Murder, yes...but (?)

Robert Bruce Kenney, my son-in-law, is an attorney. He has just plead before the New York State Court of Appeals, what could eventually be a precedent establishing case.

Six years ago, Kenneth Payne, a Shelter Island resident, shot and killed his former best friend. His victim, after being charged with sodomizing an 8-year old girl, had evidently also threatened to sodomize Payne’s girl friend and daughter. Payne was subsequently convicted by a Suffolk County Jury and sentenced 25 years-to-life. The jurors were given the choice of convicting him because of "depraved indifference" or "intentional murder." Unaware that the sentences for each would be identical, they declined to convict him of "intentional murder" because they were evidently impressed by some ambiguous statements he had made prior to and just after he shot his victim.

But because my son-in-law believes that Kenneth Payne showed neither "recklessness nor indifference" as to whether his victim lived or died, and because he used an elephant gun to shoot him at point blank range, he should have been convicted of "intentional murder." RBK is trying to persuade the Court that the jury committed a judicial blunder. If the Court agrees, Kenneth Payne could be released from prison.

In retrospect, it is possible that this jury, with fate’s connivance, had sought and found a legitimately judicial way for a community to express its gratitude to one of its good old guys for exterminating one of its really bad old guys. Perhaps the jurors intuitively knew that by their "contrived decision" this man might one day be set free?

<<>> As the Court weaves its path through thickets of judicial ambiguity, I am mindful of how Shakespeare’s Venetian Court carefully phrased its directive to Shylock (in order to keep him from exercising his valid demand for his debtor’s pound of flesh) ~ "Therefore [Shylock] prepare thee to cut off the flesh. Shed thou no blood, nor cut thou less nor more but just a pound of flesh. If thou takest more or less than a just pound . . . thou diest, and all thy goods are confiscate!" Shylock won, but lost! Payne lost, but may yet win!

We will revisit this case when the Court of Appeals hands down its decision.