Photographing Prosecution Documents Gets Defense Attorney Censured

09/28/12

On Thursday, the Appellate Division, Third Department of New York censured prominent Albany defense attorney Terence Kindlon for taking a photograph of a document lying on a prosecutor's table during a criminal trial recess. The state appeals court described Kindlon's behavior as “undignified” and “discourteous conduct.” On his part, Kindlon wrote in an email “No excuses. I was wrong … I regret this happened and I unconditionally accept responsibility.”

Almost everybody concerned in the affair refrained from offering much information on the incident. The court did not explain why Kindlon took the picture, Kindlon did not state anything beyond the email, and there was nothing forthcoming by the way of more information from the office of the Albany County DA.

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The criminal trial, during which the incident occurred, involved former Army captain Kevin Powell, who was convicted of assaulting a woman at an Albany bar and hitting her in the head with a beer glass.

When Bruce Leonard, the former assistant district attorney originally assigned to the case left the prosecutor's office before the trial commenced, Leonard' replacement wrote a letter to him in 2011 seeking more information on the defendant and his military background. The letter in response sent by Leonard to Brian Conley, who was Leonard's replacement suggested that Conley stress upon Powell's combat training as a part of prosecution strategy. Kindlon photographed that response.

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The Third Department also noted in its ruling that this was the third time Kindlon was receiving a letter of caution since 1997. However, letters of caution are not released to the public and the reasons for Kindlon receiving such prior letters remain unknown.

The Third Department noted, “In mitigation, we note (Kindlon's) otherwise distinguished legal career and laudable community service.”

Kindlon is a Vietnam veteran who has been in private law practice for more than 30 years, and is a founding member of the state Association of Criminal Defense Lawyers.

The case is the Matter of Terence Kindlon, New York State Supreme Court, Appellate Division, Third Department, No. D-43-12.