His actions resulted in a horrific crash with a limousine driving a wedding party, and resulted in the deaths in the limo driver, Stanley Rabinowitz, 59, and flower girl Katie Flynn, age 7.It is impossible to forget the image of Katie’s mother holding the severed head of her daughter afterwords.Let there be no mistake, this was a tragedy of untold proportions.
But horrible results don’t dictate the crime. It’s all about the conduct, not the outcome, and the Heidgen case was an extreme example of prosecutorial overreaching. The problem is that Heidgen was sentenced on Wednesday, February 28, 2007. The appeal has yet to be decided. The appellant’s brief has yet to be perfected. More than two years have elapsed, all the while Martin Heidgen sits in prison serving his 18 year sentence as a murderer.
Much has happened since Heidgen’s conviction. The case of Alberia Valencia was decided by the Appellate Division, Second Department, the same court that will hear Heidgen’s appeal. There, the court rejected the “depraved indifference” theory of assault upon which the conviction rested, the same theory (though applied to second degree murder) that was used against Heidgen. Valencia was sentenced on February 23, 2007, five days before Heidgen.
Heidgen was represented at trial by Stephen LaMagna, who I noted at the time was way over his head in a case of this magnitude. But following the conviction, he was unwilling to let go of his grip on this high profile murder case. More than two years later, LaMagna is nowhere to be found. What exactly happened is unknown, but two things are clear. No appeal has been completed and Martin Heidgen is now been appointed an 18b lawyer, Sergey Mikhlin from Coney Island Avenue, Brooklyn. Ironically, Mikhlin was a Nassau County ADA until 2007, perhaps overlapping his time as a prosecutor when his client was being prosecuted by his own office.
Based upon Mikhlin’s website, his practice seems to be geared toward doing drunk driving cases for the Russian community. What experience he has in appellate work or murder cases is wholly unclear. On a promotional website called , Mikhlin highlights his work on “Criminal Law, Drunk Driving & DUI Law, Traffic Law.” He’s obviously got enough extra time to do an occasional indigent appeal.
In an effort to find out what became of LaMagna, and the status of the appeal, I tried to contact Mikhlin but received no response. This is troubling in a case where the legal ramifications of an appeal are so enormous, with so many questions unanswered and so much time lost.
Many people wonder how the law goes so far astray at times. Perhaps what’s happened in the Heidgen case provides an answer. While it was front page news, the lawyer representing Heidgen was too caught up with enjoying the high profile to recognize that he was over his head and needed help. He flew solo, and lost. Then comes the promised appeal, and the case falls off the radar until the hard work gets done. In the meantime, the money runs out, and the thrill of being in the newspapers wears off. The lawyer quietly bails out of the case, leaving the now indigent defendant to dangle in the wind. In his place is an attorney of unknown experience in appellate or serious criminal work. It’s now up to this new lawyer to carry the ball.
Will Sergey Mikhlin be up to the job of handling the Heidgen appeal? Who knows. A case of this magnitude, this importance, and not only is it far behind schedule, but it’s almost entirely a shot in the dark at this point. And that’s how the law goes wrong. Twice.
And so, along with Martin Heidgen, we all sit and wait. No matter how horrible the outcome of Heidgen’s drunk driving, this murder conviction must be reversed.
Update: Information has since been obtained via the Nassau County Assigned Counsel Plan that Mehklin is no longer on the case, but that his assignment was not for the primary appeal but an ancillary proceeding. No one knew what that proceeding might be, unfortunately.
As to the primary appeal, I know understand that Heidgen is being privately represented by Jillian Harrington of Rochman Platzer Fallick Sternheim Luca & Pearl in Manhattan. So why have more than two years elapsed without an appellant’s brief? A darn good question, and I look forward to finding out the answer.
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Was the theory felony murder?
This was the theory of prosecution in Heidgen.
I thought you had to have real appellate experience to get assigned an appeal. I don’t know for certain that Mr. Mikhlin doesn’t, but generally speaking, I don’t think there are any 2004 law graduates who should be handling an appeal of a homicide conviction, unless maybe criminal appeals (with supervision) are what they’ve been doing since the day they walked out of law school. That’s quite unfortunate. Meanwhile, Valencia not withstanding, the DA has no reason to stop overreaching. Thanks for updating your readers on this, as the glamour seems to have worn off for newsday.
