Point-blank shooting is not depraved indifference murder

There is a difference between depraved indifference murder and intentional murder. That may sound logical, but this distinction has thrown a monkey wrench into many state-court criminal convictions. It prompts the Court of Appeals to grant a habeas petition on behalf of a guy who shot his estranged wife point-blank.

The case is Rivera v. Cuomo, decided on August 9. Rivera was charged with both depraved indifference murder and intentional murder. He argued at trial that his estranged wife had actually committed suicide and that he was not responsible for her death. The prosecutor tried the case as an intentional murder case, that Rivera simply pointed the gun at her head and pulled the trigger. In 1997, the jury convicted Rivera of depraved indifference murder.

Here's how the depraved indifference murder and intentional murder dichotomy plays out. In 2003, the New York Court of Appeals decided that intentional murder cases cannot lead to a conviction for depraved indifference murder. As the Second Circuit notes, "certain murders are so 'quintessentially intentional' that they cannot properly be categorized as depraved indifference murder." Depraved indifference usually involves a conduct such as firing a gun into a crowd or throwing a cinder block off a building during lunch hour in New York City. Intentional murder is ... intentional murder: laying in wait and pointing the gun at the victim with intent to kill.

When Rivera was convicted in 1997, the New York Court of Appeals had not yet said that depraved indifference murders cannot support an intentional murder conviction. So while Rivera's conviction back then may have been solid under New York law, it became quite shaky in 2003, when the New York Court of Appeals reinterpreted the Penal Law. In 2004, when Rivera had exhausted (and lost) all his state court appeals, the New York Court of Appeals said that "defendant's act of shooting his victim at close range could not be depraved indifference murder." Instead, it's intentional murder. The Second Circuit adds, "under any reasonable view of the evidence adduced at trial, Rivera's point-blank shooting ... -- which was either undoubtedly intentional or accidental in the course of a struggle -- could not support a depraved indifference murder conviction."

As the Second Circuit says that we must apply the law as it stood in 2004 and not in 1997, this means that the Second Circuit grants Rivera's habeas corpus petition. The depraved indifference conviction is vacated. The Second Circuit (McLaughlin, Parker and Pooler) says, "the New York Court of Appeals has made sufficiently clear by the time Rivera's conviction became final in July 2004 could not support a conviction for depraved indifference murder." Maybe Rivera is a bad guy, but what he did is not depraved indifference murder under New York Penal Law. Since the jury did not find him guilty of depraved indifference, only intentional murder, he is not criminally responsible for the victim's death. Rivera is one lucky guy.