Depraved Indifference. Joseph Teller

section 125.10, entitled “Criminally Negligent Homicide.”

      

      A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.

      

      And down the page to sections 125.12 and 125.13, “Vehicular Manslaughter,” which was subdivided into two parts, each premised upon the degree of intoxication of the operator of a motor vehicle. If the driver was drunk, it was second-degree vehicular manslaughter; if he was really drunk, it was first degree.

      But the big difference wasn’t in the titles of the various sections. The big difference was in the penalties they carried. Criminally negligent homicide and vehicular manslaughter in the second degree were class E felonies, with maximum sentences of four years each and no mandatory minimum. For first-degree vehicular homicide, the maximum went up to seven years, but there was still no minimum. In other words, a defendant could be convicted of any of those crimes and still end up with a fine, or thirty days in jail, or probation.

      Murder was a different story.

      Murder sentences began at fifteen years to life, and went up to twenty-five to life. That meant a convicted defendant would have to serve the minimum—fifteen or twenty-five, or something in between the two extremes—before even being eligible to see the parole board.

      Which meant that the wording of the statute became crucial.

      What, for starters, did depraved indifference to human life mean? Jaywalker checked the two definition sections of the penal law, first the general one near the beginning of the volume, and then the specific one that related only to homicides. But neither section made any reference to depraved indifference to human life, or, for that matter, depraved indifference, depraved, indifference, or indifferent. Nowhere was there the vaguest of clues what any of those terms was supposed to mean. Yet even now, Jaywalker could see with absolute clarity that whether Carter Drake got his wrist slapped or his head handed to him it was eventually going to come down to whether twelve rather randomly selected citizens of Rockland County would believe that those five words, depraved indifference to human life, fairly described Drake’s state of mind the night of the incident.

      So Jaywalker couldn’t afford to sit around and congratulate himself on his clairvoyant powers. Well, perhaps the investigator Jaywalker could. But the once-and-future lawyer Jaywalker couldn’t; he had some work to do. The problem was that legal research had never been his favorite pastime, or even on his top-ten list, for that matter. He’d found that out as early as law school, marveling at how some of his classmates could spend hours—hell, days—holed up in the library, reading cases that dated back hundreds of years. Those same classmates invariably had all the answers when called upon in class the next day, while Jaywalker hid out in the back row, avoiding eye contact with the professor. They got A’s on midterm and final exams, while Jaywalker struggled to get B’s and C’s. They passed the bar exam with flying colors, while Jaywalker squeaked by on the second try. And they landed jobs with the top firms or clerkships with prominent judges, while Jaywalker strapped on a gun and went to work for the DEA. Now, almost thirty years later, he had no idea what his former classmates were up to. He didn’t bother checking the “Class Notes” section of his alumni bulletin and hadn’t heard that any of them had become president or attorney general yet. He assumed they were all making tons of money and was pretty sure that none of them was currently riding out a three-year suspension from practice. But he seriously doubted that any of them had tried more criminal cases than he had, or won a larger share, or had more fun along the way.

      Yet like it or not, Jaywalker knew the time had come to get down to some serious research. So he made himself a grilled-cheese sandwich, watched a few innings of a Yankee game and took a long walk by the river. Tomorrow, after all, was another day.

      Chapter Five

      Bad News Indeed

      When a statute uses a term without defining it—as the penal law had done in the case of depraved indifference to human life—there’s a rule of statutory construction that says the words are to be given their ordinary, everyday meaning.

      Which means you start with a dictionary.

      So sometime around nine o’clock Sunday morning, Jay-walker did just that. Not for the human life part; thanks to the fact that neither the driver of the van nor any of the children occupants in it had been pregnant, those words turned out to be pretty unambiguous.

      He looked up indifference first, figuring it would be the simpler of the two terms to pin down. And so it was.

      in·dif·fer·ence, n. lack of interest or concern, apathy, insensibility, lack of feeling.

      Not much help there.

      de·praved, adj. Corrupt, wicked, or perverted—Syn. Evil, sinful, iniquitous, debased, reprobate, degenerate, dissolute, profligate, licentious, lascivious, lewd. See immoral.

      Was Carter Drake any or all of those things? If you read the editorials in the Rockland County Register, or listened to the press releases issued by Mothers Against Drunk Driving, the answer was an unqualified yes. But none of the definitions seemed more than minimally helpful. Was Drake corrupt, wicked or perverted because his actions had led to the deaths of nine innocent people? Wasn’t that too facile, too much an after-the-fact analysis? Suppose for a moment that Drake had been equally drunk and momentarily had found himself on the wrong side of the road, but had managed to pull back over before encountering any other vehicles? Could his conduct nevertheless be said to have risen to the level of evil, sinful and debased? Would the state still want to empanel a jury of his peers and call upon them to decide whether or not he was immoral?

      It took you full circle back to the same old quandary, the double standard that had little to do with the act of drunk driving and everything to do with the outcome. But for the presence of the van, Drake would be looking at a stiff fine; because of the presence of the van, he was a debased reprobate degenerate, staring at life in prison.

      So much for the dictionary, with all of its ordinary, everyday meanings. On to the case law, just as Jaywalker had expected and feared, and procrastinated over since the day before in a futile attempt at avoidance.

      

      Case law is a term used to describe the enormous body of opinions written by judges whose job it is to interpret laws—be they as lofty as constitutional amendments or as mundane as parking regulations—and determine if those laws have been adhered to or broken. The average trial generates no written opinions at all. It is only the unusually erudite trial judge, or the politically ambitious one, who bothers to commit his rulings to paper. Far more typical at the trial level is the one-word oral pronouncement: “overruled” or “sustained,” “granted” or “denied,” “guilty” or “not guilty.”

      It is, for the most part, at the appellate level that the writing takes place. And it takes place only if there’s been a conviction after trial. If there’s been an acquittal, the prohibition against double jeopardy prevents the prosecution from appealing. What’s sauce for the goose isn’t always sauce for the gander.

      The defendant who’s been found guilty below is permitted as a matter of right to appeal his conviction to a higher court, and from there to a succession of even higher courts, all the way up to—in the words of one of Jaywalker’s phrase-making jailhouse lawyers—“the Supremes,” if the judges of those courts deem the issue or issues involved sufficiently worthy of their attention. And at each step of the appeals process, those judges spell out the reasons behind their decisions in black and white. A single case can therefore generate dozens of written opinions, including separate concurrences and dissents, as it works its way up the appellate ladder, occasionally sidestepping from state court to federal court and back again. And just about every one of those opinions is collected, published and preserved for all eternity between the covers of some reporter, those standard-size, handsomely bound books that fill the shelves and form the backdrop