I was very surprised to learn that Mikhlin caught this case as well. I asked a friend who is on the 18b appellate panel, who informed me that the Second Department doesn’t distinguish between murder appeals and lesser charges, and that anyone coming out of the DAs office can easily get on the panel.
As for the DA overreaching, it’s not going to stop until a firm decision is handed down rejecting this approach. Valencia came out the right way for the wrong reason. Rice is appealing.
Maybe a Texas lawyer could verify this but here a prosecutor can recommend capital punishment in felony cases. DWI isn’t necessarily a felony until the third conviction.
A drunk driver in Ft. Worth a few years ago killed a man and seriously injured the man’s wife driving the wrong way down an exit ramp.
Since this was his third time, the prosecutor could have asked for death but didn’t because of the lack of intent.
This may be more a morality question than a legal one but why not execute someone whose continued incompetance winds up killing someone?
That could pose a problem for elected officials.
That’s a “feature”, not a “bug”. 🙂
If that happened to MY DAUGHTER let him rot in jail. I taught my daughters if you make bad decisions you pay for it or do the time period. Just don’t make bad decisions. People that drink and drive are serial killers behind a wheel period. They are impaired and they don’t care. His lawyers all they care about is money. No attorney in his right mine should take this case. Let him do his time period. He drove drunk and pay for his actions and decision to drive drunk.
Thank you for that thoughtful and detailed analysis.
I’m curious how much good you could do on “the other side” prosecuting criminals. You seem very diligent, even relentless when it comes to this case. I smell a naive liberal. What you need is a lesson in anger management, not ridding yourself of it, but learning how getting angry may cleanse your soul of these foolish bleeding heart thought. Maybe then you’ll realize that some people deserve to be punished. This bastard deserves to remain in jail for the rest of his sentence. You can visit him while he’s there and hug him or whatever you want to do. Just leave things as they are, I’m sure even Heidgen would agree with me.
The issue isn’t Heidgen, but the state of the law. If you were able to divorce your emotion, not to mention your simplistic ideas of liberal and conservative, from the legal issue, you would see that the overcriminalization of conduct is a libertarian ideal. The problem would be that you would reinvent the law based on your emotional reaction to each offense, deciding that whatever outcome made you feel better would be the right one without regard to how it affects the next case, or the next 100 cases.
Fortunately, the law doesn’t work that way, and no intelligent liberal or conservative would choose to have the law determined by whatever satisfies some angry, ignorant, self-righteous man’s visceral response. Leave the emotional reactions to the children and perhaps your sense of smell will improve.
Overcriminalization of conduct is banning smoking and requiring helmets while riding a bicycle. Drinking yourself into a state of mind where you’re driving on the wrong side of the highway seems like conduct worthy of serious jail time. You sir are what I call a “Loophole Finder” and it humors me how much you enjoy discovering them. As for reinventing the law, why not? You can’t reinvent something unless it was invented in the first place.
Hang your emotions at the door folks. Let’s change this to a BAC level of .1 (only .02 over legal limit in my state), change the defendant to someone, say, a decorated soldier on leave from Iraq and let’s say the victim was a homeless man who was crossing a busy street, although abiding by all applicable laws, essentially making the defendant just as guilty as Heidgen. My position here is completely speculative, mind you, but I do not believe that this case would provoke the same intense emotions as I’m seeing here and what has been presented in the press and elsewhere. Let’s forget this whole decapitation of the seven year old flower bearer in the limousine.
Get a grip on your emotions and understand that what you’re implying is that any negligent act, whether under the influence or not, whether driving or not, should be punishable as an intentional, malicious act. It’s the law folks, and that is what SHG is trying to get across. Unfortunately, the jury couldn’t see through their tears to understand this either.
Revoke the kid’s license for life. Threaten additional jail time for driving w/out a license. Murder – sorry guys, you’re way off base on that one.
