Habeas petition denied for depraved-indifference killer

Something interesting happened in the New York State Court of Appeals a few years ago. The State's highest court interpreted homicide law in a new way. It ruled that you cannot be convicted of depraved indifference murder if the evidence demonstrates the defendant's intent to kill the victim.

This may sound unremarkable to those who did not go to law school, but for those of us who did, we all remember criminal law seminars where the teacher gave us the classic example of depraved indifference murder: someone throwing a brick from a building into a crowd of people. The brick-thrower did not intend to kill, but his actions established beyond doubt his depraved indifference to human life in that he reasonably expected the brick would hit and kill someone.

Now, there are other ways to murder someone besides depraved indifference to human life. You can take action intending to kill someone, i.e., pointing a gun at someone and pulling the trigger. Up until a few years ago, in some cases, a defendant could be convicted of depraved indifference murder even where the evidence suggested that he may have intended to kill his victim. The New York Court of Appeals smoothed over that anomaly in the law a few years ago, holding in People v. Gonzalez, 1 N.Y.3d 464 (2004), that a conviction for depraved indifference murder is invalid if the defendant intended to kill. This does not mean that killers go free. It means that the prosecutor has to charge the brick-thrower with depraved indifference murder, and if the evidence suggests the defendant did intend to kill, the jury cannot find him guilty of depraved indifference murder.

The depraved-indifference and intent-to-kill distinction in New York homicide law came before the United States Court of Appeals in a habeas corpus petition filed to overturn an inmate's conviction in a homicide case. The case is Henry v. Ricks, decided on August 10. Henry was convicted in 1997 of depraved indifference murder, but he was acquitted of intentional murder. Off to jail Henry goes. But the Gonzalez case -- decided by the New York Court of Appeals -- gave him an argument in favor of overturning the conviction in federal court, because the evidence only supported one inference: that he intended to kill his victim (even if the jury acquitted him of that charge).

As the Second Circuit summarizes the criminal case, Henry shot a guy in an apartment and then placed the victim's body in the trunk of a car and buried the body in a snow bank. Although the decision is not clear on this point, it seems obvious that Henry argued in support of his habeas petition that he was acquitted of intentional murder under facts that can only support a finding of intent-to-kill. This means that his conviction for depraved-indifference murder violates the Constitution because the evidence technically did not support the depraved-indifference charge.

This is not a bad argument. Henry is simply taking advantage of a change in New York homicide law in arguing that his conviction is now invalid. As the Second Circuit notes, however, Henry "forthrightly" concedes "that his position is 'disturbing'" in that he is not actually claiming his innocence or a lack of intent to kill the victim. In fact, "he contends that the evidence adduced at his trial amply demonstrated his intent to would the victim mortally" and that "in light of the evidence of intent, the evidence was not sufficient to convict him of depraved indifference murder under the new pronouncement of the law by the New York Court of Appeals."

While this argument technically has a basis in law, Henry loses the habeas petition. The Second Circuit finds that the Gonzalez decision from the State Court of Appeals is not retroactive. As much as Gonzalez helps Henry's legal position on the habeas petition, since the State's highest court did not simply clarify the law in that case, it does not have retroactive effect. We know this because the New York Court of Appeals said so in Policano v. Herbert, 7 N.Y.3d 588 (2006). In short, the Gonzalez decision does not help Henry, and the Second Circuit observes that it has no authority "to thrust upon state courts a different conception either of the binding force of precedent or of the meaning of judicial process."