Depraved Indifference. Joseph Teller

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СКАЧАТЬ his silent but overt expression of complete faith that Jimmy would somehow work his magic and overcome all obstacles, bailiwick related or not. After all, they weren’t talking the niceties of jurisdiction here, or venue; they were talking clout.

      “I suppose…” Jimmy’s voice trailed off. “Gimme a coupla days, willya?”

      “You got it,” said Jaywalker, throwing back the last of his fourth large Cokes. God, they were huge. The bartender, a former NYPD lieutenant who’d worked under Cippamunga at one time, was either an extremely generous soul, or else he’d somehow mixed up the flower vases with the soda glasses. Jaywalker took a wet paper napkin off the bar and lifted it to his mouth, not so much to wipe anything, but to stifle what otherwise might have proved to be a belch of room-clearing proportions. All the while he kept his thighs tightly crossed, desperately trying to forestall a fourth trip to the men’s room for as long as possible, or at least another thirty seconds.

      

      That had been Friday night, or, technically, early Saturday morning. Until he had Carter Drake’s written account of his actions, or whatever Jimmy Chipmunk could turn up in the way of police reports, there wasn’t much more for Jaywalker to do on the case. So he slept late Saturday morning—the real Saturday morning—late being somewhere in the neighborhood of seven o’clock. Then he downed his usual breakfast, which consisted of a couple of pretzels and a glass of iced tea. The pretzels were the old-fashioned sourdough kind, big enough to choke a horse and hard enough to break a tooth on. The iced tea was a homemade concoction, with enough sugar to kill a diabetic, and a generous squeeze of fresh lemon juice that, to Jaywalker’s way of thinking, balanced the sugar by acting as a sort of natural insulin. And right there he had all of what he considered the four essential nutrition groups—salt, sugar, caffeine and crunchiness.

      With nothing else to do, Jaywalker spent the afternoon hitting the books. It wasn’t just a matter of needing a refresher course to shake off the accumulation of more than two years of rust. The fact was, in his twenty-plus years of defending criminals, Jaywalker had never handled, much less tried, a case even remotely similar to Carter Drake’s. Under New York law, 99.9 percent of murder cases fall into two categories. There are intentional murders, and there are felony murders, and Jaywalker had had his share of both. An intentional murder, simply put, is one 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 robbery-gone-bad, perpetrators invariably rush to distance themselves 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 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 СКАЧАТЬ