The Court of Appeals continues to grapple with habeas petitions in which the convicted inmate tries to exploit potential loopholes in New York's laws governing intentional and depraved indifference murder. In a nutshell, if someone dies at the hands of someone else, a murder conviction requires intentional murder or depraved indifference to human life. This guy was convicted of depraved indifference, but he says now that the only reasonable interpretation of the evidence was that it was the killing was intentional, and that he therefore did not get a fair trial. The Second Circuit disagrees.
The case is Gutierrez v. Smith, decided on December 11. Gutierrez fatally stabbed someone. He said the victim ran into his knife and that he therefore accidentally killed him. The jury got him on depraved indifference murder. He says it could only have been intentional and that the conviction was improper because a one-on-one killing cannot as a matter of law constituted depraved indifference murder; it can only be intentional. The Second Circuit (Calabresi, Jacobs and Pooler) resolves this case on the basis of the state of the law at the time of Gutierrez's conviction. Under those cases, "an intentional murder could be done recklessly."
One New York Court of Appeals case from 1989 -- the "Polish roulette case" where the defendant loaded a gun with real and dummy rounds of ammunition and pointed the gun at the victim and pulled the trigger -- did find depraved indifference but not intentional murder where the defendant was reckless. Gutierrez's case is like that case. In the middle of a brawl outside a bar, he threatened people with a knife and accidentally stabbed a victim, and then right afterwards, he wielded his knife haphazardly without any regard to whether he was going to hurt someone. He also chased after the victim and stabbed him twice. Viewing the evidence in favor of the prosecution, although the killing was done face-to-face, the Court of Appeals says that the jury had a basis to find that Gutierrez did this with depraved indifference but without intent to kill.
The Court of Appeals agrees this is a close case, stating that "one might read New York law as precluding a conviction for depraved indifference murder on the facts of this case. ... But we do not believe that the New York Court of Appeals created an inflexible rule that would allow a single factor -- one-on-oneness -- to delimit the definition of the crime, without regard to other evidence of the defendant's mental state.