Grand Jury dismiss felony assault case against teenager who ran against Paladino for School Board
By Frank Parlato
Austin Harig is perhaps best known as the 18-year-old student who ran against Carl Paladino for a seat on the Buffalo School Board, and was later charged with gang assault in the first degree, assault in the third degree, and harassment in the second degree, arising out of a fight at Harig’s home.
On February 2, the Grand Jury of the County of Erie “made a finding of dismissal” in the matter of the people versus Austin Harig.
Erie County District Attorney, John Flynn, through Amy J. Goldstien, an assistant district attorney, and chief of the Grand Jury Bureau, informed Harig, in a letter dated Feb. 2, that, “after reviewing the evidence against you … an Erie County Grand Jury has dismissed the case against you.”
Harig’s lawyer, James Ostrowski told Artvoice he will be filing a notice of claim against the city on behalf of Harig. Ostrowski said, “It was a false arrest and a false charge.”
Both Ostrowski and Harig said that a story in Artvoice published in September was at least partly responsible for changing the momentum of the case and helped lead to the dismissal.
Shortly after Harig’s arrest, Artvoice looked into the case.
Police said Harig, who lived in an upper apartment on Zittel St., was a nuisance in this quiet South Buffalo neighborhood. His motley friends came and partied all night.
Harig was arrested twice after he lost the school board election to Paladino last May. On June 8, he was arrested for the first time.
A minor himself, Harig was charged by police with misdemeanors – first-degree unlawfully dealing with a child and second-degree criminal nuisance – for allegedly providing alcoholic beverages to three minors – one was 18 and two were 17 – and allowing them to smoke marijuana in his home. Harig pleaded not guilty before City Court Judge James McLeod.
After several adjournments, prosecutors were unable to produce physical evidence of alcohol and marijuana which police should have seized at the time of the arrest. Police were unable to produce drug or sobriety tests to indicate the minors had consumed drugs and alcohol which Harig was said to have provided.
The prosecution was also unable to produce supporting depositions from the teenagers since all three claimed Harig did not give them alcohol or allow them to smoke marijuana. Judge MacLeod dismissed the case against Harig.
Police then brought another case against Harig. The charge was that a 14-year-old girl drank alcohol in the 18-year-old’s apartment, which he shared with several roommates. This went to trial before Judge McCleod under youthful offender status. Again police failed to provide evidence. Judge McCleod acquitted Harig.
“Every time they arrested me,“ Harig said, “I’d be paraded around like a circus animal to the media and humiliated. None of their charges held up. But police seemed angry with me. They started driving by my house several times a week in the late hours of the night and early morning to shine flashlights through my windows. When I confronted them after being abruptly woken up they cited a disturbance in the neighborhood and said they were just checking up on me.”
Harig’s roommate, Dominique Deane, 24, said police regularly stopped at their residence, knocked on the door, and shined flashlights up to his windows at night.
At his door, officers told Harig they knew who he was and laughed, she said.
Harig said officers made disparaging comments about Hillary Clinton stickers he hung on his door, referring to him as “the Hillary supporter”.
On August 25, a number of people, motely and rambunctious, visited Harig and his roommates.
Deane told Artvoice that Brett Garlock, 25, was one of her guests. Inebriated, he began flirting with her and another roommate, Jennifer Pahl, 24.
Pahl told Artvoice that “Brett grabbed my butt and I turned around and said ‘don’t do that’ and he pushed me and that’s when the guys started fighting.”
According to several witnesses, a man named Giovanni threw the first punch. Then Tyler Lampert and a man named Deetho joined in. Brett was joined by his cousin, Zach Garlock in defending the attack.
Jeremy P., 18, a witness, said, “We were all just hanging out and the roommates started the fight. and then I see Austin [trying to] break it up. They started fighting down the stairs and it was not good.”
The fight spilled outside to the porch. Zach Garlock was knocked out. Brett Garlock was beaten unconsciousness.
Jeremy said, “Austin was trying to help the one guy out.”
Harig told a neighbor to call 911.
Harig described the scene, “Brett was bleeding from his nose and mouth and in danger of choking on his own blood. I put him on his side and patted him on the back so he would cough up some blood because he was starting to choke. While we were waiting, Lampert [lone of the assailants] came down and tried to stomp on Brett’s face, but Jonathan Tyner stopped him.”
“I was the only one who stayed with Brett,” Harig continued. “I said, ‘stay with me, Brett you’re going to be ok.’ I stayed until the cops got there and, as soon as they arrived they started yelling at me, calling out my name ‘Austin Harig.’”
Police approached the injured man and found Brett Garlock, 25, lying at the foot of the porch, suffering head and body injuries, bleeding from a head wound. Police reported that they thought Garlock may have had a broken neck, a head fracture and fractured or missing teeth. He was taken to the Erie County Medical Center by ambulance.
Lampert, the principle assailant, came down again and sat on the porch. He had blood on his hands and boots.
Deane said, “The police were asking us questions. There was around 10 people on the porch and we were all saying the same thing. ‘Austin was trying to get everybody to stop fighting and calm them down. After the fight, he was at the bottom of the stairs trying to help Brett.’ The police had us all on the porch and everyone said the same thing.”
