Last month, the Court of Appeals decided an important new case clarifying the difference between the mens rea of depraved indifference and reckless. In People v. Lewie (Ct. App. 6/9/2011) (Smith, J.) (5-2), the Defendant was found guilty of both Manslaughter 2º and Reckless Endangerment 1º; implicitly, therefore, the jury believed that she acted both recklessly and with depraved indifference in the death of her son.
At trial, the People's theory was that the Defendant's boyfriend killed her son. They charged two counts of Manslaughter 2º: one on an omission theory that the Defendant knew her son had suffered injuries but did not seek help and another on a negligent entrustment theory: that in the last 45 days of her son's life, she knew she was putting him in danger but leaving him in the care of the boyfriend. She was also charged with Reckless Endangerment 1º and Endangering the Welfare of a Child. The Appellate Division reversed on the first theory of Manslaughter 2º but otherwise affirmed. The Court of Appeals affirmed the conviction for Manslaughter 2º (under the second theory) but reversed on Reckless Endangerment 1º. "As to both counts, the critical question is what the evidence shows as to defendant's state of mind when, over a period of six weeks, she repeatedly left her baby with the man who abused and eventually killed him."
The majority found abundant evidence to prove recklessness. "We conclude that the evidence is sufficient to support the jury's finding that defendant knew such a risk existed. The evidence shows that defendant knew, or at least believed it possible, that Flint [the boyfriend] was hitting, shaking and biting her child. She knew that he was capable of inflicting significant injury on an adult, herself. She believed him capable of killing a small animal in a rage. She was worried enough to tell Flint that, if he was angry, he should 'shake a teddy bear, not Colbi.' Yet, she left Colbi with Flint again and again — even after she saw, on November 12 and 13, that Colbi had been seriously hurt."
Curiously, the People did not charge Murder 2º under a Depraved Indifference theory, even though they charged Reckless Endangerment 1º, which requires the same mens rea, and there was a death. The majority explains this as an exercise of "prosecutorial discretion." In any event, it found evidence of the mental state lacking. First, it noted the distinction between reckless and depraved indifference, pointing out that "depraved" does not necessarily mean what most people think it does. "The distinction between conscious disregard of a known risk to human life (required for a reckless manslaughter conviction) and depraved indifference to human life (required for a depraved indifference murder or first degree reckless endangerment conviction) can be hard to grasp, especially in a disturbing case like this one. Consciously to disregard a substantial risk to the life of one's own child — as the jury found, on legally sufficient evidence, this defendant did — is shocking behavior, and in ordinary speech people might call it 'depraved.' But 'depraved indifference to human life,' as used in the murder and reckless endangerment statutes, is something even worse ... [A] person who is depravedly indifferent is not just willing to take a grossly unreasonable risk to human life — that person does not care how the risk turns out."
Here, the Defendant was aware of the risk that her boyfriend might harm her son, but she was not indifferent to it. She did care and worry that something bad might happen. "Some of the evidence most damaging to defendant on the manslaughter count is actually favorable to her on the depraved indifference issue. Thus her statement that she 'was scared' and 'never knew what she was going to come home to' shows that she was fearful of harm to her baby, not that she was indifferent to the possibility. And in telling Flint to 'shake the teddy bear instead of Colbi,' she was trying, however weakly and ineffectively, to protect the child." (LC)
What is the "interest of justice" anyway?
"Interest of justice" is used in a couple of places in the CPL. One is for a dismissal of an accusatory instrument at the trial level. The test is well established and there is abundant case law explaining when a trial court should and should not grant a motion to dismiss in the interest of justice.
There is another mention of the term in the CPL: Intermediate appellate courts (Appellate Division, Appellate Term, County Court)—but not the Court of Appeals except in death penalty cases—can reverse or modify a judgment in the interest of justice. This allows the courts to reverse or modify for unpreserved questions and to reduce a sentence that is lawful but excessive. Unfortunately, there is little guidance for courts to determine whether to exercise this discretion.
In a recent article, I explored the interplay of preservation and "interest of justice" jurisdiction. I compare the federal and state standards and offer a test for courts to apply. The article can be downloaded from my SSRN page. (LC)
09:46 AM in Appellate Procedure, Commentaries | Permalink | TrackBack (0)