Easy come, easy go, for habeas victory

In August 2011, the Second Circuit granted a habeas petition filed by an inmate who shot his estranged wife in the head point-blank. The Court ruled that the criminal conviction violated the U.S. Constitution because the jury found him guilty of depraved indifference murder and not intentional murder. This may sound outrageous, but the Court of Appeals actually had a reason for doing this. That decision has now been taken back. The Second Circuit has reversed itself in that case and reinstated the conviction.

The case is Rivera v. Cuomo, decided on December 16. 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 I wrote up the decision when it came down in August 2011:

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.

See, there was a distinction between depraved indifference murder and intentional murder. You could not be convicted of depraved indifference murder when the only basis to convict was intentional murder. That was then, all those months ago in August 2011. After the State lost the appeal in this case, it asked the Second Circuit to rehear the case. Most of these petitions for rehearing are rejected without comment. Not this one. Fortunately for the State, the Supreme Court in 2011 decided Cavazos v. Smith, 132 S.Ct. 2 (2011), which reaffirms that under modern habeas law, federal courts have to give state courts great deference in interpreting the U.S. Constitution. Say what you want about the notion that state courts have latitude to interpret the Constitution as they please so long as those interpretation are not "unreasonable." On reconsideration, the Second Circuit (Pooler. McLaughlin and Parker) now upholds the conviction, though not in ringing terms:

After much reflection, we now reverse course. Applying the law as it existed after Rivera’s conviction became final in July 2004, we find that although evidence of “significantly heightened recklessness” was slim, at best, giving the state courts and the jury the utmost deference, we cannot find that the evidence was so completely lacking that no rational jury could have found Rivera guilty of depraved indifference murder. Therefore, we have no choice but to uphold the decision of the state court.