How do you prosecute shootings when the victims won’t cooperate? DAs explain their daunting task as Buffalo gun violence soars

Buffalo

Gun violence is at epidemic levels in Buffalo, and for this scourge there is no vaccine. Heaven knows, the people in law enforcement are trying. But John P. Feroleto admits it can be a difficult, frustrating endeavor.

Feroleto, a North Buffalo native, is an Erie County assistant district attorney. He’s the head of the county’s five-person “Tactical Precision” unit that was created 10 years ago to deal with county gun crimes that do not find their way to the homicide unit.

“Any non-fatal shooting or gun case, his office does it,” said DA John Flynn, who joined Feroleto in his office on Wednesday for a half-hour chat on the surging gun violence and how tough it can be to prosecute the shooters.

How tough? On a weekly basis, members of the various law enforcement agencies (city police, county, U.S. attorney, et al) gather for a Shoot Review, where they share information on shooting incidents from the previous week. 

“They do a paragraph about each one,” Feroleto said. “I would say with 75 percent of them, it’s ‘Shooting victim drove himself to the hospital, told police he didn’t know who shot him, and he didn’t know where it happened.’”

Feroleto and Flynn couldn’t help but laugh when mulling a case that daunting to prosecute. Sometimes in their line of work, a sense of humor comes in handy. But they realize it’s no laughing matter. People are getting hurt or killed. Communities are being terrorized. And it only seems to be getting worse.

Erie County DA John Flynn said his office solves between 20-30 percent of homicides. (WIVB)

Shooting incidents in the City of Buffalo doubled from 2019 to 2020, from 153 to 300. Killings from firearms increased from 37 to 47 over that year. It got worse in the first five months of 2021. As of last Friday, there had been 39 gun homicides in 2021 — more than in all of 2019 — and 122 non-fatal shootings.

So we’re on pace for more than 90 shooting deaths this year, more than twice what it was two years ago. There’s no single reason why, although the pandemic and the seemingly ceaseless flow of illegal guns into the city — and into the hands of young, primarily Black gang members — are two of the major reasons.

One thing that’s clear is it’s becoming harder to solve these cases and bring the perpetrators to justice. As the Shoot Review anecdote suggests, a lot of victims don’t want to cooperate with the police.

“Most cases are prosecuted based on a witness identifying someone that is the perpetrator,” Feroleto explained. “There is reluctance on a number of different levels for those people to participate in the court process. If they’re involved with the police, there may be reluctance to have people learn that they’re following through with the court process, for fear of retaliation.”

Lacking a credible witness, it’s hard to make a case. That’s why clearance rates are so low in Buffalo and similar urban areas around the country. Through the end of March this year, fewer than 10 percent of the shootings were solved — five out of 63. 

Flynn said his office solves between 20-30 percent of homicides. The rate of solving non-fatal shootings is much worse, around 6 percent. The clearance rate around the country is typically low for non-fatals.

“It’s terrible,” Flynn said. “And the main person who’s reluctant nine out of 10 times is the victim. He knows who shot him! It’s right in front of him. But he’s not telling.”

Fear of retaliation is a problem. So is a loss of trust in police, which was only exacerbated after the George Floyd killing and summer of protest in Black communities. 

“It’s always been a problem,” Feroleto said of the eroded confidence in police. “I would say it’s getting worse. That’s just an added level to the complexity to the prosecution of these cases.”

But the police want to solve these crimes. And as Flynn pointed out, the people in inner-city neighborhoods want the criminals caught, too, even if they’re afraid to come forward for fear of reprisal from gangs. He said they’re not looking to defund the police.

“Absolutely not,” said Flynn, who became DA in January 2017. “This notion that the African-American community is a monolithic group that all think the same is categorically false. There are different beliefs and subsections of the African-American community who have a different view of criminal justice than some of the progressives and activists who are the loudest and who make the news the most.

“You go into any African-American church on a Sunday morning all across the East Side of Buffalo,” Flynn said, “and you interview those people about criminal justice, and they’re going to tell you ‘We want the police there; we want our streets safe; we want the criminals behind bars.’”

Joseph Granaglia, the deputy commissioner of the Buffalo police, concurred. “Most neighborhoods affected by gun violence want a good, solid police department,” he said at a Tuesday press conference on gun violence in the city.

“We want a better-trained police force,” Granaglia said. “We want more professional police officers and the way to have that is through training. We’re bringing in more training, new improved training, whatever we can do to build on that.”

But the training won’t help if citizens won’t cooperate. That explains why law enforcement types — including Flynn, Granaglia and count Sheriff Timothy B. Howard — were standing under a billboard on Genesee Street on the city’s East Side on Tuesday to announce an initiative to prod witnesses into helping the cops solve these crimes.

