Recently, some readers have reached out to me with inquiries about depraved indifference cases.
There is no doubt that depraved indifference cases have popped up a lot around here. In fact, the first substantive post on the blog had to do with a habeas grant in a depraved indifference case (it was later overturned by the Second Circuit). A search of the blog shows that there have been dozens of posts that have mentioned this category of cases.
So I thought it might be helpful to give an overview of what's happened and is happening in those type of cases.*
*For some reason, I felt uncomfortable trying to find a pithy title for a post about depraved indifference cases. I have previously lamented the fact that pithy titles are not really my forte. Only rarely do I find that right combination of brevity, cleverness, metaphors and/ or puns, that all come together in a perfectly pithy blog post title. I am always amazed when someone can do it. UPDATE: From the comments, this clever proposed title made me laugh: "I'm deprived on account of I'm depraved." It's kind of perfect.
I am going to cover the following areas:
A. Background (discussing the change in law)
C. Habeas Review of the Merits
D. Procedural Default
This is going to be a long post. So, for the first time in a long time, I am going to put stuff below the fold . . .
In New York, a person can commit murder in the second degree with two different mental states.* The obvious one is intentionally. The second is a more amorphous kind – depraved indifference. It is someone who acts in such an out-of-control way that their actions are putting other people’s lives in danger. Sort of like driving a car at high speeds down a sidewalk. The person may not be intending to kill somebody, but they sure are creating the situation where that can easily occur.
*There is also felony murder, which only requires a defendant to cause a murder during the course of a felony without any particular mental state.
For a long time in New York, defendants were getting charged with both of these types of murder. These dual indictments were due to the fact that the law in New York as to how depraved indifference was defined was ambiguous. It was never explicitly stated that it was its own mental state. Rather, a finding of recklessness was basically enough to support a depraved indifference conviction.
Beginning with its decision in People v. Hafeez in 2003, the the New York State Court of Appeals began to reassess the meaning of what it took to establish depraved indifference. Over the course of a few years in a series of cases (People v. Gonzalez, People v. Payne, and People v. Suarez), the court slowly chipped away at the prior meaning of the crime. And then, in People v. Feingold, the court officially held that depraved indifference carried its own mental state, above recklessness on the mental state ladder (and either on the same level, or maybe just below, intentional).
Because it had been the practice of the DA's offices to charge both depraved indifference murder and intentional murder, there were many convictions for depraved indifference in situations where the evidence was more consistent with an intentional act but the jury just thought it was compromising in acquitting on intentional and convicting on depraved indifference. When the law changed, this left many defendants in the unenviable, but legally appropriate, position of arguing that, because they intentionally killed someone, the evidence of depravity was insufficient, so the indictment should be dismissed. In other words, a defendant would literally be saying: "I meant to kill that person, so I should be set free." The courts hated it, but the defendants were sometimes successful.
Otherwise, some defendants could make the more straight forward argument that the evidence of depraved indifference was insufficient and that they only acted recklessly, but not with the necessary depravity.
When a defendant could show that the evidence did not establish a depraved indifference murder, the next step was relief. The tricky situation was where the defendant had been acquitted of intentional murder, but now was arguing that the murder actually was intentional. Should the indictment be dismissed? Should the conviction be reduced to a lesser count? Could the defendant be retried on lesser counts?
Courts went different ways. From what I remember, the convictions were often reduced, typically down to manslaugher in the second degree (recklessly causing a death). In rare situations, the indictments were dismissed.
The most interesting situation was where the State sought to retry the defendant on lesser counts. Double Jeopardy potentially stood in the way of retrying the defendant on lesser counts. Because the defendants were often acquitted of intentional murder and the appellate court was concluding that the evidence was insufficient on depraved indifference, this should mean that, under the same offense test, he could not be retried on lesser counts of either of these crimes as they are considered the same crimes.
But there was a wrinkle. New York is an "acquit first" State (that stuff came up recently in the cert. grant in Blueford). So that meant that juries would often acquitting of intentional murder and then convicting on depraved indifference without ever considering the lessers. In a case called In re Suarez (the same defendant from one of the cases that chipped away at the meaning of depraved indifference), the Court of Appeals seized upon this "acquit first" procedure to allow a retrial on a lesser count that had been submitted, but not decided upon by the first jury.
C. Habeas Review of the Merits
But what about those defendants who lost in state court? Well, this is where habeas corpus came into play. In some situations, the state courts addressed the claims on the merits, which opened federal habeas review. An example of this was the very recent habeas grant from the Second Circuit in Rivera v. Cuomo, 10-224-pr.
What's interesting about Rivera is that the Second Circuit recently ordered petitioner to reply to the State's petition for rehearing. Under FRAP 35, a party only needs to respond to a rehearing petition when the court orders it. In fact, a party can't respond unless the court orders it. So it's a big deal when that happens. It could be a prelude to a grant. Or at least a published opinion where there is a majority opinion explainig why rehearing was denied or published dissenting opinions on why rehearing should have been granted. Petitioner filed his response two weeks ago. So I'll keep an eye on that to see what's happening.
