Earlier she testified that she didn't always use the audio recording feature and that she couldn't remember if she used it specifically during the Odom proceeding, and if she did, if she referred to it at all while preparing the final transcript. And if she did make a recording, she couldn't recall specifically deleting it, but if she did make it she deleted it according to standard procedure.

Zambito said he will make a decision on Housh's motions within a couple of weeks.

Friedman noted that Housh has said he is going to file a motion to make raise the character and background of Ray Leach at trial and that no such motion has been filed. In the interest of judicial expediency, Friedman asked that a deadline be set for the motion.

Housh countered that if judicial expediency was at issue, he should be given access to the grand jury transcript prior to the trial. He argued that if standard procedure is followed and he doesn't receive a copy until the first witness takes the stand, then the trial will need to take a recess while he reads the transcript and reviews it with his client.

Zambito ordered Friedman to turn the transcript over to Housh 30 days before the Sept. 30 trial date.

So, one way or another, Housh will soon get the transcript -- either 30 days before the trial, or sooner, if Zambito rules to his favor on his motion regarding the stenographer issue.

July 2, 2019 - 9:13pm
posted by Lauren Leone in batavia, antwan odom, crime, news, notify.

Defense attorney Frank Housh’s motion for the disqualification of District Attorney Lawrence Friedman from the Antwan Odom assault case was denied, but the attorneys’ gag order was lifted today during oral arguments.

Housh is the defense attorney for Antwan Odom, the Batavia High School athlete charged with cutting Ray Leach with a knife during an alleged argument Aug. 4. Odom is accused of committing assault in the first degree, which carries a prison term of five to 25 years.

In May, Odom turned down Friedman’s offer to for him plead guilty to second-degree assault. The plea would be unconditional and expose Odom to a potential maximum sentence of seven years.

Housh did not feel there was enough of a guarantee from the court that Odom could be tried as a youthful offender and avoid a lengthy prison term, so his client declined the plea offer.

Friedman also filed an order to show cause (a little memorandum asking the judge to take action) in May requesting a gag order on both attorneys after Housh made statements to local reporters that Friedman considered a violation of professional conduct standards.

Friedman also filed an ethical grievance complaint with the state bar.

In response, Housh filed a motion to disqualify Friedman and assign a different prosecutor from an adjacent county to Odom's case. Housh said this motion was to protect his client from prejudice due to conflict of interest since, as he said he sees it, Friedman is prosecuting both him and his client.

Housh said that when Odom chose to not accept Friedman’s plea deal, both he and his client were attacked. He fears that Friedman’s assignment to this case may lower the public’s confidence in the justice system.

Housh said the grievance caused him to retain counsel and assume that every action he took for Odom would be used as evidence against him. Housh said he now represents his client in an unusual manner, such as consulting his personal attorney before consulting with his own client.

Housh insisted he wants to represent Odom but fears he will have to withdraw from the case due to personal, professional and financial costs. He said that his client’s Sixth Amendment right to counsel cannot be upheld if he is protecting himself from legal action. Odom's family and friends nodded their heads in agreement as Housh spoke.

Friedman explicitly opposed the motion. He said there is no merit to Housh’s argument and described it as “nothing short of ludicrous.” He maintained that Housh violated the rules of professional conduct, so it is not logical for the court to remove Friedman as the prosecutor when he was trying to uphold fair trial rights. 

Judge Charles Zambito rendered the decision that the district attorney did not demonstrate prejudice nor a conflict of interest and did not act in bad faith when he filed the grievance against Housh. So, the motion for disqualification of Friedman was denied.

In lifting the gag order, Zambito said that neither attorney opposed the gag order but that the local media did contact him to oppose the gag order based on First Amendment/free press grounds.

The Batavian filed a memo with the court objecting to the gag order, using material provided by the Reporters Committee on Freedom of the Press. 

Zambito lifted the gag order on the attorneys today.

Judge Zambito reminded the attorneys of the rules of professional conduct regarding extrajudicial statements to the media.

Friedman asked for a deadline for Housh to notify the court of his decision to continue to represent Odom. Zambito did not set a deadline because he trusts Housh will alert the court of any changes as soon as possible.

“With me or somebody else, my client is going to try his case," Housh said outside of court. "We believe strongly that the jury is going to see that this is a clear case of justification. My client was not the first aggressor.

“I think the judge is confident the lawyers understood their obligations. I don’t think I did anything wrong by explaining to the press what my motion was. The judge just wants the case to proceed to trial, and that’s what we’re going to do,” Housh added. 

Odom’s trial is slated to begin Aug. 5 in Genesee County Court.

May 3, 2019 - 2:04pm
posted by Howard B. Owens in crime, batavia, news, notify, antwan odom, ray leach.

A defense attorney for Antwan Odom, the Batavia High School athlete accused of cutting Ray Leach with a knife during an apparent argument Aug. 4, will file a motion in advance of a trial later this year that will allow him to call into question Leach's character.

