where the defendant intended to kill someone. Gone are such archaic notions as premeditation or malice aforethought. Nowadays in New York, you kill someone while intending to kill someone, it's murder.
Jaywalker had tried dozens of intentional murders. He'd tried one where the defendant, intending to kill a suspected informer, had aimed poorly and mistakenly killed a man standing next to him. Murder nonetheless. He'd defended a serial murderer who'd killed six almost randomly selected victims over as many weeks, but when asked why, could offer no better rationale than 'I found out it was something I could do.' Still, at the time he'd shot each of them, he'd intended to kill them.
Felony murder was a bit different. There the legislature has decreed that under a certain specific combination of circumstances, there can be murder even in the absence of an intent to kill. How? If a defendant is engaged in the commission of any of several enumerated serious felonies-think robbery, kidnapping or arson, for good examples-and if he's armed with a deadly weapon or knows that an accomplice is, he can be convicted of murder if someone dies in the process. Those crimes are deemed so dangerous, and so likely to lead to a death, that the lawmakers have substituted the defendant's participation in them for his actual intent to kill anyone.
Again, Jaywalker had tried his share of felony murders, though the number was far fewer. And there was an interesting reason for that. Caught after a robberygone-bad, perpetrators invariably rush to distance them selves from the resulting death. They'll readily implicate an accomplice as the planner or the one who put the tape over the victim's mouth, insisting that their own role was minor and in no way related to the fatality. 'We were just after his money and his watch, was all. And I stayed in the car the whole time. I never meant for him to die or anything like that.' Felony murder.
But the list of crimes that could trigger a felony murder didn't include drunk driving or speeding or being in the wrong lane of a two-lane highway, or anything remotely like those offenses. How then, assuming that Carter Drake hadn't run the van off the road in order to intentionally kill its occupants, could the prosecution possibly charge him with murder?
Jaywalker knew the answer, but he still had to look it up in order to remind himself of the precise wording of the statute. And there it was, sandwiched in between intentional murder and felony murder, buried in paragraph 2 of section 125.25 of that perennial bestseller and summer-reading favorite, the New York State Penal Law.
A person is guilty of murder when…under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which causes a grave risk of death to another person, and thereby causes the death of another person.
From there, Jaywalker leafed back a few pages to 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 r eally 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, f airly 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 onceand-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.
5
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