They’ve added 11 new billboards for the “Stop The Violence” campaign. People are urged to get the Buffalo Tips app or call 867-6161. The county is giving $80,000 to Crime Stoppers to offer rewards for people who anonymously provide tips that lead to arrests on homicide shootings and illegally possessed guns. 

The guns are a huge part of the problem in a nation in which there are more guns than citizens, and many of them find their way into the hands of young males in our inner cities. Feroleto said it’s gun possession that results in many arrests, not the actual shootings.

“I think we try to be creative,” Feroleto said, “to find ways to be able to prosecute cases without the victims if they’re reluctant. John has been very good about giving us the leeway to do this. Let’s say someone’s shot and won’t cooperate. But we can still prove who did it, maybe through video or some other evidence without that person coming in. 

“Many times, we can still prosecute that person for criminal possession of a weapon, which is still a very serious charge. If convicted, they would face a minimum sentence of three and a half years up to 15 years. It’s a state prison sentence.”

Feroleto said his office opened up 75 new files on gun cases in May, the most they’ve had in five years. That’s criminal possession of a loaded weapon in the second degree. 

“The reality is, no matter how many guns we take off the street, we can’t control guns coming to New York from any number of states where it’s easier to get your hands on a handgun,” Feroleto said.

He also cited an “exponential growth” in ghost guns. “What is being sold is essentially the bottom half of the gun without a serial number on it,” he said. “Because it’s a gun part, you can get it, and the only thing you have to do is drill the holes in it basically to affix the other pieces to it.”

Guns are everywhere. Granaglia praised the DA’s office for aggressively prosecuting gun offenders when victims won’t cooperate. Flynn said videos and DNA are two ways in which you can build a case without the witness’s cooperation.

But it’s difficult, and Granaglia said almost 20 percent of all shooting victims in Buffalo this year are “either on parole, probation or have a pending gun charge.”

Erie County assistant district attorney John P. Feroleto

You could get cynical amid all these challenges. If you’re batting under .100, as the DA’s office is on non-fatal shootings, it can become discouraging. And when the phone keeps ringing in the middle of the night with news of another shooting, you can get worn down.

“There’s plenty of work,” Feroleto said. “We’ve got a good group of guys. We realize if we can’t make a case, we can’t dwell on it, because there’s another case we can make and we’ve got to focus on getting the people off the street that we can who are involved in gun violence.

“Most people involved in gun violence get on our radar. Once they start, they don’t stop until they’re dead or in prison. But to be able to engage in gun violence, they generally have to be carrying an illegal gun on them and eventually they get caught. 

“But as soon as we catch one,” Feroleto said, “there’s another one who is willing to take on that role and engage in the same type of violence.”

Flynn is passionate about the issue. He worked closely with the late Neal Dobbins, an expert on the trafficking of illegal guns who started MVP, a support group for parents who lost children to gun violence. Dobbins died last month of complications from COVID-19.

Dobbins, who arranged for the U.S. attorney to travel from New York City to Buffalo to discuss ways to combat gun trafficking, will be difficult to replace.

“What Neal wanted to do, the feds need to take the lead on that,” Flynn said. “The interstate trafficking of guns is a federal crime, not a state crime.”

The pain and loss, of course, are local. Flynn has spent a lot of time in East Side neighborhoods, listening to people’s stories and how the lives of young males get twisted and often snuffed out in senseless street violence.

“Going back to your original question about the cynicism, you have to remember, there are two victims for these crimes,” Flynn said. “The person who got shot, obviously. But victim number two is the community, the people who live in that neighborhood.”

Flynn said he has sympathy for the victims. “But a lot of times, the victims are shooters, the shooters are victims and there’s an interchange. It goes back and forth.

“I have an equal amount of concern for the second victim, and that’s the neighborhood,” he said. “From that standpoint, I don’t get cynical. Because I want to help that neighborhood. I want to help that community because they’re the victims just as much as the guy who got shot. These neighborhoods and communities don’t have the luxuries that my neighborhood has. 

“They’re economically distressed. They’re poor. If you put a map of Erie County up here on the wall and you put a pin at every shooting that took place, those pins are going to congregate on the East and West side of Buffalo. They’re not going to congregate in Tonawanda and Clarence and East Aurora.

“That community is economically disadvantaged to begin with. Now they have to deal with the violence. Yeah, it pisses me off.”

Still, the people in law enforcement retain hope. A few years ago, when they began the Stop The Violence campaign, the incidents of gun violence began to drop. They seemed to be making headway. Then came the pandemic and the violence spiked. 

“There’s one homicide that happened two years ago that has spun off probably 20 to 30 shooting incidents,” Feroleto said. “That one was cleared, but all the other shootings are under investigation. We’re trying to get one good arrest on the people central to it. “It’s just … it’s not always easy.”

Jerry Sullivan is an award-winning journalist who joined the News 4 team in 2020 after three decades as a sports columnist at The Buffalo News. See more of his work here.

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