A follow-up on the People v Norman J. Michaels reversal: Judge Lambert had a chance of not allowing the case to go to trial, but instead chose to badger a veteran defense counsel to favor his former boss, the Otsego County DA

This is a follow-up blog about the reversal in People v. Norman Michaels in the Otsego County Supreme Court - after I initially reported about this case here.

I received some documents from the case, and am starting to publish them here, with comments.  They do warrant public attention.

Today I am publishing portions from the pretrial oral conference, with motions by defendant's counsel Terence Kindlon of Albany, New York.

Terence Kindlon has been practicing since 1974, for 30 years by the time of the trial:

He was already targeted by the Appellate Division 3rd Department's disciplinary system for doing his job as a criminal defense attorney.

In 2012 Mr. Kindlon was sanctioned by the licensing court for reviewing and photographing "without prosecution's permission" documents on prosecutor's table during a recess in a criminal trial.

Of course, nobody wanted to mention in that censure decision that the prosecution cannot have anything on its table by the time of the trial that was not given to the defense, and Mr. Kindlon's actions were not only legitimate, but desirable.

The 3rd Department, nevertheless, sanctioned Mr. Kindlon, following its policy targeting civil rights and criminal defense attorneys and endorsing any misconduct a governmental attorney may engage in.  

Of course, Kindlon publicly accepted the unfair discipline - possibly, likely to prevent further harassment from the disciplinary authorities.

Here is Kindlon's picture, posted in the article about his discipline -and about his successful defense in a murder trial.  The picture clearly shows that Kindlon is not, let's say, a spring chicken.  He is an elderly individual, and I know that he is also an Army veteran.

That will be important for this blog.

Here is what happened before the trial in People v Norman J. Michaels.

Mr. Kindlon made a pre-trial (omnibus) motion.  

Judge John Lambert granted review of grand jury minutes, granted review (by himself, in secrecy, without showing the defense attorney), and said that everything in the Grand Jury minutes is appropriate.

Yet, based on an additional motion from Mr. Kindlon, Lambert later on dismissed count 4 of the indictment, insurance fraud, because at the time of the alleged act there was no such criminal statute.

Obviously, Lambert knew about it when he was reviewing grand jury minutes.

Obviously, Lambert knew that if there was no such crime at the time of the alleged conduct, while endorsing it as legally sufficient to go to trial - and, remember, the reversal was on the law, not on the facts of the case, meaning that Lambert screwed up since the very beginning of the case, he should have dismissed it from the very beginning.

Moreover, the remaining charges were for grand larceny.  Mr. Michaels was an insurance agent who received a commission for obtaining insurance policies.  According to Mr. Michaels, the insurance company did not void the insurance contracts with policyholders and kept the money.  According to Mr. Michaels, no demands were made for him to return the commission.

Under these circumstances, no larceny or grand larceny could be charged.

The prosecutor knew it.  The judge knew it.  The prosecutor John Muehl was the former boss of the judge who was Chief Assistant District Attorney under John Muehl until his election in 2008.

So, the judge decided to play dumb and to play his usual game - "move up or move on".

Here is how he did it.

This is the conference before trial.

Otsego County already expended money to bring in a jury pool, paid per diems to potential jurors, potential jurors already lost their business opportunities, hours of pay in employment, had to arrange for daycare for their kids etc. - went through a lot of expense and inconvenience to be there in court.  Unnecessarily.

Yet, the court still had a chance to save face and dismiss the indictment right there.

No, Judge Lambert decided to play dumb and play into the hands of his former boss John Muehl, who also played dumb and pretended that he was acting in good faith and not, as he was, catering for a corporation that apparently had, for some reason, a grudge against Mr. Michaels.

If the insurance company had a grudge, it could have sued Mr. Michaels.  That did not happen.  Instead, the insurance company decided to save expense of litigation and to shift it upon the Otsego County taxpayers, who are already hurting to the point that their governmental services are cut because of budgetary constraints.  

The judge knew it.

The prosecutor knew it.

Neither cared.

So, here is the pretrial conference.

Mr. Kindlon, quite logically, states that if there cannot be a crime of insurance fraud, there cannot be a crime of a scheme to defraud based on insurance fraud.

Lambert agrees with his former boss who tries to save his case, and repeats like a parrot that it is a "separate crime".   Yet, since the "separate crime" is based on facts that do not constitute a crime, it must be dismissed the same way as the count 4 was.  

But ok, Lambert denied that oral motion.

See what happens next.