D. Procedural Default
Many defendants lost in state court on this issue because the legal insufficiency argument was not preserved in the trial court.* This has led to a lot of litigation in federal court as to whether this type of procedural default should bar federal court review of the claim.
*An interesting side issue was whether the Appellate Divisions should exercise its weight of the evidence review on an unpreserved depraved indifference claim where the court was really being asked to find that the evidence was insufficient. The defendants ended up winning on that legal argument (even if most of them did not end up winning on the merits).
There are several different ways in which petitioners sought to get around the procedural default. One of them was futility. Put simply: it was futile for counsel to raise the claim at trial since the law made it clear that there was no way the defense would win. Seems pretty logical, right? But through what I consider kind of unfair reasoning, the federal courts rejected this argument, saying that defense attorneys should have been aware that the law was changing so they should have raised the claim. I joked about this the other day with respect to a recent summary order, which basically used this same logic to find that an appellate attorney was not ineffective - counsel couldn't have won on the issue, so she was justified in not raising it. It's sound logic, but it wasn't enough to get over the procedural default for depraved indifference cases. The Second Circuit rejected the logic in a published opinion and then again in a summary order.
It should be noted that not all federal courts rejected the argument. In the great decision in Petronio v. Walsh, the court accepted it, but did not refer to it as a futility argument. Rather, the court concluded that the "novelty" of the claim allowed petitioner to get around the procedural default. Of course, that's kind of just the flip side of the futility doctrine.
One argument that was accepted in several cases was the miscarriage of justice exception to the cause-prejudice standard. That argument was accepted in Petronio, and in a case called Johnson v. Bellnier, and in one of the earlier cases addressing the depraved indifference issue, Fernandez v. Smith.
However, this argument was not accepted by many federal judges. So this split is now before the Second Circuit in the aforementioned Johnson, as well as Garbutt v. Conway, and Sanchez v. Lee. As can be seen on the Pending Second Circuit Cases page, the cases are at various stages of briefing. To note, Sanchez has moved to consolidate these cases.
One final argument to get around the procedural default is the more traditional IAC based on counsel's failure to raise the argument at trial. This issue is presented in the case of Parker v. Ercole, to be heard by the Second Circuit on November 14.
One important issue that was raised by the change in law was: what class of defendants should benefit? Obviously, those defendants who had yet to go to trial were the ones who were the most obvious ones to get the benefit of the change in law.
And, as the law should play out generally (under the Supreme Court decision in Griffith v. Kentucky), those defendants whose convictions had yet to become final, in other words, their cases were still in the appellate pipeline, should get the benefit (so long as the issue was preserved).
To note, what was so interesting about Rivera (the recent habeas grant from the Second Circuit) was that the DJ got this basic principle all wrong. She believed that you look at the law at the time of trial. I was furious about this at the time it happened. Even worse, she did not grant a COA (which probably made me even angrier). Fortunately, the Second Circuit granted one and straightened it all out.
That leaves one more class of defendants: those whose convictions became final before the change in the law. For those defendants, the issue was retroactivity. However, in a case called Policano v. Herbert, the New York Court of Appeals held that the change in the law that began in 2002 would not apply retroactively to these defendants.
This led to the interesting decision in Henry v. Ricks in which the Second Circuit held that there is no due process violation when the State refuses to give retroactive effect of a change in the definition of a state law.
However, the Second Circuit should have framed that holding as whether or not that type of due process violation was clearly established. I have recently been informed about a pending cert. petition in a case called DiGuglielmo v. New York that raises this particular argument. Specifically, the issue is whether due process permits a state court to refuse retroactive application of a change in the definition of crime that would render the defendants conduct to no longer be criminal under that statute. As the Second Circuit mentioned in a footnote in Henry v. Ricks, the Supreme Court granted certiorari on this question in the past, but was unable to reach in a case called Fiore v. White.
Here is the first paragraph of the cert. petition:
Petitioner Richard D. DiGuglielmo is serving a 20-to-life sentence for conduct which, the State concedes, is not legally sufficient to support a conviction under what is now acknowledged as the correct interpretation of New York’s depraved indifference murder statute. Indeed, in 2008 he was ordered released by the Westchester County Court upon a finding that he is legally innocent of that offense. Yet after more than a year and a half at liberty, petitioner was ordered back to prison by the state appellate courts—not because they disagreed with the County Court’s determination that he is legally innocent of this crime, but because they refuse to give retroactive effect to the recent decisions correcting prior, erroneous interpretations of the statute. The New York courts’ refusal to give retroactive effect to decisions establishing petitioner’s legal innocence fails to comport with constitutional due process.
Pretty compelling. Just taking a look at the docket, the petition was distributed for the November 4 conference after the State waived a response. But there is still time for the Court to order the State to respond.