“Though I knew that the police officers and myself had some differences with each other,” Harig told Artvoice, “I had hoped that the sense of getting justice for my injured friend would prevail. There were about 10 witnesses to this fight, including neighbors, roommates, and friends of the victim. The people who committed the assault were also present. Their hands, clothes, and shoes were marked with blood. In what I can only describe as the biggest act of dishonesty I have seen, police ignored the word of neighbors, roommates, friends and me telling them who committed this crime. They refused to take statements from anyone, and when inspecting the men with bloody hands and boots, they asked them how they ended up like this. To the reply of ‘I don’t know’,” the officer responded ‘Okay’ and proceeded to let one of them walk away.
“My friends and I were outraged, and we shouted at the police that he was one of the people who did it. We were baffled as to why he was allowed to walk away. It was then that I was told to stand up. I was handcuffed much to the bafflement of everyone.
“Police shouted to the remaining people, including the two remaining criminals, to go into my house or face arrest as well. They did. But Jonathan Tyner, the man who stopped Lampert from stomping on Garlock’s head, he did not go inside, but protested what the police were doing to me and he was arrested and charged with obstruction and resisting arrest.”
Harig continued, “As I protested and demanded to know why they were doing this to me, I will never forget the laugh and spit that hit my face as Officer John Bannister of the Buffalo PD said to me, ‘We got an affidavit, Harig!’”
It was true. Zach Garlock, cousin of the victim, who had joined the fight to stick up for his cousin, had signed a statement that Harig beat up Brett Garlock.
Artvoice found and then contacted Zach Garlock. When asked about the incident, he told Artvoice, “I want to recant my statement about Austin I made to the police. He never hit anybody.”
Why did you tell police Austin hit Brett?
“Because I was coerced by the arresting officers,” Zach Garlock said. “They wanted me to incriminate Austin Herig. My statement to the police was under a false name. I said I was Zach Drake. My real name is Zachary Garlock. Austin did not get personal in the fight. The police asked me if Austin did it and they wouldn’t let me see my cousin unless I told them so I said Austin did it.”
Why did you lie?
“I was scared. I had warrants against me,” Zach Garlock said.
Deane told Artvoice. “Everyone was shocked that the police insisted on arresting Austin. There were at least nine witnesses telling the police that Austin had nothing to do with the fight and everyone told the police who actually participated in the fight.”
Pahl said, “Austin didn’t have no role in the fight. He was trying to break it up. I told them not to arrest him. I said Austin didn’t do anything. The cop told me to get your shit and get out of the house, and I am standing outside and they are arresting Austin. The police were yelling at everybody in the house and said that Austin has crazy parties all the time, which he doesn’t.”
Artvoice contacted neighbors, like Deanna Nichols, who said she was outside when police arrived.
She said, “All Austin was doing was giving some medical attention and the cops got really rough with him for no reason at all. They treated him like garbage. I seen it right across the street from my neighbor’s porch.”
Another neighbor, Mary Lee Nowocin, 38, said, “I seen the cops were nasty with Austin when they were outside. He wasn’t getting smart or nothing. They were rude to him. They said he was a nuisance in the neighborhood. They were trying to say he was in on the fight. Austin said he wasn’t. The other kids in the house were in the fight. Austin is not a fighter. He stays to himself. He doesn’t fight nobody. They just like to harass him. They like to stop him and pester him for no reason.”
But Harig’s ordeal had only begun.
He was taken in handcuffs and delivered to the Erie County Holding Center.
Harig described what happened to him next:
“When I first walked into the Holding Center, I heard blood curdling screams that I can only equate to that of tortured animals or a mental institution. I was told this was normal. Resigned to my fate, I made an effort to learn about the people who I was housed with in jail. Why were they there? Did they have families? Were they innocent too? I was surprised to see people had hopes for their lives, dreams of education and success, of getting out of their troubles and leading happy lives. I was sad to see kids as young as 18 locked up for petty crimes, who longed for education yet couldn’t get it due to the conditions of being in jail and the services there. I met people who wanted to be doctors, lawyers, psychologists, businessmen, chefs. Someone wanted to be an author, and spent most of the day writing. Yet, these people, including myself, were treated as animals by corrections officers. Given, it is the job of corrections officers to treat people as criminals, but I found it particularly inhumane in our Erie County facilities.
“To say that the Holding Center is disgusting would be an understatement. It was the most unkempt and disgusting place I ever stepped foot in. I remember seeing mold and collapsing ceilings in many parts of the facility, patched up with sub-par workmanship and sometimes leaking water. The toilets were abysmal. Many were backed up and the smell was putrid.
“I was an especial victim, as I will now relate. The Prisoner’s Handbook clearly states that people should be issued three pairs of underwear. I was given only one for my entire stay, despite submitting three pink slips to request the additional pairs I was entitled to. I never received a response. As a result of these subhuman conditions, I contracted an infection fairly quickly and required medical attention. I was given sub-par antibiotics and suffered for almost a week before my repetitive complaints got me stronger ones. By the way, while they gave me the medicine, they still hadn’t issued me the underwear and if I didn’t go through the humiliation of trading one of my meals for a new pair from a fellow prisoner bought through commissary, I would have suffered further.”
