WEIGHING IN – Anyone who thought Schoharie County District Attorney Susan Mallery would defy expectations and hold her own against Nauman Hussain’s high-powered defense team got their wake-up call the first day of the trial.
That’s when Mallery’s scrambled preparation, which had already been called out earlier in the day by state Supreme Court Justice Peter Lynch, became abundantly clear.
The moment came after the prosecution questioned one of its first witnesses, Lawrence Macera. He was the original owner of the stretched 2001 Ford Excursion SUV that crashed Oct. 6, 2018, killing 17 passengers, the driver and two bystanders at the Apple Barrel Country Store at the intersection of state routes 30 and 30A in Schoharie County. At the beginning of cross-examination, defense attorney Lee Kindlon asked Macera a few identifying questions and then asked if he’d ever pleaded guilty to a felony.
Kindlon soon revealed that he discovered — through a quick Google search, no less — that the witness had pleaded guilty to stealing $54,000 in retirement savings from a railroad company for which he had worked. The information hadn’t previously been shared. Neither had the criminal history of additional possible prosecution witnesses, a fact that came to light the following day, prompting Lynch to tell Mallery that this kind of discovery information is “a basic, basic obligation” of prosecutors.
In the days since, the prosecution’s harried and at times haphazard presentation has been on display during a trial in which the limo company’s operator faces 20 counts each of second-degree manslaughter and criminally negligent homicide. For instance, Mallery lacked command during the examination of even Brian Chase, who was the consultant the prosecution hired to provide a forensic analysis of the crash.
The almost-frantic presentation continued Monday when the prosecution’s team, which includes special counsel Fred Rench, tapped by the Schoharie County DA’s office, spent several minutes stapling and sorting through papers to submit copies of state statutes and regulations into evidence.
And after all this paperwork, the judge ruled not to permit the evidence.
The prosecution’s procedural blunders, including those early discovery missteps that led to legitimate questions about whether the case would end in a mistrial, have played right into the defense’s hands.
Case in point, the defense opted Monday not to call any witnesses because the prosecution’s witnesses already helped Hussain’s team make its case, Kindlon said after the presentation of evidence concluded Monday.
“Maybe their case just didn’t work out the way they had anticipated because their witnesses kept getting on the stand and pointing the proof away from my client,” Kindlon said, later adding, “I think that we were really successfully able to use the people’s witnesses against them.”
Such has been the fear of some all along, that Mallery — a district attorney in a county of approximately 30,000 people — simply wouldn’t be able to match expensive defensive attorneys blow for blow. Mallery declined comment on Monday, as she has done so many times since the 2018 tragedy.
And now that the proceedings have concluded after only a week and a day, that’s more or less exactly how the trial has played out. The prosecution’s oft bumbling and stumbling presentation has stymied their own case and bolstered a defense that already had ample opportunity to shift blame away from Hussain.
In fact, the defense now has a chance to literally redefine the terms of this case. On Monday, Kindlon proposed changes to the jury instructions that would include allowing the jury to consider a lesser misdemeanor charge of reckless endangerment as an alternative to felony charges against Hussain. The matter will be sorted out Tuesday morning, prior to closing arguments, but the very possibility of such a monumental change this late in the game is an amazing demonstration of power from a defense team that has dominated this trial from Day 1.
In reality, this case shouldn’t be that hard for the prosecution to win. It was supposed to be difficult for Hussain to even have a chance at a fair trial — jury selection took nearly as long as the presentation of evidence, after all. Let’s not forget that Hussain had already pleaded guilty to 20 counts of criminally negligent homicide in 2021 — the lesser of the 40 charges the 33-year-old Prestige Limousine operator currently faces — before Lynch tossed out the plea deal last August.
Helping the prosecution’s case should be the fact that a crumpled state Department of Transportation out-of-service sticker was found in Hussain’s personal vehicle in the days following the crash. That seems to be pretty clear evidence Husain knew about problems with the ill-fated limo that he allowed to carry 17 passengers celebrating a 30th birthday.
Instead, the prosecution’s struggles have let the defense control much of the narrative, including shifting blame to a Mavis Discount Tire in Saratoga Springs, representatives of which bewilderingly came to the stand as part of the prosecution’s case. As Mavis’s manager testified, Mavis didn’t complete critical brake work that Hussain was billed for, meaning that, yes, Mavis absolutely deserves a share of the responsibility.
But even if some culpability falls on Mavis, Hussain shouldn’t necessarily be exonerated. Mavis could have changed the course of history by properly fixing the brakes, but Hussain, too, could have changed the tragic outcome if he hadn’t ignored state regulators who had placed the limo out of service multiple times.
While Mavis faces several civil suits, right now, it’s only Hussain’s culpability on trial. As early as Tuesday, the jury should have the chance to determine if, and to what degree, Hussain is at fault.
That’s because the defense rendered its own verdict Monday on the prosecution’s case by deciding it didn’t want to present any witnesses.
“I really wanted to keep the focus on the people’s case,” Kindlon said, “and the failures in the people’s case.”
Columnist Andrew Waite can be reached at [email protected] and at 518-417-9338. Follow him on Twitter @UpstateWaite.