I had dinner with an old friend tonight, and he asked me if I had heard what had happened to Marty. I couldn’t believe it! I was a friend of Marty’s back in high school. He really was a great guy. After getting online and reading several articles in regards to the case, I ended up reading some of the blogs under this site. It is absolutely horrible what happened to the little girl and limousine driver. However, the fact that he was charged for 2nd degree murder is insane. In order to be considered 2nd degree murder the act committed must show evil and intent to cause injury. I don’t know if any of you have ever been 3Xs the legal limit and got behind the wheel, but most people (whether you admit that you empathize of not) don’t intend on driving the wrong way down a highway, and certainly don’t intend on killing some. I am by no means justifying His actions. I feel horrible for everyone involved in this tragedy: The little girl, the limousine drive and Yes even Marty. I am so very sad…
This case has been one of the most tragic drunk driving cases in NY state history, and procedurally has taken numerous shocking and bizarre twists and turns. Depraved heart murder turns on the cumulative actions of the defendent prior to and leading up to the criminal act. Reckless disregard for the value of human life. Here, Heidgen – a known partier and drinker – was essentially a ticking time bomb waiting to explode. As reports have indicated, Martin Heidgen had a history of drinking and driving. Ultimatley and inevitably, this tragedy occurred. One of the primary policy reasons for punishing criminals is to deter future wrongdoers. Was his conviction fair and appropriate? How did he end up going the wrong way down a parkway he was no stranger to?
Bone up your law, estudiente, particularly Payne. First, it’s not depraved “heart”, but depraved indifference. It’s the mental state, not the conduct, and cummulative actions have nothing whatsoever to do with the act of the crime. Had he drunk himself blind that night, and done so every night for a year beforehand, it would change nothing as to whether he was capable of forming the requisite intent. If you want to be a lawyer, avoid the vagaries and rumors and focus on the elements and facts.
Thank you for posting this. What this person did was terrible and a criminal act, but he was clearly convicted of a crime in excess of what he actually committed.
I’m astonished that people don’t seem to realize how deeply dangerous it is, not to mention unjust and criminal, to excessively convict people because of the consequences of their actions.
It’s about the level of responsibility, the knowledge and intent. Unintentional homicide is manslaughter. It carries a sentence of 15 years, sometimes more. Isn’t that enough?
Not to mention the fact that there’s social as well as individual responsibility. Better urban planning and more and better public transportation would greatly reduce incidents like this.
I honestly feel awful for all involved, but feelings aside – we need to follow the Constitution.
The Heidgen brief was filed in early May, 2010.
I feel like your trying to defend him if he was such a great guy why was he 14 drinks in and behind the wheel of a truck on the wrong side of the highway. .. this Marty… he wrecked an entire family second degree murder isnt anywhere near insane this man should be literally locked up for life in my eyes… it happened so fast he says it breaks my damn heart think if you had a daughter pretty flower girl k was decapitated and her mother held her daughters head in her arms until medics arrived that’s insane.. her and her mother and all family and freinds were impacted and will remain in pain over this till the day they die if it was your daughter you would see it in a compleatly different light… him being such a nice Guy should have known better you have to think before You do he got behind the wheel and killed two people intentionally or not he killed them with his vehicle and was in the wrong place time and state of mind his acts were selfish and punishment in my eyes is his life for the Kate’s and the limo drivers this is commingle from someone who’s lost friends to drinking and driving his situation sucks and do I care that he was 14 drinks in and 3 × the states bac. Of. 08 I could care less mistakes happen? Being drunk being his excuse.? ??.. that’s the reason he’s wanted for second degree murder K’s mother wont ever get to see her daughter go to high school college get married no grand kids never be able to see her again nd the last time she did she was literally in two… think about that image I hope Marty got to see what pain and shock Kate’s mother was in when it happened. .. oh I forgot he probobly wouldn’t even remember if I had it my way I would have the whole crash taped and force him to watch it every single day looking into Kate’s moms eyes when she ran up to the limo and discovered her baby girl. .. grabbed her head sat on the side of the highway and wept …do I believe in forgiveness, yes but it will never give Kate’s mom her daughter back and it will never bring back the life of the limo driver or not to mention the witnesses forever scarred by seeing the tragedy that night that feel like they live it over day in and day out… they will never be the same. Sorry about the lengthy message I’m not looking to fire anyone up but I’m looking to get some emotions off my chest thanks for hearing me out