While still in jail, because of the high bail originally set, based on the gang assault charges, Harig was assigned counsel by the court and criminal defense attorney, Daniel Grasso, was assigned to him.
Grasso attended the felony hearing before Judge James McLeod. Harig was taken from jail to attend hearing also.
Grasso said that at the hearing, “witnesses testified Austin didn’t do it. The victim never accused Austin. The victim denied it.”
But he said he was not surprised that Judge McCleod held it over for the grand jury since these were serious charges.
But Harig said he was shocked at the comportment of the Assistant District Attorney Danielle D’Abate.
Harig said, “During my felony hearing, people went up and testified to the judge that I had not done anything. A person I didn’t even know went up and testified. The assault victim himself testified he had no recollection of me ever hitting him. I was left with a screw face as the prosecutor methodically tore into these innocent witnesses, telling the judge not to consider their experiences valid because they ‘probably couldn’t see what really happened’ which, in her mind, was me, the 5’6”, 18-year-old beating the pulp out of the 24-year-old, 6’5”. former Marine. It was then that I realized these people were really trying to keep me in jail for a crime I didn’t commit.”
One good thing came out the hearing. Grasso was able to get the bail reduced. But Harig still couldn’t raise it and he was returned to jail.
Harig said, “I begged my family to gather the money to get me out and they were able to scrape it together and I was set free. But I will never forget the faces and the voices of those locked up in those subhuman conditions, who need help from their fellow citizens to rehabilitate, not to be treated like animals.
“I was condemned still in the court of public opinion. Every news station reported on my arrest as if I was a criminal, making no effort to contact the people the police listed as witnesses to find out the real story which was clear as day.
“When the Artvoice did this, they found that my arrest was false and frivolous and published the article quoting all the witnesses and that changed things for me.”
When Harig got out he found he lost his apartment. His computer and cell phone were stolen. He had no job. He never took welfare and was not about to start. Meantime he was facing 20 years.
Harig chose to take a bold step. He would testify before the grand jury.
Grasso remarked that in his career he recalled only “a handful of clients that went before the grand jury.
In this case Austin wanted to. He had the right and he not only testified, but gave names of witnesses that he said would ultimately say he didn’t have anything to do with the assault.”
The Harig case had been handed ov
er with the changing of Erie County District Attorneys from acting District Attorney Michael Flaherty to newly elected District Attorney John Flynn on January 1, 2017.
Flynn had stated during his campaign that he had in effect a decided antipathy for prosecutorial misconduct and police abuse when he promised an inquiry into the death of Richard Metcalf who died in the Erie County Holding Center.
As for Harig’s case, Assistant DA D’Abate must have realized at some point that Harig was not guilty.
She could have likely indicted him since grand juries are notoriously enfeebled by the people’s lack of understanding of their historic role of independence, as a watchdog, and shield against government overreach and malicious prosecution. It is said that the grand jury room is the prosecutor’s playground.
Flynn’s office led a grand jury to dismiss the charges.
Some prosecutors in this community would consider this a waste of prosecutorial resources. Better to indict and get the likely statistic, since most innocent defendants will take a plea deal anyway.
In the end, of course, by some people’s calculations, justice was done. Harig’s charges were dismissed.
And Harig retained Ostrowski, well known for perseverance, who will sue the city and bring every tidbit of fact about every policemen at the scene out into daylight and probably collect for Harig a substantial sum of money for his false arrest.
With extra doses of sunlight, maybe the consequences will be greater than some police men and women originally thought when they laughed and arrested Austin Harig knowing he was innocent.
But will it be enough to undo the injustice, and the harm?
Harig said, “I will forever be regarded as a person who was arrested for a terribly violent act. People get condemned in the media for crimes they did not commit every day. Police make mistakes and hold grudges like every other person. There needs to be a check on their power. That’s one of the reasons I am suing.
“But most of all, I feel sorry for the assault victim, Brett. To this day, the people who attacked him are free. They will likely never face justice. He still suffers from what happened to him that night. I apologize to him that our police officers failed to get justice for him and fulfill their duty to him as a former member of the military in favor of pursuing their differences with me. I apologize to those in the Holding Center who suffer every day in subhuman conditions and animalistic treatment who have truly done nothing wrong but were in the wrong place at the wrong time. I apologize to those whose job opportunities and dreams have been tarnished by false police and media reports, I too have to carry that burden. Lastly, I apologize to the people of this city. I’m sorry that our police officers who are supposed to protect us, solve our crimes, help us, and put criminals behind bars prefer to spend their time arresting people they have personal vendettas against, giving those who know how to navigate the system, but commit crimes, passes, and using people’s beloved animals as target practice in wrong-house raids based on the word of informants.”
Perhaps the worm has turned, and the creepy laughter of sadistic authority will become the shrill cry of fear when the bully turns his face to the mirror and see that his color of power only masked the truth that he is a coward.