One of the earliest posts at SJ was about the case of Martin Heidgen*, a 25-year-old who, drunk and driving the wrong way on the Meadowbrook Parkway, caused the decapitation of a beautiful 7-year-old flower girl, Katie Flynn, on her way home from a wedding, along with the driver of the wedding limo, Stanley Rabinowitz. It was a horrible death, the sort that raised bile in anyone’s throat.
That post was written March 1, 2007. Yesterday, more than six years later, the New York Court of Appeals ruled on the case. In the interim, similar cases came along, suffering from the same legal flaws, such as Franklyn McPherson, another drunken kid who killed.
Other things happened in the interim as well. The Legislature passed “Katie’s Law,” creating the crime of aggravated vehicular homicide. And the Court of Appeals decided People v. Valencia, essentially the same case as Heidgen’s and McPherson’s but for one huge distinction, that no one died, and one irrelevant distinction, that Valencia was tried non-jury. The Court rejected the contention that driving drunk demonstrated a depraved indifference to human life. The world seemed to right itself.
But not right enough. The Court of Appeals affirmed the convictions of Heidgen and McPherson. In an opinion written by Chief Judge Jonathan Lippman, the law was thrown back into a state of confusion:
However, as noted above, each jury rejected the conclusion that the defendant was too intoxicated to form the requisite intent. Despite defendants’ seemingly inexplicable behavior, the People simply are not required to provide a motive for their conduct. Rather, depraved indifference can be proved circumstantially. Here, in each case, a rational jury could have found that the defendant, emboldened by alcohol or drugs, appreciated that he or she was engaging in conduct that presented a grave risk of death and totally disregarded that risk, with catastrophic consequences.
The Court parsed the record to cherry-pick the odd word that might provide even remote support for its holding, provided you squinted hard and ignored the overwhelming evidence to the contrary.
In dissent, Judge Robert Smith calls out the sub rosa contraditions of the majority:
We have said several times that depraved indifference to human life is a very unusual state of mind (see People v Lewie, 17 NY3d 348, 359 ; People v Suarez, 6 NY3d 202, 212 ; People v Payne, 3 NY3d 266, 270 ). But experience shows that juries, especially in cases with inflammatory facts, will often find depraved indifference where the evidence does not support it, and as a result we have reversed many convictions in recent years because the proof of this mens rea was insufficient (see People v Barboni, 21 NY3d 393, 408 n*  [Smith, J., concurring] [collecting cases]).
Cases in which intoxicated drivers kill innocent people are among the most inflammatory, and thus among the most likely to generate depraved indifference murder convictions where a conviction of a lesser (but still serious) crime is all that is warranted. These three cases, to my mind, exemplify that problem. The majority says “intoxicated driving cases that present circumstances evincing a depraved indifference to human life are likely to be few and far between” (majority op at 2) –yet today it affirms all three of these convictions. In doing so, it departs from the rigor we have previously shown and makes it more difficult to attain our long-sought goal of reserving convictions of this crime for the very few cases that warrant them.
Most notably, Judge Smith strikes at the core of the problem, that these cases “are among the most inflammatory,” and thus the most likely to be played by prosecutors in search of a huge headline and most likely to blind a jury by its passion and fury. Right crime? Wrong crime? There was no way a defendant in a case like this would walk away. No way.
Concurring with Judge Smith, Judge Susan Read added to the irony of the majority’s opinion:
In sum, the legislature has addressed the proper standards for assessing the culpability of drunk drivers who cause fatalities, and the proper measure of their punishment. And it did not choose to do so by amending the second-degree murder statute, which the majority now reinterprets so as to uphold these convictions for depraved indifference murder.
To the extent there is a takeaway message in Judge Lippman’s opinion, it comes from his noting that cases where drunk driving would amount to depraved indifference murder would be “few and far between.” If the Court is saying that “we’ll let you have these three defendants, but don’t do it anymore,” then the decision is not only morally bankrupt, throwing these defendants away in the name of preserving District Attorney Kathleen Rice’s self-aggrandizing, headline-grabbing decision to prosecute them for murder, but ineffective.
Once the Court says it can be done, it will be done. A headline that a defendant in a heinous drunk driving death needs to include the word “murder,” or it won’t have that sexy impact come re-election time. So what if the sentence available for manslaughter is 15 years (where Heidgen got 18), or that the sentence under Katie’s Law for aggravated vehicular homicide is the same as murder, 25 years. And poor flower girl Katie Flynn is still dead. Nothing can bring her back.
* Edited from mistaken “Robert” to correct “Martin.”