Waite: Attorney’s questions provide answers on defense’s likely strategy 

Nauman Hussain's defense attorney Lee Kindlon enters the Schoharie County Courthouse on the first day of his client's new trial Monday.

Nauman Hussain's defense attorney Lee Kindlon enters the Schoharie County Courthouse on the first day of his client's new trial Monday.

Article Audio:

Defense attorney Lee Kindlon wants jurors who are like his mother. 

Kindlon represents Nauman Hussain, the 33-year-old limo company operator accused of 20 counts of criminally negligent homicide and 20 counts of second-degree manslaughter stemming from an October 2018 crash that killed 20. And the attorney spent a significant amount of time Tuesday asking prospective jurors if they were more like his mother or his father-in-law.

Kindlon said his father-in-law has a ubiquitous set of pliers and an oil-stained rag, and is constantly tackling repair jobs. By contrast, Kindlon’s mother never completes her own handiwork, forever reliant upon professionals.  

During Kindlon’s first opportunity to question juror candidates, he asked each of the 16 individuals in the box at the time where they fell on the spectrum between his mother and father-in-law. 

With this, we got the clearest signal yet of where the defense is likely to spend the bulk of its energy once the trial begins in earnest. 

The defense wants jurors who will be sympathetic to someone who relies on professional help for repair work rather than a panel of DIYers, because the defense is going to do everything it can to place the blame of the crash upon Mavis Discount Tire in Saratoga Springs, which is alleged to have neglected necessary repair work and to have issued a state inspection sticker without completing the inspection. 

Kindlon’s questions about repair work coupled with unasked questions about would-be juror opinions toward the FBI signal the strategies the defense is likely and unlikely to rely upon during trial. In addition, by asking prospective jurors if they would withhold judgment should Hussain not take the stand, Kindlon seemed to suggest it’s unlikely we’ll hear directly from the defendant. 

What we’re likely to hear a lot about is Mavis. That’s why Kindlon’s questioning seemed to be searching for jurors who rely upon professional mechanics and may lack the technical knowledge to review the work. It’s likely the defense will say this is exactly what happened when Hussain brought the 2001 Ford Excursion stretch limo to Mavis in September 2016 and again in May 2018 for necessary repairs.  

“Do you rely on these professionals when they tell you they fixed it?” Kindlon asked jury candidates. 

The crash that killed 20 on Oct. 6, 2018, occurred following catastrophic brake failure as the limo careened out of control in Schoharie County while carrying 17 passengers, many from Amsterdam, celebrating a 30th birthday. Much of the case will come down to what Hussain knew at the time of the crash and what he may have chosen to ignore before allowing the limo onto the road. 

If the defense can convince just one juror that Mavis was dishonest or incompetent and is therefore to blame for the brake failure, their case is likely to be successful. 

Meanwhile, Kindlon did not specifically ask prospective jurors their opinions about the FBI or the federal government. This suggests the defense may steer clear of discussing Nauman Hussain’s father, Shahed Hussain, who owned Prestige Limousine. Shahed Hussain hasn’t faced criminal charges for any role in the crash, and many believe his history as a confidential informant for the FBI has given him a free pass. Coming into the trial, there was some question about whether the defense would want to bring up the FBI as a means of deflecting blame away from Nauman Hussain. But Kindlon’s questioning Tuesday indicated the defense seems to think Mavis makes for the best chance at casting doubt upon the charges against Hussain. 

Of course, little about this trial has really ossified. As of Tuesday evening, only five jurors had been selected. In total, 12 jurors and four alternates will be empaneled. The voir dire — when attorneys and the judge question potential jurors — will continue Wednesday. 

Alfred Chapleau, who teaches law at Albany Law School and The College of Saint Rose, and who worked more than two decades in the Schenectady County District Attorney’s Office, said not much is likely to change in terms of the big picture. 

Still, you never know. 

“My guess is that there are probably elements of the first line of questioning that will remain the same. But remember that voir dire is very much a personal approach, so sometimes a lot of the voir dire is determined by what some of the prospective jurors say,” Chapleau told me Tuesday. “The attorneys might adjust some of their questions based on what they hear from the responses from [state Supreme Court] Judge [Peter] Lynch’s questions, but if your question is would they radically change the questioning, I doubt it because I’m sure they have given a great deal of thought about what they are looking to avoid and what they are looking for.”

In other words, the defense is likely to move ahead with an emphasis on Mavis and further avoid the FBI.

For its part, the prosecution made clear it will be ready to defend Mavis’ work. 

“Does anybody have a bias against auto mechanics?” asked Fred Rench, a special counsel working with the prosecution. 

Rench also asked candidates if they had any issues with government regulations, suggesting the prosecution wants jurors who would find fault with someone who neglected elements of state oversight. 

“Even if the regulation is irritating, you still have to follow it, right? We can’t pick and choose which regulations we follow, can we?” Rench asked. “That’d be chaos.” 

A central element in the trial is likely to be a state DOT out-of-service sticker that Hussain allegedly removed from the limo — a piece of evidence prosecutors are likely to hold up as a sign Hussain neglected state orders and intentionally disregarded a known risk.  

As for how Hussain explains the sticker, we’re unlikely to hear from him. Lynch read prospective jurors a charge that they aren’t supposed to read anything into whether the defendant testifies. And Kindlon reiterated the charge during questioning, asking potential jurors if they truly will be able to withhold judgment should Hussain stay off the stand. 

Chapleau isn’t in the courthouse, but when I informed him about the charge and the defense’s emphasis, he said the meaning of that can be easily interpreted.

“I’ve got to believe they don’t intend to have him testify,” Chapleau said. 

Still, even if we never hear directly from Hussain, at some point, assuming the trial continues as scheduled, we will hear from the jurors. 

“The defense is looking for one juror, the prosecution is looking for 12,” Chapleau said, referring to the fact that verdicts must be unanimous. “The defense really only has to convince one person. The prosecution really has to convince 12.” 

That means Kindlon should be able to deal with 11 DIY jurors like his father-in-law, so long as just one juror prefers to hire professional repair workers like his mother.

Columnist Andrew Waite can be reached at [email protected] and at 518-417-9338. Follow him on Twitter @UpstateWaite.

Categories: -News-, Andrew Waite, Fulton Montgomery Schoharie, Opinion

Leave a Reply