The case is Parker v. Ercole, decided on January 23. Parker was charged with both intentional murder and depraved indifference murder. There is a difference between the two, as any law student will tell you. The prosecutor said that Parker shot Johnson in the midst of a street fight over a stolen car. Parker denied the charge. The real question at trial was whether Parker pulled the trigger. The jury found Parker guilty of depraved indifference murder, not intentional murder. Parker's argument is obvious: the only basis to find him guilty would have been intentional murder, not depraved indifference murder. The state appellate courts rejected his argument.
Parker now pursues a habeas action claiming that his lawyer was ineffective in failing to preserve his argument that the evidence was insufficient to support the depraved indifference claim. The Second Circuit (Kearse, Cabranes and McLaughlin) rejects the argument. The district court did say that Parker did not preserve this appellate argument at trial, but it addressed the argument anyway in assessing the ineffective assistance claim that he raised on the habeas petition. But the district court still rejected the petition. The Court of Appeals says that even if there was ineffective assistance, Parker cannot show prejudice (a necessary requirement on habeas petitions like this) because even if his lawyer did do what he was supposed to, that argument would have failed because the evidence was sufficient to support the verdict, and Parker did exhibit depraved indifference to human life in that he was extremely reckless in firing the gun (as opposed to a point blank shooting). That motion would have been futile. Quoting from the Appellate Division, here's why:
The distance between [Parker], who was a novice user of the subject rifle, and the people across the street, was hardly close. All of the witnesses testified that the “shooter” was standing inside the hallway of a residence on the opposite side of the street. The victim, his girlfriend, their male companion and two of [Parker’s] own friends were located across the street from this residence near the victim’s parked car. Another of [Parker’s] friends was also in the immediate vicinity. Moreover, it was dark outside, the street was dimly lit and the weather was described as “a blizzard.” . . . .
While the jury heard testimony from one witness, who acknowledged that he had changed his statement to police a couple of times and who was himself threatened with being charged with murder, that [Parker] allegedly told him that he put the scope [of the rifle] on the victim’s chest that morning, they also heard evidence from the victim’s girlfriend that the victim was pacing back and forth on the street at the time the shot was fired. The jury further heard testimony that, just minutes before the shooting, [Parker] refused to participate in his companions’ decision to steal the victim’s car because he and the victim had been childhood friends. ... [T]here is ample record support for the jury’s decision that [Parker’s] conduct that morning was reckless and depraved rather than intentional.