The Law, grrr

THE JOURNAL NEWS - December 3, 2005

WHITE PLAINS - Citing a legal technicality, a federal judge has tossed out the murder conviction of a reputed Tanglewood Boy’s gang member for the 1994 slaying of a college student outside a Yonkers bar.

U.S. District Judge Charles Brieant ruled that Anthony DiSimone, 39, the son of a reputed Lucchese crime family captain, was wrongly convicted of second-degree murder when a jury found him guilty of acting with "depraved indifference" in stabbing Louis Balancio to death February 4, 1994. DiSimone was cleared of intentionally killing Balancio.

In a different case decided last year, New York’s highest court, the Court of Appeals, ruled that a defendant could not be legally convicted of a reckless murder charge when prosecutors present a slaying as being deliberate.

Brieant cited that ruling - the case of Kenneth Payne, who was convicted in 2000 of a Long Island killing - in making his decision, which was filed yesterday in federal court in White Plains.

It was my son-in-law Robert Bruce Kenney who argued before the New York Court of Appeals that Kenneth Payne was convicted of murder under the incorrect charge that he had committed the crime while in a state of "depraved indifference." He contended that Payne had "intentionally murdered" his victim. And so, because the original charge was inappropriate, the Court of Appeals overturned that conviction - but since Payne could not be retried for the same offense (double jeopardy) he had to be set free. A most ironic legal twist! And now, it is precisely because of that ruling, that DiSimone, another murderer, will soon, like Payne, be released from prison.

For background on this legal morass, please go to the Archives on the right side of this page and click on October 2004. Then scroll down to those postings dated October 4, 2004, Murder, yes...but (?) and October 19, A Murderer Walks. A third posting on this subject is dated November 29, 2004, Murder will out.

Allow me to ask ~ Moses, what thinkest thou?