Odom today turned down a plea offer that could have meant no jail time, seemingly on the advice of his attorney, Frank Housh, of Buffalo, because Housh didn't feel there was enough of a guarantee from the court that Odom could be adjudicated a youthful offender and avoid a prison term.

Outside of court, Housh said his client didn't commit a crime, that he acted in self-defense, and that as part of a self-defense claim, he should be able to submit evidence that supports his claim, including the character of the alleged victim.

"The fact that Ray Leach is known in the community to be a violent person, to be a confrontational person, who confronted (Odom) -- by the prosecution's own admission -- he was the first aggressor," Housh said. "He went to my client's house and called him out and beat him into unconsciousness.

"So, under those circumstances, to say, when the prosecution is admitting that he was the first aggressor, to say that his history of violence and intimidation is irrelevant is simply absurd. We should be able to bring that up because it goes to the circumstance of his justification."

Housh may also seek a change of venue. Given Leach's status as a star athlete, one of the most recognized athletes in the region, Housh said he isn't sure an impartial jury could be impaneled in Genesee County.

A change of venue motion isn't certain, Housh said. He will need to research it further.

He said a request for a change of venue is unrelated to a bit of a conflict in court today over the terms of a potential plea agreement and what Judge Charles Zambito's role is in guaranteeing any particular sentencing outcome.

Odom is charged with assault in the first degree, a Class B felony with a minimum sentence of five years in prison and up to 25 years in prison. District Attorney Lawrence Friedman's offer was for Odom to plead guilty to second-degree assault, a Class D felony. The plea, Friedman said, would be unconditional and expose Odom to a potential maximum prison term of seven years.

However, Odom would also then be eligible for a probationary sentence and youthful offender status, which would seal his criminal record.

Housh said in court today that in 25 years of practicing criminal law, including 10 working as a prosecutor, he had never come across a court where he couldn't get a promise from a judge on sentencing perimeters. 

His interpretation of his conversation with Friedman was that he couldn't even ask Zambito to promise probation and youth offender adjudication and that even to discuss the possibility with the judge would violate the terms of the plea offer.

"Never have I seen a scenario where the separation of powers has been so different, whereby the prosecutor decides what sentencing perimaters and what protocols the judge will follow," Housh said. 

Friedman rolled his eyes.

He said Housh was mischaracterizing their conversation and that an unconditional plea offer is just that -- there are no preconditions on sentencing. It would be up to the judge to decide on the day of sentencing what the appropriate sentence should be.

If the judge makes promises about sentencing at the time of the plea then it is no longer an unconditional plea, Friedman said.

"If the defendant wants the range of sentencing with a D felony instead of a B, then take the plea," Friedman said. "If not, then don't take the plea."

Zambito told Housh it is his practice to never promise anything less than the statutory limit. He wants to see the presentence report and hear the arguments of the attorneys before reaching a decision on an appropriate sentence.

"This court has been doing it this way for as long as I can remember," Zambito said. "It's not just me and it's not just Mr. Friedman."

The attorneys then met with Zambito in chambers and then Housh met with his client. When the court reconvened the case, Housh informed the court that his client was rejecting the plea offer and he asked for time, before setting a trial date, to file motions and have those motions heard. He has 30 days to file his motions. A hearing on the motions is set for 2 p.m., July 2.

August 14, 2018 - 12:10pm
posted by Howard B. Owens in ray leach, antwan odom, batavia, news.

In a hearing to determine whether there is reasonable cause to charge Antwan Odom with attempted assault in the first degree for cutting his teammate, classmate and neighbor Ray Leach during a fight over stolen property Aug. 4 in Batavia, Leach said their disagreement was over $60.

Court documents indicate the 18-year-old Odom said Leach accused him of stealing marijuana.

Both teenagers agreed to fight, Leach testified in the preliminary hearing, also called a felony hearing. Things got out of hand, according to his version of the story, when Odom pulled out a small, yellow pocket knife and stabbed Leach 10 times.

District Attorney Lawrence Friedman said, “It was a fairly involved situation he explained for the judge. He was the only witness.”

Odom's attorney Frank Housh said no weapon was found on his client. He said that Odom is the victim in the case. 

“It was some remarkable testimony,” Housh said. “He testified that a few days before he went over to my client’s house, demanding he come out and fight him, he had sent a Facebook post telling him that he was going to end him."

City Court Judge Robert Balbick ruled there is reasonable cause to conclude that Odom committed attempted assault, 1st. The case will now be referred to the grand jury to consider an indictment.

Leach has not been cleared to play football. His stitches will be removed Monday but the Blue Devils' star running back could have nerve damage to his upper leg.

Odom, like Leach, was expected to start his senior year next month and once again be one of the key players on Batavia's football team. At the close of yesterday's hearing, his bail, set last week by Balbick at $50,000/$100,000 was reduced to $15,000 cash or $30,000 bond.

Story based on reporting by 13WHAM, The Batavian's news partner.

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