Tagged: evidence

NY Court of Appeals Issues a Ruling on Depraved Indifference Murder

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

Reviewing a case of egregious recklessness that caused the death of an innocent victim, a 5-2 majority of the Court of Appeals reversed a conviction for depraved indifference murder and cautioned that efforts to prosecute a defendant on this charge must “fit within the narrow category of cases wherein the facts evince a defendant’s utter disregard for human life.”

In April 2009, Jose Maldonado hot-wired and stole a minivan in the Greenpoint section of Brooklyn. In a determined effort to avoid capture by police pursuing him through streets in a mixed residential and commercial area, during a five-minute period Maldonado greatly exceeded the speed limit, drove through several red lights, repeatedly swerved into opposing traffic lanes, and repeatedly drove the wrong way on one-way streets. After one pedestrian narrowly managed to dive away to escape being struck by the van, which did not brake, Maldonado drove, again without braking, into another pedestrian, Violet Kryzak (aged 37), who was crossing Manhattan Avenue with the traffic light in her favor. The van’s windshield on the passenger side showed signs of impact with Ms. Kryzak’s body.

Maldonado said he thought he “hit the girl in the hand or something.” Apparently, it was not her hand that he smashed into because impact with the stolen van, which witnesses estimated to be going at least 70 mph, catapulted Ms. Kryzak’s body into the air, to land more than 160 feet from the point of collision. Without stopping to seek help for Kryzak (who died at the scene), Maldonado continued his effort to avoid capture, speeding north in a southbound lane with the van’s windshield caved in on the passenger side. Apparently realizing shortly afterwards that he could not escape with the van, he crashed it into a car, got out, and ran away. This last attempt to avoid capture was unavailing, thanks to civilians who grabbed him and held him for the police.

Among other charges, the prosecutor sought to convict Maldonado for second-degree murder, pursuant to N.Y. Penal Law § 125.25 (2), on the basis that Maldonado recklessly created a grave risk of death to another person and caused such death in circumstances that evinced his depraved indifference to human life [DIM]. A jury unanimously agreed, and the Appellate Division unanimously affirmed the conviction.  It held that the evidence was legally sufficient to support defendant’s conviction for depraved indifference murder and that, upon independent review, the conviction was not against the weight of the evidence.

Maldonado sought review by the Court of Appeals. Maldonado’s appellate counsel conceded that Maldonado’s conduct was reckless but argued that it did not meet the requirements for DIM established in the Court’s recent precedents.

On July 1, 2014, a majority of the Court agreed. Quoting one of its precedents, the Court stated that “a depraved and utterly indifferent actor is someone who does not care if another is injured or killed” by his reckless conduct. The Court held that “assuming the People proffered evidence indicating that defendant was aware of and disregarded the substantial risk of injury or death caused by his driving, they failed to submit evidence establishing that defendant did not care whether grievous harm resulted.”

Despite applying the applicable standard to review the record in the light most favorable to the prosecution, the Court found that “defendant sought to mitigate the consequences of his reckless driving” by at times swerving to avoid crashing into other vehicles. The Court credited defendant for such “conscious avoidance of risk,” which it stated was “the antithesis of a complete disregard for the safety of others.” The Court found that, despite the fatal collision with Violet Kryzak, the purpose of Maldonado’s extremely dangerous driving tactics was simply “to speed his flight and to avoid crashing into other vehicles or pedestrians.” According to the Court’s review, the record showed “no indication that [Maldonado’s] conduct … was motivated solely by his intent to evade capture, regardless of the risk to human life.” Therefore, the Court ordered that, given Maldonado’s “conscious avoidance of risk” during his concededly reckless driving in a desperate effort to avoid capture for his crimes, his killing of Violet Kryzak rendered him guilty only of second-degree manslaughter.

