Deciding Depraved Indifference: Jury's or Judge's Domain?
A divided Court of Appeals recently affirmed depraved indifference murder convictions in three cases involving automobile drivers who either were highly intoxicated or under the influence of drugs.1 I focus on two of the cases, People v. Heidgen and People v. McPherson. They illustrate the court's ongoing struggle with the consequences of its controversial decision in 2006, People v. Feingold,2 to overrule its 1983 decision in People v. Register.3 The reader's familiarity with Register, Feingold and the key decisions between Register and Feingold is assumed.
In both Heidgen and McPherson the defendant was highly intoxicated, drove at night for miles on the wrong side of a highway at a speed well in excess of the limit, and collided head-on with another vehicle, killing the drivers of both vehicles and, in Heidgen, also killing a 7-year-old girl (and causing grievous injuries to members of her family). Chief Judge Jonathan Lippman, joined by Judges Victoria Graffeo, Eugene Pigott Jr., Jenny Rivera and Sheila Abdus-Salaam, wrote the opinion of the court; Judges Robert Smith and Susan Phillips Read dissented, with Read concurring in a separate opinion.
The central issue in Heidgen and McPherson was the legal sufficiency of the evidence to establish the requisite mental state under Feingold: "an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply doesn't care." (By contrast, under Register, the sole mens rea required was recklessness—i.e., being aware of and consciously disregarding a substantial and unjustifiable risk of death.)4 Under the settled standard of review, "[a] verdict is legally sufficient when, viewing the facts in a light most favorable to the People, there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt." As the majority wrote (the dissenters did not dispute the point), "cases involving a depraved indifference to human life are highly fact-specific and dependent upon the individual defendant's particular mental state—a factor that may be extremely difficult to establish."
In Heidgen and McPherson, the majority marshaled an array of facts from which it reasoned that the evidence was legally sufficient. Its ultimate conclusion in Heidgen, equally applicable to its analysis in McPherson, was that:
Based on this evidence, the jury could have found that, despite defendant's intoxication, he perceived his surroundings. The jury could have reasonably concluded that defendant drove, knowing that he was on the wrong side of the road and with an appreciation of the grave risks involved in that behavior. One who engages in what amounts to a high speed game of chicken, with complete disregard for the value of the lives that are endangered, is undoubtedly an individual whose culpability is the equivalent of intentional murder.
The majority twice stressed—and the dissenters did not dispute—that "[c]ircumstantial evidence can be used to establish the necessary mens rea."
Before offering an explanation for the disagreement between the majority and the dissenters, despite their agreement on the nature of the mens rea requirement and the standard of review, one aspect of the evidence in McPherson and one aspect of the evidence in Heidgen should be identified.
Immediately before getting into his car, Franklin McPherson had been arguing with his girlfriend and fired several gunshots. From this evidence, both the majority and Judge Smith agreed that the jury reasonably could have concluded that McPherson had been enraged when he got into his car. And Martin Heidgen told the police that he had gotten into an argument with an ex-girlfriend, went into "self-destruct mode," was "very upset and depressed" and had financial problems. The majority relied on this evidence; Judge Smith did not.
Roles of Judge and Jury
What explains the divergent conclusions reached by the majority and the dissenters? The answer lies in fundamental differences between two lines of Court of Appeals jurisprudence on the respective roles of juries and judges in determining the mens rea of a criminal defendant. Under the first, a venerable one, the jury's role in this quintessentially fact-bound determination is preeminent. Under the second, one of more recent vintage, the judge's role is far greater and, indeed, ascendant. The majority's opinion is consonant with the first; Judge Smith's opinion is consonant with the latter.
In People v. Flack,5 decided in 1891, Judge Charles Andrews wrote for a unanimous Court of Appeals and addressed the subject of the roles of juries and judges on the issue of criminal intent, one of the states of mind encompassed by the term "mens rea." Sixty years later, Justice Robert Jackson for a unanimous Supreme Court in Morissette v. United States,6 quoted Judge Andrews' "well stated"7 words at length. Andrews wrote, in reversing a conviction due to jury instructions that tended to resolve against the defendant the question of intent:
However clear the proof may be, or however incontrovertible may seem to the judge to be the inference of a criminal intention, the question of intent can never be ruled as a question of law, but always must be submitted to the jury. Jurors may be perverse; the ends of justice may be defeated by unrighteous verdicts, but so long as the functions of the judge and the jury are distinct, the one responding to the law, the other to the facts, neither can invade the province of the other without destroying the significance of trial by court and jury.8
Similarly, in Morissette, Jackson stated that "juries are not bound by what seems inescapable logic to judges."9