Habeas case takes a tricky turn

A long-running habeas corpus proceeding took another turn in the Second Circuit as the Court of Appeals ruled that a trial judge went too far in preventing the State from re-trying a criminal defendant who had already prevailed in his Habeas petitition.

The case is DiSimone v. Phillips, decided on March 4. In 2005, a Federal judge ruled that a criminal defendant who was acquitted for intentional murder cannot be convicted for depraved indifference murder. This ruling was significant because these two different murder theories were not always deemed mutually exclusive. But the courts have since held that, since depraved indifference murder does not require an intent to kill, it cannot serve as a backup charge to intentional murder. This was good news for DiSimone, who was acquitted in State court on his intentional murder charge but convicted of depraved indifference murder stemming from an knifing incident.

In 2006, the Court of Appeals vacated the Habeas grant because it was not clear whether DiSimone had fully exhausted, or preserved, these issues in the State court system. Habeas law requires that the criminal defendant fully appeal his constitutional issues in the State appeals courts before seeking a Habeas ruling in Federal court. On remand, the trial judge determined that, in fact, the State had violated its obligation to disclose to DiSimone evidence that someone else may have caused the killing. We call that a "Brady" violation based on the U.S. Supreme Court case that requires prosecutors to turn over that evidence. The State therefore agreed that the conviction for depraved indifference murder should be vacated.

But that did not end the story. The trial judge, Charles L. Brieant, decided that the State cannot re-try DiSimone at all in connection with this incident, reasoning that there was no point to any re-trial since he cannot be convicted for depraved indifference murder. This time around, the Court of Appeals disagrees, reasoning that "the district court was correcting state errors which had not yet been made. As yet, no state court had even considered the question whether DiSimone could be retried."

This means that DiSimone has to wait for the State to determine whether to try him again for depraved indifference murder. If the State so proceeds, DiSimone has to exhaust the appellate process in State court. The Second Circuit does note that, in the end, DiSimone may prevail in State court, either by arguing that the evidence does not support a depraved indifference murder charge or that double jeopardy would prohibit another prosecution.