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.