In a dissenting opinion joined by Judge Graffeo, Judge Pigott noted that after Maldonado narrowly avoided collision with one pedestrian and then struck and killed Ms. Kryzak, he did not cease his reckless conduct “when he had the opportunity to display that he cared whether or not he might strike a pedestrian.” Applying the required standard of review, Judge Pigott stated that there was “a valid line of reasoning and permissible inferences from which a rational jury” could find that defendant “simply did not care whether or not a pedestrian died,” thus demonstrating not just extreme recklessness but also “utter indifference to the value of human life.”

Sources:

New York Court of Appeals Issues a Divided Ruling on a Statutory Presumption of Unlawful Intent

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

In a June 26, 2014 decision, the New York Court of Appeals unanimously held that the evidence at trial supported Appellant Oliverio Galindo’s conviction for possession of a loaded firearm outside his home or place of business, pursuant to Penal Law § 265.03(3). But the Court was divided, 5-2, on whether his conviction pursuant to Penal Law § 265.03(1)(b) for possession of a loaded firearm with the intent to use it unlawfully against another person was in accordance with law.

Critical to this issue was Penal Law § 265.15(4), which states that “[t]he possession by any person of any … weapon … is presumptive evidence of intent to use the same unlawfully against another.” This presumption is permissive, not mandatory. But if the prosecution establishes the predicate fact (weapon possession), the presumed fact (unlawful intent) becomes part of the prosecution’s prima facie case, which the jury may rely on, with consideration of any rebuttal by the defense.

It was undisputed that on a public street Galindo shot his cousin in the leg. But the evidence regarding Galindo’s intent in regard to this shooting was much less clear. The defense did not present evidence, but argued that the statutory presumption of unlawful intent was rebutted through testimony presented by a prosecution witness who reported that Galindo told him that Galindo shot his cousin accidentally (i.e., not with unlawful intent).

Because Galindo challenged his intent-related conviction as insufficiently supported by the evidence (and not as violating due process), the Court reviewed the evidence in a light most favorable to the People. The majority interpreted the statutes as not requiring the People “to prove that defendant specifically intended to use the gun unlawfully against [his cousin] or any particular person.” The majority thus held that even if the evidence “may have suggested that defendant did not intend to use the gun unlawfully against [his cousin], it was not inconsistent with the inference that he intended to use the gun unlawfully against someone other than his cousin.” (emphasis in original). Therefore, the evidence relating to Galindo’s shooting of his cousin (whether unlawful or accidental) was essentially immaterial, except that it established the predicate fact of weapon possession, which then permitted the jury to presume Galindo’s intent to use the gun unlawfully against anyone, whether identified at trial or not.

Judge Pigott, in a dissenting opinion joined by Chief Judge Lippman, concluded that “[g]iven the lack of any evidence, direct or circumstantial, concerning defendant’s intent to use the weapon unlawfully against another, the jury could not have rationally concluded that the defendant’s mere possession of a loaded firearm established his intent to unlawfully use it against another.” (emphasis in original).

Responding to this, the majority said, “[b]ut that is exactly what the Legislature intended Penal Law § 265.15(4) to permit a jury to do: find that a defendant intended to use a weapon unlawfully merely because he or she possessed that weapon.” (emphasis added)

The Galindo majority did not fully address the constitutionality of Penal Law  § 265.15(4) because defendant did not raise this issue on appeal. Nevertheless, both the majority and dissent referenced County Court of Ulster County v. Allen, 442 U.S. 140 (1979), a habeas case in which a sharply divided Supreme Court upheld the constitutionality of another New York statutory presumption. In Allen, the element statutorily permitted to be presumed was possession of a firearm attributed to any and all persons based on the predicate fact that they were occupants of an automobile when a firearm was found in the vehicle.

The Allen majority held that the proper constitutional test requires consideration of whether the fact to be presumed is “more likely than not to flow from” the statutory predicate facts. The majority stated that this standard (lower than beyond a reasonable doubt) is appropriate for permissive presumptions “[a]s long as it is clear that the presumption is not the sole and sufficient basis for a finding of guilt.”

The four Allen dissenters found the statutory presumption unconstitutional and stated that “an individual’s mere presence in an automobile where there is a handgun does not even make it ‘more likely than not’ that the individual possesses the weapon.”