Mr. Kindlon then uses Judge Lambert denial and asks for a limiting instruction to the prosecution.  If that is a separate crime, please, do not use terminology from the dismissed crime in any way, describing the remaining "separate" criminal charges.

Mr. Kindlon's position and request is clear as day.

See what happens when Mr. Kindlon makes that request.

The prosecutor acknowledges that, if he is not allowed to play with words and present the already dismissed count of the indictment in a paraphrased form, he will be unable to prove other charges, and the indictment will have to be dismissed.

And that is where Lambert should have put his foot down - and dismiss the indictment right there and then.  After all, that is what the Appellate Court did in the future, on the law, but only after Mr. Michaels who is also not a spring chicken, had to undergo the stress, indignity and expense of the criminal jury trial with wild publicity, undergo loss of his insurance licenses in many states as a result of the conviction that did not have to happen, and more publicity.  Mr. Michaels, as I understand, was sent by Lambert to jail after the verdict, was denied by Lambert bail pending appeal, so Mr. Michaels had to, once again, undergo unnecessary stress, effort and expense to apply to the appellate court for bail...  Only to arrive to the same result as Lambert had to do, as his duty of County Judge dictated, and dismiss the indictment at the time of arraignment, at the time of first and second pretrial motion and at the time of the pretrial conference and the "moment of truth" when John Muehl said that "to say that [Muehl] cannot refer to this as being a fraudulent act in connection with insurance, then you might as well dismiss the indictment now because [Muehl couldn't] prove any of [his] charges".

Mr. Kindlon modestly said that he agreed to the dismissal at that time :).

Yet, Muehl carried on and stated that to dismiss an indictment to him is "an absurd request" and that "he does not see any basis for it whatsoever", even after the basis was squarely laid down by Mr. Kindlon.

And Lambert immediately sides with Muehl.

Kindlon diplomatically says that he does not understand the judge's ruling.  Of course, he does, he sees that the judge is biased, but he simply tries to get the judge to explain himself.

I would have made a motion to recuse at this point.  Many attorneys are afraid to make such motions.  Kindlon was just sanctioned at that time, and could be afraid to make motions that could land him back in the disciplinary court, and there are precedents when attorneys were disciplined as if for misconduct, for doing their duty for their clients and making motions to recuse biased judges.

Lambert states what he allegedly thinks Kindlon's request was - incorrectly.

Kindlon corrects Lambert.

Lambert claimed he understood correctly because he "wrote it down".

Lambert goes further and states that John Muehl has remaining two counts of "larcenies".  In fact, they were grand larcenies.  

And says that "they can certainly go through with that" - even while Lambert knows that a larceny is unsustainable against an insurance agent where the insurance company did not rescind the insurance contract under which the insurance agent drew his commission, did not return to policyholders their money and did not ask for Mr. Michaels' commission back.

So, there was no basis to charge Mr. Michaels for larceny or grand larceny.

Yet, Lambert denies Kindlon's request to preclude mentioning of insurance fraud (already dismissed) in connection with the larceny counts (unsustainable from any point of view), in order to allow his former boss John Muehl to have a chance to win those unsustainable charges and obtain a wrongful conviction against Mr. Michaels.

Kindly still does not give up and continues to fight for his client.

Kindly now starts to call a spade a spade and tells Lambert that Lambert is misinterpreting Kindlon's requests.

Lambert, who is nearly twice younger than Kindlon and certainly not as experienced in criminal trials as Kindlon is, treats Kindlon as an errant schoolboy.

Now, this exchange shows how important it would have been to have a videotape of the trial and all conferences in Lambert's chambers.

Kindlon has to verbalize Lambert's intonation and, likely, body language to  protect his client's interests.  He says that Lambert gave him "a sarcastic look".   Appellate court, that has, by its jurisdictional statute, authority to review all facts in the court below anew (de novo), usually "defers" (rubber-stamps) factual determinations of the lower courts because the lower courts has the opportunity to see the body language of witnesses.

The same refers to the body language of the judges.  

It would have been a lot easier to show bias if a video coverage was available.

The "deference" was, probably, a reasonable idea when video coverage was not as cheap and easily available as it is now.  Now, anybody with a smartphone can record the whole trial without a problem, to preserve evidence for appellate review, and to continue to prohibit the video coverage, and at the same time defer to "trial court factual determinations" BECAUSE video coverage is prohibited is an outrageous violation of litigants', especially criminal litigants', constitutional rights.

