Ordinarily, a defendant claiming that he murdered someone and meant it is a darn good reason to convict him and make him a guest of the state for a good, long time.  But for Omar Gutierrez, this is the argument for freedom in his habeas proceeding.  And it’s got the Second Circuit troubled.

Via the New York Law Journal, Guitierrez was convicted of murder in 2001, but of the “depraved indifference” flavor pursuant to Penal Law 125.25(2), defined as murder 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.

Between 2001, when Guitierrez was convicted, and 2005 when his state appeals were unsuccessfully exhausted,  Between those years, a funny thing happened: the definition of depraved indifference murder significantly changed.  While a 2002 decision, People v. Sanchez, held that depraved indifference murder didn’t depend on the defendant’s subjective intent, a 2004 decision, People v. Payne, made a remarkably clear point when it stated:

a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder.

Almost?  The facts of Guitierrez’s case were pretty straight forward. After having a fight with the victim in a bar, Guitierrez followed him outside and stabbed him in the heart, killing him.  Almost?

Under New York law, mens rea isn’t a magical secret in the dark recesses of a defendant’s mind, but rather intent as reflected in objective conduct.  If you did something that, objectively, shows you meant to do it, then you meant to do it.  And it’s easy to see Guitierrez’s point that following his victim out of a bar after a fight, pulling out a knife and thrusting it into his heart sounds awfully intentional. 

Of course, there remains the argument that he was angry, his mind and judgment were clouded with adrenalin and machismo, and the only thing he wanted to accomplish was to get the other guy to back off and accept his dominance.  That the knife ended up in his heart is pure kismet, a lucky (or more accurately unlucky) strike that could just as easily have merely scratched his adversary and served the same purpose.  He didn’t want the other guy dead, but just to concede that he was the alpha male.  But harsh reality intervened.

All of this puts the 2d Circuit in an awkward position. 

“The change in New York law on depraved indifference murder has created a series of problems for federal courts on habeas review,” he wrote. “Since the questions these cases raise are ones that are profoundly of New York law, when New York courts have spoken on the merits of a conviction for depraved indifference murder and on whether the evidence in a particular case was legally sufficient, we have tended to defer to that judgment.

“We have done so because, ultimately, how New York wishes to define depraved indifference murder is a question for New York,” he continued. “Difficulties arise, however, when, as in this case, New York affirms the conviction on procedural grounds that are not in keeping with federal requirements. For then we are left to judge a conviction that New York courts have not evaluated on the merits.”

If it sounds particularly wiggly a rationale, that’s because it is. Obviously, interpretation of New York law should be left to the New York courts.  But that’s what the New York Court of Appeals did in Payne and its predecessors.  What “series of problems” is Judge Calabresi seeing? 

Calabresi therefore certified two questions for the Court of Appeals: whether Gutierrez’s conduct was consistent with the standard for depraved indifference murder, and whether the changes in the law between his trial and final conviction should apply retroactively.

The first question sounds remarkably like a full-blown punt, the circuit asking the Court of Appeals to decide the case for them.  As for retroactivity, Payne wasn’t quite a new rule, but a refinement of the 1983 decision in People v. Register, which held that “depraved indifference” is a mens rea requirement. While it provided some additional clarification, the rule already existed.

But Judge Calabresi seems to signal the real problem:

“Let us be clear: We, as a federal court, are reluctant to release defendants whose defense to depraved indifference murder is that they were guilty of intentional murder, where those defendants were acquitted of intentional murder and convicted of depraved indifference murder at a time when New York seemed to permit this,” the judge said. “We will, of course, follow the law of New York. But before we order the release of such defendants, we wish to be sure that this is the result New York wants.”

When Guitierrez was tried, the common practice was for prosecutors to charge both intentional murder and depraved indifference murder as alternatives, leaving it to the jury to decide under which subdivision it preferred to convict.  Indeed, the point was to foreclose the defendant’s argument that he meant to kill or was merely reckless in killing, and cover both bases.  The degree of crime was the same, as was the punishment. For the prosecution, either one would do.  For the defense, there would be conviction either way.

This is where the line in Payne, that a direct one-on-one killing could rarely be depraved indifference, caused problems. The prosecution would be required to prove intentional murder, and couldn’t merely throw both theories out there and let the jury pick which flavor it preferred.

You can’t blame the circuit for feeling queasy about the idea of cutting Guitierrez free based on the argument that he committed intentional murder.  If ever an argument comes off as utterly disingenuous, this is it. Yet this is also the law, ugly though it may be.  And applying the law is why they pay circuit judges the big bucks.

The New York Court of Appeals is under no duty to answer the certified questions, though it usually does.  The problem is that they will be confronted with the same ugly choice, and whether they will adhere to their view in Payne, muddy the waters further to avoid setting Guitierrez free or desperately try to find some way to circumvent the hard questions.  No judge wants to reverse a conviction based on the defense that killer intended to kill.