Legal fog lifts ?

I asked my son-in-law Robert Bruce Kenney to explain why some convicted New York murderers are now being set free. Please refer to my recent post, 12.3.05, The Law, grrr.

THE GOOD, BAD AND THE GUILTY

• During October 2004, I represented Kenneth Payne before New York State’s highest court, the Court of Appeals. The charges against him had arisen out of an incident where after an argument with his neighbor over the telephone, the defendant went to his closet, took out his twelve-gauge shotgun and then walked next door and confronted him. After heated words, Payne fired a single blast into the stomach of his old friend, killing him instantly.

• Since 1987 the Court of Appeals has tried to warn state prosecutors that a defendant cannot be convicted simultaneously of depraved indifference murder and intentional murder. It reasoned that if both counts are charged, they must be charged in the alternative because: one who acts intentionally in shooting a person to death [intentional murder] ~ cannot at the same time act recklessly (depraved indifference murder). The act is either intended or not! It cannot be both. Depraved murder results not from a conscious intent to cause death, but from an indifference to the risks of the defendant’s behavior (like driving a vehicle into a crowded street corner and killing a stranger).

• Since 1978, prosecutors in NY have been charging "twin-count" indictments, depraved and intentional in every murder case, where they cannot prove the intent to kill. Juries are drawn to compromise. When given both options, they may believe they are giving defendants a break by convicting them only of depraved murder. In fact, both charges carry the same sentence (25 years to life).

• Payne was clearly an intentional shooting. My client fired his "elephant gun" at point-blank range. If there was ever an intentional killing, this one was it! And the Court of Appeals agreed. However, unlike in previous cases, Payne had only this single charge and instead of a reduced sentence as in prior reversals, he was set FREE. Hence, the uproar! Murderer Walks!

• Sadly, NY lawyers are now on the Payne bandwagon. They are trying to have decisions applied retroactively to old murder convictions. Defense attorneys who long ago lost their state appeals are now going to federal court to challenge the convictions under this new ruling and they are having some success.

• But prosecutors in NY are now ceasing the practice of giving juries "twin-count" murder options. However, until this new legal principle is more clearly understood, other murderers will be set free.

Robert Bruce Kenney, Attorney at Law

I must say, you have really stirred the legal pot! And all this time, I thought you never inhaled - Papa