Attorneys are usually afraid of discipline and do not verbalize judicial body language for the record, as Mr. Kindlon said, commenting on Lambert giving him "a sarcastic look".

Lambert obviously knew about Kindlon's sanction and likely did not expect such a bravery.  Yet, bravery happened.

And Lambert lashes back at a nearly-70 year old veteran trial lawyer whose only "fault" was that he was diligently doing his job:

• he wrongfully accuses Kindlon of saying an "untruth" to the court, setting him up for a new disciplinary violation;
• he wrongfully accuses Kindlon of "badgering the court", setting him for yet another new disciplinary violation;
• he wrongfully accuses Kindlon of incompetence, not making it clear what he wants in his motions - repeatedly.

All of that is necessarily happening in the presence of Mr. Kindlon's client who is present at all pretrial conferences immediately preceding the felony trial, so the judge is actually badgering Mr. Kindlon, humiliating him in front of his client before trial and is trying to show to Mr. Michaels that his attorneys is not worth going to trial with.

All of that Lambert is doing knowingly, playing into his former boss's hands, on absolutely worthless charges.

The purpose is very clear - to intimidate Mr. Michaels and coerce him into a plea bargain, with a waiver of his right to appeal of the legal insufficiency of charges.  It worked with so many other scared criminal defendants.  

Luckily for Mr. Michaels, he had the courage to proceed to trial, and his attorney Mr. Kindlon had the skills to handle the case in such a way that he made a record upon which a reversal became possible.

Kindlon keeps acting professionally and simply states that he never meant to offend Lambert.

And against all odds, against the unfair resistance of the judge, against sarcasm, harassment, humiliation and badgering by Lambert in front of Kindlon's client, Kindlon continues to do his job and repeats that, as difficult as such a decision may appear to the court, the prosecutor should be precluded from using terminology from the dismissed count in proving the remaining counts.

And diplomatically states that he hopes NOW it is clear - even though what Kindlon was asking for was exceedingly clear from the very beginning.

Lambert arrogantly and patronizingly tells Kindlon that Lambert has actually been "very patient" with Kindlon.

Then, Lambert denies Kindlon's request and orders the worthless case to proceed to trial.

What happened next is the trial, the conviction, the sentencing, sending Mr. Michaels to jail, denial of bail, obtaining bail pending appeal from the appellate court - and reversal on the law, with dismissal of the indictment.

In a case where criminal charges 

(1) should never have been brought by John Muehl;
(2) should have been tossed by Lambert before trial.


This case is a case study in prosecutorial and judicial misconduct and "how to obtain a wrongful conviction" - as well as "how to intimidate and humiliate a criminal defense attorney", or, as judges, police and prosecutors call criminal defense counsel - "those big-mouth attorneys".

Yet, Kindlon fought for his client against all odds - and in the long run he was right, and he won.

Mr. Michaels was lucky to have Kindlon.

Mr. Michaels was lucky that the Appellate Division was not asleep at the wheel this time, as it usually does, and that the Appellate Division reversed the conviction and dismissed the indictment, even though not exactly on the same (and on the most easy) grounds upon which it could have been dismissed."

The problem remains that - Mr. Michaels cannot return time, effort, health, reputation, money lost in defense against these worthless claims.

The jurors cannot return time spent during that trial and inconvenience and expense it cost them.

The county and its taxpayers cannot redeem money unnecessarily wasted upon this trial and on the work of the appellate court - wasted from the point of view that those proceedings did not have to become needed, and to utilize human and other resources of two courts, had Lambert done his job and tossed the case from the very beginning.

And the main problem remains that both Lambert and Muehl still retain their position and will likely continue on their merry way, engaging in the same misconduct in other cases.

After all, not all people have the money for a private attorney of the caliber of Mr. Kindlon to fight for them like Mr. Kindlon did for Norman Michaels.

And not all convicted criminal defendants have good attorneys on appeal.

And even with good attorneys on both levels, the appellate court does not always do its job and listens, because over 95% of criminal convictions are affirmed on appeal - as a matter of an unwritten policy.

And Lambert and Muehl are shamelessly using people's lack of resources to drum up wrongful convictions.

As Lambert and his court attorney Mark Oursler tell people complaining of Lambert's errors:

Move up (appeal) or move on (suck it up).

No, Judge Lambert. 

You were elected to actually do your job, not shift it to the appellate court in the hope that they will be asleep at the wheel and rubber-stamp your decisions.

You were actually elected to faithfully enforce the law.

And if you do not want to do it, maybe, it is not the right job for you?