Depraved Indifference. Joseph Teller

the practitioner—or anyone else concerned enough or foolish enough to care—any one of those opinions can be found at a law library. All that’s needed is a citation, something that might be expressed as 6 NY3d 207, 211 (2005). Translate those hieroglyphics into English and you’d know to look for Volume Six of the New York Reporter, containing the decisions of the Court of Appeals, New York’s highest court, third series. You’d also know that while the opinion itself begins on page 207, the particular point you’re looking for is discussed four pages later, and that the case was decided in 2005.

      With the advent of the computer, the task has been rendered even easier. Gone are the days when a trip to a distant law library was required, not to mention the sheer strength to lug fifty or sixty pounds of books to a reading table. All that’s needed now is that little coded citation, or the name of a case or the number of a statute, or even a particularly vexing phrase lifted verbatim from the language of that statute.

      Depraved indifference to human life, for example.

      So Jaywalker could be an armchair researcher right in his own apartment, allowing himself snacks, bathroom breaks and even an occasional check of a ball-game score whenever he liked.

      

      It turned out that the phrase depraved indifference to human life was no newcomer to the language and hardly an invention of the legislators up in Albany. It had been around for centuries, in fact. One contributor to the Internet dated it as far back as 1762, tracing it to a court-martial judge’s condemnation of troops unnecessarily firing upon civilians, particularly women and children.

      In 1965 it found its way into New York’s penal law as a means to extend the reach of maximum punishment to offenders who caused the deaths of others, but whose actions fell outside the scope of the previous murder statute, which required either an intent to kill or the commission of an underlying felony during which a death occurred.

      An early example, from 1974, took up the case of a driver and passenger who picked up a severely intoxicated hitchhiker on a cold, snowy night. After robbing him and removing both his eyeglasses and boots, they forced him out of the car and onto the highway, where he sat helplessly for the next half hour, in temperatures near 32°F and near-zero visibility, until he was struck and killed by a speeding pickup truck. The New York Court of Appeals affirmed the robbers’ murder conviction under the depraved indifference theory.

      Next was a 1983 incident in which a man walked into a bar with a loaded gun. For a moment, Jaywalker thought that might be the beginning of a joke. But then the man announced that he was going to kill someone that night. And true to his word, he proceeded to fire his gun, killing another customer. He, too, was found guilty of depraved indifference murder. While the Court of Appeals affirmed his conviction, years later the same court, by then made up of different judges, would overrule the case, holding that it had misapplied the law. The defendant’s actions had either been intentional murder or not murder at all, said the later court; in no event had they constituted recklessness.

      Nor, said an intermediate appellate court, could the driver of a car be convicted of depraved indifference murder, even though he’d been racing another driver at speeds approaching a hundred miles per hour when he rear-ended a third car, killing two of its occupants and seriously injuring five others.

      Yet in 2003, the Court of Appeals affirmed the depraved indifference murder conviction of a defendant who’d pushed a twelve-year-old boy into the water and walked away, leaving the boy to drown.

      Most recently, and most relevantly, a twenty-five-year-old Valley Stream, Long Island, man had gotten behind the wheel of his pickup truck with what was later determined to be a .28 blood alcohol reading, more than three times the .08 legal limit. He somehow managed to get onto the highway, but in the wrong direction. Ignoring the beeping horns and flashing lights of oncoming cars, he continued for two full miles, before crashing into a limousine returning from a wedding, killing two people, one of them a seven-year-old girl, who was decapitated. After a hard-fought trial, the jury found him guilty of murder, concluding that his actions revealed a depraved indifference to human life. And although the appellate courts hadn’t yet begun to review the case, Jaywalker was pretty sure they’d find a way to affirm the conviction.

      There’s an old saying among lawyers that goes, “Bad cases make bad laws.” What that means is that when the facts are truly egregious, not only do juries tend to convict even in the absence of compelling legal evidence, but judges then strain to uphold those convictions. And it was Jaywalker’s guess that the Valley Stream case, and a few others like it, signaled a new trend in the law as it applied to drunk drivers.

      Over the decade preceding the Valley Stream conviction, Jaywalker had been able to find only a handful of New York cases in which depraved indifference murder had been used successfully in the context of motor vehicle accidents. And that was despite the fact that, according to MADD statistics, upward of sixteen thousand people die from drinking-related driving accidents nationally every year.

      But it seemed all that was about to change.

      Why?

      Because bad cases make bad laws.

      When a seven-year-old girl gets decapitated and the jurors are forced to hear a mother’s sobbing account of having held her daughter’s severed head in her hands, legal niceties have a way of yielding to raw emotions—not only in the jury box, but later on, as well, in the conference rooms of appellate judges. And once a verdict such as the Valley Stream one is upheld, it becomes precedent and gets applied to other cases that follow it, cases in which the facts aren’t nearly as extreme. But precedent is precedent, and subsequent defendants would invariably be more likely to be convicted of murder, and have their convictions affirmed, because of the Valley Stream driver and the young mother cradling her daughter’s head in her hands.

      Bad cases make bad laws.

      And to Jaywalker, there could be no doubt about the impact that cliché would have on the case of Carter Drake. Instead of causing merely two deaths, Drake had caused nine. Instead of having killed a single child, he’d killed eight of them. And in place of the image of a severed head was the specter of eight tiny bodies, charred almost beyond recognition. Whether the legislature had ever intended the depraved indifference section of the murder statute to apply to motor vehicle accidents no longer mattered. The Valley Stream verdict now served as an exclamation point following the handful of earlier cases that had expanded the application of the law in that direction, and short of a highly unlikely reversal by the appellate courts, there’d be no turning back.

      Which was good news for prosecutors, Mothers Against Drunk Driving and all the sober, law-abiding users of the state’s roads and sidewalks.

      But bad news indeed for Carter Drake.

      Chapter Six

      The Wasp on the Windshield

      On Monday, Jaywalker got a call from James Chippa-munga. Not that Jimmy would say much over the phone; he never did. In that respect, he exhibited all the paranoia of an international terrorist, a high-ranking member of organized crime, or a cop on the take—none of which he was. He simply didn’t trust phones—fuckin’ landlines, he called them—and preferred to do his talking in person.

      “We need a meet,” said Jimmy. Not a meeting, a meet.

      “Where?” asked Jaywalker.

      “The usual.”

      “When?”

      “Hour from now.”

      And that was it.

      

      The usual was as far west as you could go on 125th Street without getting wet, right by the banks of the Hudson River, if the Hudson River still had banks. What it had instead was a parking area, or at least a place where you could sit in your car and watch to see if anyone was watching you.

      It suited Jimmy Chipmunk just fine.

      As soon as Jaywalker had climbed