In Galindo, the fact permitted to be presumed was intent to use a weapon unlawfully. The Court of Appeals interpreted section 265.15(4) to support a finding of this mens rea element even in cases in which there was no evidence supporting a finding of intent other than the predicate fact of possession.

In light of the above, the Court of Appeals may need to address the constitutionality of Penal Law  § 265.15(4) in a future case.

References:

Caveat Chatter: Digital Communication and Mens Rea in United States v. Valle

POST WRITTEN BY: Jake B. Sher (’16), Pace Law School

JSher_valle imageIn a recent post, we discussed issues of mens rea as they related to internet search history. Digital communications, however, have also recently come under scrutiny. In the hands of an adroit prosecutor, they are equally as revealing and equally powerful evidence as an individual’s internet search history.  Yet, when the prosecution relies exclusively on online communications to prove a defendant’s mens rea beyond a reasonable doubt, a skilled defense team may be able to raise issues surrounding the actual context of the communications that may preclude a conviction.

In an opinion and order issued on June 30, 2014 Judge Paul Gardephe of the Southern District of New York conditionally granted former NYPD Officer Gilberto Valle’s motion for a new trial on his conviction for conspiracy to commit kidnapping. The prosecution relied heavily on a mountain’s worth of digital communications between Valle and his alleged co-conspirators. Unfortunately, none of the evidence against Valle had any corroboration outside of the electronic world, and Valle never finalized any of his alleged “plans.” As a result, Valle’s defense counsel contended that his online activities constituted morbid fantasy role-playing, not conspiracy. The government conceded that some of Valle’s communications were fantastical, but argued that some were manifestations of Valle’s specific intent to commit the alleged crime of kidnapping.

Judge Gardephe observed that “Valle’s depraved, misogynistic … fantasies about his wife, former college classmates, and acquaintances undoubtedly reflect a mind diseased.” United States v. Valle, No. 12 Cr. 847 (PGG), 2014 WL 2980256, 2014 U.S. Dist. LEXIS 89650 (S.D.N.Y. June 30, 2014). His observation notwithstanding, however, the judge granted Valle’s motion for a new trial. He did so based on the theory that the government neither demonstrated proof beyond a reasonable doubt that Valle’s chats reflected true criminal intent as opposed to fantasy role-play, and that the government’s evidence was insufficient to distinguish the real communications from the conceded fantasy communications. (emphasis added). In Valle, the Court wrote:

Valle’s visits to Internet sites devoted to death, violence, and kidnapping; his possession of images depicting acts of sexual violence against women; his computer searches regarding kidnapping methods; and his 89 computer folders containing Facebook images of women he knew, all graphically illustrate his depraved interests.  The Government did not, however, meet its burden … the Government offered no evidence that would have permitted a reasonable juror to determine whether someone who is truly interested in kidnapping a woman would be more likely to engage in these activities than someone who is merely interested in fantasizing about kidnapping and committing acts of sexual violence against women.

Even digital communications that may appear damningly unassailable require corroboration or further investigation. As Learned Hand once ruminated, “it does not follow, because a jury might have found [the defendant] guilty of the substantive offence, that they were justified in finding him guilty of a conspiracy to commit it.” United States v. Crimmins, 123 F.2d 271, 273 (2d Cir. 1941).

Proof of mens rea may require something more than digital evidence alone, even if a jury is convinced of a defendant’s guilt. As a result, the prosecution in Valle fell short of building their case for a conviction as a matter of law, a fact that Valle’s attorneys managed to exploit in floating an argument sufficient to warrant a re-trial.

Cases and Related Readings:

The Electronic Footprints of the Mind: Justin Ross Harris, Search History, and Mens Rea

POST WRITTEN BY: Jake B. Sher (’16), Pace Law School

ImageThe District Attorneys of the Information Age have a new tool at their disposal: the internet search histories of their defendants. Used correctly, this tool can grant unprecedented insight into an individual’s mental state regarding an alleged crime. The most recent debate on the issue involves Justin Ross Harris, whose high-profile case about his son’s death by exposure initially suggested a negligent mens rea at best. Investigators got a hold of the internet search history and cell phone data, finding evidence that Harris was communicating with several women while his son was still alive in the vehicle, and allegedly had looked at websites that advocated against having children. Harris’ acts have subjected him to murder charges.

