Lawyers for Michael Kmec, a former Connecticut College employee who pleaded guilty last November to embezzling over $170,000 from the College, are asking a federal judge to consider giving their client leniency because of what they claim are Mr. Kmec’s mental and family health issues. Prosecutors are pushing for an approximately two year prison sentence, but Mr. Kmec’s lawyers have requested that Mr. Kmec receive “home confinement followed by supervised release.” Mr. Kmec’s lawyers have also requested and received a third postponement of their client’s sentencing hearing.
In a 18-page memorandum, Mr. Kmec’s defense team describe their client, who is charged with defrauding the College and its students, as a “hard-working productive member of society” plagued by personal and family health issues. Lawyers said that Mr. Kmec was never dangerous, and that “to the extent Mr. Kmec’s mental health played a part in his offense, the most effective way to address the problem is in the community, not through incarceration.”
Mr. Kmec’s lawyers claim their client has been cooperative with the College and law enforcement. “Mr. Kmec was relieved to get caught and felt he had been living with a terrible secret.” They say he “took the initiative to cooperate fully with a criminal investigation that had not even started to ensure the full extent of the situation was disclosed.”
The defense team writes that Mr. Kmec’s participation in an investigation and criminal proceedings “have taken a significant toll, both emotionally and physically, upon Mr. Kmec, as well as his family.” They argue “there is no additional incarceration that could provide any more deterrence for Mr. Kmec than this prosecution has already provided.” Mr. Kmec has not been held by authorities and instead was released on $50,000 bond.
Federal prosecutors say they are not disputing Mr. Kmec’s description of his mental health, but claim “Mr. Kmec’s mental illness and depression do not mitigate his theft of more than $170,000 nor warrant a guidelines departure…there is no evidence to suggest that his mental health condition propelled him to embezzle.”Mr. Kmec’s lawyers claim that “Mr. Kmec had no criminal involvement prior to this plea. But for these charges, Mr. Kmec has been a law-abiding citizen for his entire life.” Federal prosecutors have questioned this argument, saying “even though Mr. Kmec claims he suffered from depression and other mental disorders almost his entire life, he also claims he was a law abiding citizen until he began embezzling from the College in 2014. Furthermore, Mr. Kmec is lucky enough to have supportive and loving family and friends—he had other means to address his mental health issues than by committing fraud.”
“This is not a case where the defendant made a single mistake or exercised bad judgment on an isolated occasion,” prosecutors write. “Instead, his schemes were methodically executed. There is no doubt about the deliberateness of Mr. Kmec’s actions. He took concerted steps to commit and conceal his crime, including creating a limited liability corporation and filing articles of organization with the Secretary of the State of Connecticut for that corporation.”
Mr. Kmec’s defense team has also argued that family medical issues warrant a departure from sentencing guidelines, referencing Mr. Kmec’s wife, who they say has a range of physical health issues, and his son, who they say has “issues” and would be negatively impacted by his father being incarcerated. Prosecutors, however, say they do not think Mr. Kmec’s family issues should be considered, citing the Second Circuit in United States v. Johnson saying “[d]istruption of the defendant’s life, and the concomitant difficulties for those who depend on the defendant, are inherent in the punishment of incarceration.”
Mr. Kmec’s mental health defense follows a January 2019 effort by his lawyers to postpone multiple court deadlines after claiming Mr. Kmec’s doctor had “recently indicated that [Kmec’s] actions, in this case, may have been impacted or resulted by medication prescribed.” Lawyers said that information would be relevant to a presentence investigation report, a document that provides historical context of a convicted defendant during a sentencing hearing.
Mr. Kmec’s lawyers did not specify what medications might have influenced Mr. Kmec’s actions and did not respond to a request for comment. A presentence investigation report was eventually filled on March 11, 2019, but it remains sealed in public databases.
However, a recently unsealed transcript of a November 14, 2018 hearing at which Mr. Kmec pleaded guilty hints at what his lawyers might have been talking about. In the hearing, Mr. Kmec told federal magistrate judge Donna F. Martinez about six different prescription medications he was taking at the time: Lamictal, Wellbutrin, Zoloft, Metformin, Lipitor, and Lisinopril. These medications are used for bipolar disorder, seizures, depression, OCD, diabetes, blood pressure, and more.
Judge Martinez asked Mr. Kmec if “any of the medications have any adverse effect on your ability to think clearly or reason — or be attentive or anything like that…do they leave you fuzzy headed or cloudy or anything of that nature?” Mr. Kmec said they did not. Judge Martinez clarified that “the reason that I’m asking you all these questions…I have to make a determination that your mind is clear. Is your mind clear?” Mr. Kmec replied, “Yes, your Honor.”
The Jan. 17, 2019 motion requesting extensions on various court deadlines was not the first. Mr. Kmec’s attorney, Raymond M. Hassett, had previously requested extensions due to him being out of state during the holidays. That request got Mr. Kmec’s sentencing date postponed from Feb. 12, 2019 to March 14, 2019. The second postponement request that claimed Mr. Kmec’s medication may have influenced his actions pushed that date back even further to April 17, 2019.
In a March 25, 2019 motion, Mr. Hassett again asked for a postponement, claiming he will be out of state on April 17. Judge Michael P. Shea initially denied this request, but accepted a revised motion. Mr. Kmec is now scheduled to be sentenced on April 24, 2019 at 3:00 PM in Federal District Court in Hartford.
U.S. Attorney John H. Durham and Assistant U.S. Attorney Heather Cherry are pushing for a sentence of between 21 and 27 months, although Mr. Kmec faces a maximum sentence of 20 years imprisonment. “Unless those in a position to steal from an employer understand that there are serious consequences for their actions, the temptation to steal cannot be eliminated,” prosecutors write. “Individuals with access to their employers’ financial accounts and the ability to siphon money undetected must see similarly situated persons, such as Mr. Kmec, go to jail for a just period of imprisonment.” •
