Depraved Indifference j-3 Page 5

  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.

  5

  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, Jaywalker 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 f irst, 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? W ould 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 of every photograph taken of a lawyer since the invention of the camera.

  For 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 w as 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 courtmartial 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 intoxi cated 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 r ecklessness.

  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-fiveyear-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 lim
it. 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 e very 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 cliche 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.

  6

  THE WASP ON THE WINDSHIELD

  On Monday, Jaywalker got a call from James Chippamunga. 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 w as 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 out of his Mercury and into the passenger seat of Chippamunga's Ford Crown Victoria, Jimmy handed him a large manila envelope.

  "Turned out I didn't need the subpoena after all," he said. "Soon as they saw it, they decided to make things easy."

  Vintage Jimmy Chipmunk. Jaywalker had no real idea how he'd gotten the stuff, whether it had been through force, threats, bribery, extortion or what. Then again, he didn't care. He'd done his part legally, by filling out the subpoenas. How Jimmy served them, or if he served them at all, was strictly Jimmy's business.

  He peeked into the envelope. Inside were maybe twenty or thirty sheets of paper, some loose, some stapled or paper-clipped together. Just by thumbing the edges of them, Jaywalker could see that they were police reports, diagrams of the crash scene, photocopies of photographs, and other documents relating to Carter Drake's case.

  "You're the best," he said.

  "Nuthin to it," said Jimmy Chipmunk.

  Back in his apartment, Jaywalker spent a couple of hours reviewing the documents, organizing them into subject headings and making handwritten notes. But he was no more than five minutes into the process when it became readily apparent to him that District Attorney Abraham Firestone had done his homework.

  First, he'd had his investigators thoroughly go over the crash sight. They'd been able to backtrack the path of the van, beginning at the end, where it had come to rest and ended up in flames. As it had gone over the embankment, it had not only torn up the grass, but it had uprooted shrubs and even left marks on rocks and trees that it had bounced off of after leaving the highway. But perhaps most telling were the skid marks the van's tires had left on the pavement.

  Skid marks, Jaywalker knew, could tell a story all by themselves. They were created by a driver hitting the brakes hard enough to lock up the vehicle's wheels on a dry, or relatively dry, surface. From the rubber left on that surface, a trained observer could tell exactly where the vehicle had been when the wheels first locked, in what direction it had been heading and how it continued once the brakes were applied. Furthermore, from measuring the length of the marks and adjusting for the coefficient of friction-a fancy way of describing the stickiness of the road surface at the time-it was possible to compute the speed the vehicle had been traveling.

  And the results were telling.

  The van had been right where it was supposed to be when its brakes locked up, squarely in its northbound lane and a good two feet from the double yellow center line. Its brakes had engaged and begun to slow it without any noticeable "fishtailing" or "drift" to either the left or right. Then there'd come a point where, still standing on his brakes, the van's driver had steered to his right, no doubt attempting to evade the southbound vehicle in his lane. Only when he'd left the pavement altogether and was on the narrow cinder shoulder of the road had the driver tried to correct back to the left. But it had been too late. A twelve-foot stretch with a complete absence of skid marks or tracks of any sort indicated that the van had taken off at that point, literally becoming airborne, before touching down again on the downslope of the embankment. The rest, as they say, was history.

  The posted speed limit on that stretch of highway was fifty miles per hour. Allowing for a margin of error of 5 mph either way, Firestone's investigators had been able to conclude that at the time the driver hit the brakes and locked up the wheels, the van had been moving at approximately forty-seven miles an hour.

  As for the oncoming vehicle, there was no way to estimate its speed because it had left no skid marks at all. Which meant that its driver had never tried to stop- either before, during or after the incident.

  What Firestone had done next was to have his investigators-and he'd assigned at least four of them to the task, on a full-time basis-go even further back in time, in an attempt to track Carter Drake's movements over the twelve hours that had preceded the crash. What they'd done was to interview witnesses, people who'd been with Drake the previous afternoon and evening. And althou
gh the names of those people had been blacked out in the copies of the documents Jimmy Chipmunk had dug up, a number of tantalizing clues emerged from the interview reports. There was, for example the "Sports Bar." And there were "Bartender A" and "Bartender B," along with the occasional unredacted pronoun revealing that one was male and the other female. And there were "Customers 1, 2, 3, 4 and 5." Finally, there was a word that kept popping up in the investigators' conversations with those bartenders and customers, a single pesky word that Jaywalker lost count of after the tenth repetition or so.

  And that word was tequila.

  Since Carter Drake hadn't bothered to stop and stick around after running the van off the road, it followed that he'd gone home, or at least someplace else. He hadn't turned himself in for another fourteen hours, no doubt figuring that any alcohol he'd consumed the night before would no longer be detectable in his system. And he'd been right about that. What he hadn't counted on was that the authorities could nevertheless show that he'd been drunk, by proving it circumstantially. In other words, if the prosecution could reconstruct the previous evening and put, say, ten drinks into Drake, they wouldn't need a blood test or a Breathalyzer; they could prove his intoxication through a combination of eyewitness accounts and expert testimony. It was an unusual way of doing it, but a creative one. And as far as Jaywalker was concerned, there was nothing legally objectionable about it.