When Murder Loses its Meaning

First it was Robert Heidgen.  Now, Franklin McPherson, who was sentenced to 25 years to life in prison upon his Nassau County conviction for murder.  That’s the maximum sentence, which was imposed yesterday by Judge George Peck.

A jury convicted McPherson, 21, of Deer Park, of second-degree murder in June for killing Leslie Burgess, 44, of Amityville.

McPherson drove his Lexus 5 miles in the wrong direction and killed Burgess when he crashed into his eastbound Jeep last October. He broke his legs in the crash.

It’s not to say that McPherson was an innocent man.  He was not.  It’s not to say that McPherson’s conduct was excusable.  It was not.

But Franklin McPherson did not commit murder.  To say he did cheapens the crime for the victims of real murders, and subjects it to the transitory whims of the prosecutor.  McPherson was drunk.  According to his lawyer, Dennis Lemke, he was far drunker than the .19 claimed by the prosecution.  Dennis is a good trial lawyer, but he’s not really a “law man,” as they say.  Neither was Steve LaMagna, Heidgen’s lawyer.  It’s unclear whether a good “law man” would have had any impact on the trial court.  Most of the judges aren’t “law men” either.

The basis for the second degree murder charge was the “depraved indifference” theory:

Penal Law Section 125.25(2) states that a person is guilty of depraved indifference murder, when ‘under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.’

For many years, this language confused almost everyone in New York, and led to prosecutors commonly charging murders as both intentional and depraved indifference, under the theory that if it wasn’t the first, it had to be the second, hoping that if they threw both at the wall, something would stick.  This changed with the Court of Appeals decision in People v. Payne, where the Court held that depraved indifference referred to the defendant’s state of mind, not to an external view of how horrible his conduct was.

The defendant must have known and appreciated the potentially fatal consequences of his action, and made the active decision to engage in the conduct nonetheless.

The conduct engaged in by McPherson, as well as Heidgen, was drinking alcohol.  It was drinking to excess.  And then driving a car in this drunken state.  But neither the Nassau County District Attorney Kathleen Rice, nor the assistant who tried both the Heidgen and McPherson cases, Maureen McCormick, will say this.

Instead, the explanation goes like this:

After the McPherson verdict, Nassau District Attorney Kathleen Rice said he, like Heidgen, acted in a way that showed he was guilty of depraved-indifference murder, meaning he acted recklessly, knew the risks of his actions and ignored them.

“This defendant’s preventable actions led to this inevitable tragedy,” Rice said.

Who, amongst the public, would disagree with Rice?  But that doesn’t make this a murder.  And notice how nobody mentions that it’s not like McPherson walks free if he’s not charged with murder. There’s always a 10 year sentence for manslaughter available.  Or criminally negligent homicide, though that crime doesn’t have that cool, violent ring to it, and “reckless” isn’t as nasty as “depraved”.

Depraved is perhaps one of the smartest words a legislator every approved.  It immediately evokes an image of Freddy Kruger, evil personified.  What good is a crime if it doesn’t evoke an image of evil?  That’s why misprision of felony is so rarely charged.  No visceral reaction.  No mental image.  It’s boring.

McCormick’s explanation doesn’t add much to the public’s understanding either:

Maureen McCormick, the prosecutor who won both convictions, said, “The Heidgen case was not a fluke or a political stunt, and it was not because it was an adorable little girl who was killed.” She was referring to 7-year-old Katie Flynn, a victim in that crash. “The facts are what made these cases murder.”

As has become so very popular, an appeal to emotion is hidden behind vague things that seem to make sense, provided one doesn’t let things like the law get in the way.  This has long been the push by advocacy groups such as MADD to create a growing public intolerance for drunk driving, and create the impression that ever-increasingly harsh charges and punishments are the only way to stop this plague.

The problem is that these groups have been so successful, and politicians have basked in the reflected glow of this success, that when reality gets in the way of these PR campaigns (meaning when convictions for murder do nothing to stem the tide of drunk driving), they need to find yet a deeper, harsher, more horrific penalty to impose.  Yeah, if only they got the death penalty, that would fix the problem!

The reason why they are slaying imaginary dragons is that this is not the crime of murder.  It never was, and never will be.  Drinking too much and getting drunk is not something that one contemplates as part of a violent crime.  Driving home drunk, every stinking drunk, isn’t meant to cause harm.  It’s meant to get home.

There are no real similarities between shooting a gun into a crowd and driving home drunk.  The former serves no purpose other than to cause harm.  There is no harmful purpose in the latter.  The former has a high likelihood of killing someone.  The latter could well kill someone, but has only a minute probability of occurrence.   The former is murder.  The latter is not.

The forces against drunk driving are empowered by these convictions, and the public appreciation of what a wonderful job they are doing to protect their children from death at the hands of these vicious drunks.  I’m no apologist for drunk driving.  I think it’s an incredibly wrong thing to do.  But I’m also no fan of overcharging, of taking a lesser crime and making it greater to curry ignorant public favor.

No doubt Dennis Lemke will be filing a notice of appeal shortly, and I hope that the lawyer assigned to do the appeal will do an exceptional job.  The appeal in Heidgen is still pending.  As of now, there’s nothing to suggest that an appellant’s brief has been filed with the Second Department.  In all likelihood, this issue won’t be resolved until it reaches the Court of Appeals.

There is absolutely no question that the convictions for murder must be reversed.  And this reversal will not be a slap in the face of society, or the prosecution, or the Mothers Against Whatever, but return to grounding convictions in the law rather than the appeal to raw emotion.

Get drunk, turn onto the off-ramp instead of the on-ramp, get convicted for murder.  Is this really what you want?

6 comments on “When Murder Loses its Meaning

  1. Joel Rosenberg

    Couple of questions, if you’ve got the time/inclination. What is the max for (under whatever name NY law has it) criminal vehicular homicide? What’s the likely sentence, both official and time served? And if McPherson’s conviction stands, how long is he likely to be in?

    Okay, that’s more than a couple.

    Like more than a few folks, I suspect, I really don’t know what to think about DUI law and sentencing stuff, other than that the MADD”>http://www.alcoholfacts.org/CrashCourseOnMADD.html>MADD folks are over the bend nutso.

  2. SHG

    You know better than to ask.  But I will explain one thing, as it’s a constant source of confusion.

    An indeterminate sentence in New York (i.e., 25 to life) means that the defendant is not eligible for parole until he has served the minimum term (25), and can theoretically remain imprisoned for the maximum (life).  These days, it is not uncommon for the parole board to deny parole for the first few times in cases with ugly outcomes, making parole at the first opportunity relatively unlikely.

  3. Mash2628

    I was wondering if there are plans by district attorney to prosecute the accomplices. Hypothetically speaking, is it possible to prosecute passengers in the car of someone who has been drinking and driving and kills another in an accident. Maybe the individuals who may have been present in the establishment should be sentenced also. If not as the individual who directly causes the harm to another person but certainly as an accomplice to the events. I suppose depraved indifference has a wide scope of interpretation. Ms. Rice and Ms. McCormick should really think about the meaning of depraved indifference, it would be awful to think they are causing the very problem which creates ….depraved indifference. I suppose if individuals feel drinking and driving could lead to life in prison then maybe the might find alternative means of irrisponsible behavior. Maybe this is why motor vehicle accidents are called accidents.

  4. Pingback: Beating Up On Drunks: The Heidgen Rule | Simple Justice

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