Following up on the future of legal insufficiency claims, I also want to talk about the present state of legal insufficiency claims in depraved indifference cases. I wrote a global post about depraved indifference cases last year after the Second Circuit had granted habeas relief on a legal insufficiency claim in a depraved indifference case in Rivera v. Cuomo. For this post, I'll assume a basic familiarity with that law. If not, go read that global post for background.
I had such high hopes for these, but the Second Circuit took it all away. First, they reversed themselves in Rivera mostly on the basis of the decision in Cavazos v. Smith (but I have a theory that it was more due to panel's fear of the decision getting summarily reversed by the Supreme Court). Then the court rejected legal insufficiency claims in Parker v. Ercole and Garbutt v. Conway.
And then there was the decision last week in Epps v. Poole. The Second Circuit once again rejected a legal insufficiency claim in a depraved indifference case.*
*I would be remiss if I didn't mention my frustration with a sentence in the court's opening paragraph in Epps. Here's what the court said: "the petitioner advanced the somewhat perverse argument that he should be released from state custody because the evidence suggests he is in fact more culpable than the jury had found him to be." This is unfair. Completely. The defendant was only put in the position to make the "perverse" argument because the prosecution overcharged them. They were not depraved indifference cases, plain and simple, and the prosecution should not have sought the dual indictment. And, particularly in a case like Rivera, the prosecution did not even prosecute the case, at all, as a depraved indifference case.
All of these cases were pre-Feingold when the New York State Court of Appeals officially changed the definition of depraved indifference. And the Second Circuit has now made pretty clear that habeas petitioners are going to have a really tough time winning on these claims. In these cases (except maybe in Rivera where the court did not really explain in detail why it was reversing itself), the Second Circuit basically combed through the factual record to find some shred of evidence that the killing was not completely and unambiguously an intentional act.
But some of the reasoning is kind of a stretch. For example in Parker there was this:
We find particularly relevant the fact that Parker fired a single shot from inside a house, at some distance across the street, into a crowd of people, and did not pursue Johnson, the victim, even when it initially appeared that Johnson was not mortally wounded by the shot.
So? Sounds like the petitioner intentionally shot a person who he intended to shoot with a shotgun. Pretty intentional to me. Do shooters often pursue their victims after shooting them? Is that rational?
And then there is Garbutt. The facts were: "Garbutt approached Blanchard, with whom he had had a turbulent romantic relationship, in anger, carrying a large knife, and in the presence of Blanchard's daughter, Tolbert. He grabbed Blanchard away her from her daughter as he demanded her attention. During the resulting physical struggle, he pulled out the knife and began slashing, hitting both Blanchard and Tolbert."
Once again, sounds pretty intentional to me. But here is the Second Circuit's reasoning:
[A] reasonable jury could equally have found that Garbutt had struck out in blind anger, without specifically intending to cause death, but with an awareness that his conduct could have deadly consequences for either Blanchard or Tolbert or both. The jury could further have inferred from the fact that Garbutt ran away before verifying that Blanchard had died that he had not intended to kill her. Moreover, a reasonable jury could also have found that Garbutt's violent and callous response to Blanchard's refusal to follow his orders, which endangered not only her but also Tolbert, manifested exactly the sort of depraved indifference to human life that New York case law continues to treat as a mental state sufficient for a murder conviction.
That's a head scratcher. Once again, there's that "not checking that the job was done" logic. That is not rational to me. But, overall, the premise is off. The guy pulled out a large knife and intentionally stabbed the victim who he was angry at. He didn't wave the knife around in some reckless way knowing that it could kill somebody. He was angry at someone and deliberately struck the person with a large knife multiple times. How is that "exactly the sort of depraved indifference to human life" that New York looks to? I don't think that's a particularly rational position.
But that's where we are at with depraved indifference cases. Rationality="tiniest shred of evidence that can be found" or "some kind of tenuous basis for saying that it was not exactly intentional". I guess under the "double deference" standard there's legal support for how the Second Circuit has been analyzing these. It's going to be a tough hill to climb for pre-Feingold depraved indifference petitioners.