You have to be in a select club to appreciate the relief that must have swept over John Rivera when he learned the news.  It had been a long fight.  From Oren Yaniv at the Daily News :

Rivera was convicted in 1997 of pumping a bullet into the head of his estranged wife, Kimberly, during a struggle over custody of their infant son, who was just a few feet away at the time of the shooting.

He claimed that his spouse, an NYPD scooter cop, was depressed and turned the gun on herself.

A jury acquitted Rivera of intentional murder but found him guilty of a fallback charge of depraved indifference murder.

After affirmance by the Appellate Division, and leave denied by the Court of appeals, he had only a habeas before the federal courts left.  But in the interim, there was a fundamental shift in New York law.  The  Payne and  Feingold decisions put an end to the common practice of double charging murder defendants with intentional and depraved indifference murder.  If they didn’t convict on the former, the prosecution got a second bite with the latter. That’s how they nailed Rivera.

On August 9, 2011, the Second Circuit  issued its opinion holding that Rivera, having been acquitted of intentional murder, could not convicted of depraved indifferent murder (both reflecting different formulations of Murder 2º). The preliminary issue on appeal was whether the standard on habeas review was the substantive state law at the time of his initial conviction by jury, or when the conviction became final.  The Circuit held that the appropriate law was that in effect 90 days after leave was denied by the Court of Appeals.

Viewing the evidence adduced at Rivera’s trial in the light most favorable to the verdict, as we must at this juncture, see id. at 319, a reasonable jury could have found either of two possible scenarios to explain Cassas’s death. First, a reasonable jury could have found, as the State argued at trial, that Rivera plotted his attack on Cassas in advance, lured her to his home on the night of the murder, and then deliberately “put a nine millimeter semiautomatic Beretta handgun to [her] head ․ and pulled the trigger.” J.A. 28. After Hafeez, however, such a “quintessentially intentional attack” could no longer be categorized as depraved indifference murder. See id. at 258–59, 762 N.Y.S.2d 572, 792 N.E.2d 1060. Thus, to the same extent as in Hafeez, in Rivera’s case, no reasonable jury could find Rivera guilty of depraved indifference murder rather than intentional murder on such facts.

Despite the fact that the Brooklyn District Attorney tried that case as purely an intentional murder, they tried to sell a new spin to the Circuit.

Alternatively, the State now contends—contrary to its position at Rivera’s trial—that a reasonable jury could also have found that, after bringing the gun to his meeting with Cassas in an attempt to scare or intimidate her, Rivera accidentally shot Cassas when the gun discharged during a struggle.1 The State argues that this alternative set of facts would support a conviction for depraved indifference murder because the act of “confronting [Cassas] ․ with a loaded weapon, thereby precipitating a struggle for the gun,” was sufficiently reckless to render Cassas’s resulting death depraved indifference murder. Appellee’s Br. 39–40. This argument is without merit, however, as such facts would not rise to the level of depraved indifference murder even under Register and Sanchez.

One might think that pretty much covers it, having both addressed the reality of the evidence offered in Rivera’s conviction as well as dismissing the fantasy offered to sustain it in the face of challenge.  As the Court expressly held, “no reasonable jury could find Rivera guilty of depraved indifference murder.”

But that was said in the heat of summer.  In the cool of winter, minds change, thoughts vary and, apparently, reversals disappear.

In a highly unusual move, Second Circuit judges pulled back a detailed, 23-page August ruling freeing John Rivera and substituted a four-page decision keeping him locked up. The new paperwork was made public last week.

The Second Circuit, without much fanfare, flipped completely and issued a new opinion in Rivera’s case. This time, Rivera lost.  Shocking.

What changed?

Subsequent to our decision, Respondents filed a petition for panel rehearing or rehearing en banc, and the United States Supreme Court decided Cavazos v. Smith, which strongly reasserted “the necessity of deference to state courts in § 2254(d) habeas cases.

It’s not entirely clear why the court bothered to include respondent’s’ petition for rehearing en banc, inasmuch as that’s about as significant as a litigant threatening to appeal. So what?  Perhaps it was tossed in because the reliance on Cavazos just wasn’t going to pass the laugh test.

After much reflection, we now reverse course. Applying the law as it existed after Rivera’s conviction became final in July 2004, we find that although evidence of “significantly heightened recklessness,” People v. Sanchez, 98 N.Y.2d 373, 380, 748 N.Y.S.2d 312, 777 N.E.2d 204 (2002), was slim, at best, giving the state courts and the jury the utmost deference, we cannot find that the evidence was so completely lacking that no rational jury could have found Rivera guilty of depraved indifference murder.

Is the court suggesting that gave only cursory reflection to reversing a murder conviction the first time?  The notion that the panel hadn’t given “much reflection” to its original decision, reversing Rivera’s conviction for murder of his police officer wife seems ridiculous. It’s impossible to believe that the court didn’t agonize over the reversal, giving its deepest possible reflection before deciding.

But then, what of the express holding that “no reasonable jury could find Rivera guilty of depraved indifference murder?”  It was suddenly reduced to “slim, at best,” but enough to squeak by.

Therefore, we have no choice but to uphold the decision of the state court.

And poof, the reversal of John Rivera’s conviction for depraved indifference murder, despite the acquittal for intentional murder and the evidence, except in some fantasy dreamed up while crossing the Brooklyn Bridge on their way to Foley Square, magically disappeared.