Brown v. Ercole, 07 Civ. 11609, 2009 WL 857625 (SDNY Mar. 31, 2009) (NRB)
I want to kick off the substantive blog posts with a great habeas victory. The lawyer for the petitioner was David Klem, an extremely talented lawyer in my office, and also Co-Coordinator of my office’s Federal Litigation Unit (see the About link for more info.).
Facts: The victim went out with some friends in the Bronx. His friends left him in the Bronx and the victim remained out by himself. Later that night the victim began arguing with some men on the sidewalk. The men began to chase the victim and, after he fell to the ground, the men kicked and beat him. An eyewitness testified that, at some point, the petitioner, Rohan Brown, pulled out a knife and stabbed the victim multiple times. The victim died later that morning. A doctor testified that the victim was stabbed four times, three of them were fatal.
New York Legal Stuff: 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.
For a long time in New York, defendants were getting charged with both types of murder. This happened to the petitioner. 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.
In Petitioner’s case, both charges were submitted to the jury and he was acquitted of intentional murder, but convicted of depraved indifference. On appeal, he argued that the evidence was legally insufficient to show that he had committed that type of murder. He had not previously argued at trial that the evidence was insufficient.
After the trial in this case but while the case was still on appeal, the New York Court of Appeals (the highest court in New York) made clear the distinction between the two types of murder. It explained that these two types of murder really are two different mental states. It is, for the most part, an either/or situation. In fact, it is a rare situation where it would even be a close call between these two. Which means that both counts should not really be charged in an indictment or submitted to a jury.
In the end, the appellate court declined to review the claim because it had not been raised at trial.
Habeas Legal Stuff: Habeas relief was granted in this case because it was clear that the stabbing was not a depraved indifference murder. Legally speaking, the court concluded that the evidence was legally insufficient to establish that the petitioner acted with a depraved indifference mental state. Because the jury acquitted of intentional murder, it means that the petitioner now cannot be convicted of either type of murder. An unusual result, to be sure. The federal court ordered that the petitioner be tried on a lesser count (i.e. manslaughter, which was originally submitted to the jury but not considered).
Apart from the result, there is one other really fascinating habeas legal aspect to this case.
This has to do with the law of procedural default (see FAQ 5). Petitioner’s failure to raise the claim at trial would typically lead to a procedural default in habeasland. However, the federal court found that there was “cause” here for the default (also see FAQ 5), relying upon a futility doctrine. What does that mean? It means that it would have been futile to raise it at the trial level due to the state of law on depraved indifference at the time of the trial. In other words, raising an objection at trial would not have altered the result due to the state of law, which did not change until the case was on appeal. According to the district court, the futility in objecting here excused the default.
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