The use of internet search history to secure a conviction is undoubtedly a powerful tool, and its use is nothing new. For instance, Melanie McGuire’s searches for “how to purchase guns?” and “how to commit murder;” Steven Zirko’s extensive search history, or Jared Lee Loughner’s “assassin” research.

Taken in context, internet searches can give important insights into the mind of the individual conducting the search. Taken out of context, however, a person’s internet search history may result in a wrongful conviction. The Eastern District of Wisconsin granted a prisoner’s habeas corpus petition, releasing him from a life sentence for his wife’s murder where his alleged internet search history for “ethelyne glycol poisoning” occurred on the morning of his wife’s death.  The District Court cast doubt on the reliability of the search history for purposes of determining intent, particularly in the context of letters and reports to police suggesting Mrs. Jensen’s concerns about his internet search history. The District Court determined that the admission of such evidence to the exclusion of evidence suggesting Mrs. Jensen was suicidal and had access to Mr. Jensen’s computer at the time that the internet search occurred constituted a violation of the defendant’s Sixth Amendment rights:

… viewed in isolation, the State’s computer evidence against Jensen was quite convincing. But that was not the only evidence the jury heard about the computer. The jury also heard Jensen’s statement to one of the investigators in which he denied any knowledge of the searches for poison and claimed that Julie also used the computer and accessed the internet, information that was confirmed by one of Julie’s friends … Jensen told the investigator that the computer was not password protected and that Julie entered information on a financial program called Quicken and was interested in medical information. … The defense pointed out evidence in the internet history of a search for “suicide” on November 10, 2008, which was also the first day on which the word ethylene glycol appears in the internet history.

Jensen v. Schwochert, No. 11-C-00803, 2013 WL 6708767, 2013 U.S. Dist. LEXIS 177420  (E.D. Wis. Dec. 18, 2013). (Court’s Official Copy)

Searches by individuals online create inadvertent communication between the searching individual and the corporation owning and operating the search engine. It is important to note that the evidence unearthed from internet data may provide just enough information to obfuscate the truth. As Orin S. Kerr stated with regards to digital evidence,

communications normally will not indicate who or what sent or received them, or the context in which they were sent or received.

While internet search histories are helpful tools for obtaining circumstantial evidence regarding the individual’s state of mind conducting the search, they are imperfect vehicles in that process; courts must balance their admission against the Constitutional Rights of the individual conducting the search. In our continued pursuit of the equitable administration of justice in the Internet Age, the words of Justice Cardozo remain resonant:

When the risk of confusion is so great as to upset the balance of advantage, the evidence goes out.

Shepard v. United States, 290 U.S. 96, 104 (1933).

Related Readings:

Cases:

Search of Closed Containers Incident to Arrest: Is a Cell Phone Just Another Container? by Thomas Kapp

The Pace Criminal Justice Center is honored to feature an article by Thomas Kapp,  Search of Closed Containers Incident to Arrest: Is a Cell Phone Just Another Container?  Thomas Kapp is the Senior Investigative Attorney at the Bronx County District Attorney’s Office and a member of the Pace Criminal Justice Center Advisory Board. In his article, he

review[s] the current federal standard for a search incident to arrest of containers and how some federal and other state courts have addressed the search of a cell phone.  In addition, [he] discusses the development of the law in New York of the right of police to conduct a search incident to arrest of a closed container and will also address whether that right includes the search of a cell phone incident to arrest, an issue which may be ripe for our courts.

As the article notes, this issue will be decided this term by the United States Supreme Court.  Mr. Kapp concludes his analysis by assessing the future of searches of cell phones incident to arrest in the State of New York.

Enjoy reading the full article: Thomas Kapp – Search of Closed Containers Incident to Arrest: Is a Cell Phone Just Another Container?