When Killing With a Car Is Murder: Q&A With Nassau ADA Maureen McCormick

Last month, the Court of Appeals — New York’s highest court — upheld the murder convictions of impaired drivers who killed people in three crashes in Nassau County and Staten Island.

Maureen McCormick argues before the Court of Appeals. Photo: ##http://www.timesunion.com/local/article/Too-drunk-to-murder-4877749.php#photo-5296130##Albany Times-Union##
Maureen McCormick argues before the Court of Appeals. Photo: ##http://www.timesunion.com/local/article/Too-drunk-to-murder-4877749.php#photo-5296130##Albany Times Union##

Martin Heidgen was driving in the wrong direction on the Meadowbrook Parkway when he slammed a pickup truck head-on into a limousine, killing driver Stanley Rabinowitz and 7-year-old Katie Flynn, whose family had just attended a wedding. Franklin McPherson drove against traffic on the Southern State Parkway before colliding with an SUV driven by Leslie Burgess, who was killed. Taliyah Taylor was high on Ecstasy and marijuana when she sped down Forest Avenue in Staten Island, striking pedestrian Larry Simon.

All three were convicted of murder, and all appealed their convictions on the grounds that they were too impaired to comprehend what they were doing. The court rejected that argument in a 5-2 decision, agreeing with prosecutors that the defendants exhibited a “depraved indifference to human life.”

“Although intoxicated driving cases that present circumstances evincing a depraved indifference to human life are likely to be few and far between,” wrote Chief Judge Jonathan Lippman, “we find that the evidence in each of these unusually egregious cases was legally sufficient to support the convictions.”

Said Nassau County District Attorney Kathleen Rice, whose record on drunk driving cases is recognized nationally: “There are times when this crime is murder, and we have to be willing to call it that when we know it will save lives. Hopefully this ruling will give other prosecutors the legal confidence to push for murder convictions for the worst of the worst drunk drivers.”

Nassau vehicular crimes chief Maureen McCormick prosecuted Heidgen and McPherson, and argued their cases before the Court of Appeals. Streetsblog asked McCormick via email about the significance of the court’s decision.

It appears the Heidgen, McPherson and Taylor rulings were combined, correct? If so, how did this come to be? 

The Court of Appeals combined the cases for argument and decision because they each dealt with impaired/intoxicated driving and the application of depraved indifference. The court did not have to reach the same conclusion for each case just because it combined them for argument. They could have distinguished the cases in the decision if they believed they should not all be upheld. In this case they were all upheld.

As a prosecutor, what elevates a DWI fatality case from manslaughter to murder? Do you expect to see more murder prosecutions against drunk drivers, rather than manslaughter? 

Depraved indifference cases are intended to be rare under the law. Note the language used to instruct the jury when it is considering a depraved indifference charge:

“Depraved indifference to human life” refers to a person’s state of mind in recklessly engaging in conduct which creates a grave risk of death. A person has a depraved indifference to human life when that person has an utter disregard for the value of human life — a willingness to act, not because he or she means to cause grievous harm [to the person who is killed], but because he or she simply does not care whether or not grievous harm will result. In other words, 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. Depraved indifference to human life reflects a wicked, evil or inhuman state of mind, as manifested by brutal, heinous and despicable acts. It is evinced by conduct that is wanton, deficient in a moral sense of concern, devoid of regard for the life or lives of others, and so blameworthy as to justify the same criminal liability that the law imposes on a person who intentionally kills.

“Evil, wicked, and wanton,” etc., is a tough standard to meet under any circumstance. In the case of drunk driving crimes, only the most egregious fact patterns will support a depraved murder charge. Generally continued, outrageously dangerous behavior — that would cause the average person to say to himself, “Someone’s going to die” — is the type of case that would support the charge.

In the Taliyah Taylor case the defendant made statements that indicated that she knew what she was doing when she drove maniacally and killed Larry Simon. In Heidgen and McPherson the court found that a reasonable jury could have concluded the defendants had depraved mindsets from the distance travelled by the wrong way drivers (while maintaining their lanes and their speeds), the multiple indications they were driving the wrong way and their failure to slow or respond.

The court’s decision may allow prosecutors who were otherwise hesitant to bring depraved charges (because the meaning of depraved was so unclear) to appropriately charge depraved when they have terribly egregious facts. Otherwise I do not expect to see more depraved murder cases versus manslaughter cases because the facts of most cases will not sustain this high threshold.

It is nonetheless essential that the depraved murder charge is available for those cases that warrant it. The decision provides that availability. We have seen many prosecutions for aggravated vehicular homicide (a class B felony) which mandates upstate prison time for terrible cases that fall short of the depraved murder standard. In 2007 DA Kathleen Rice proposed this law to fill the hole between second degree manslaughter and first degree vehicular manslaughter (class C felonies) and depraved indifference murder (a class A felony). The statute was not proposed because depraved indifference murder is inappropriate for any DWI homicide, as claimed by one of the dissents. I was part of the process of passing that legislation. Its purpose has repeatedly been misstated by those who wish to preclude DWI homicides from depraved indifference charges. Aggravated vehicular homicide should be classified as a violent felony offense but in all other respects it is working to fill the gap.

Drunk drivers charged with manslaughter often escape serious penalty in New York State (Robert Core, as one example). With this ruling, do you believe the court has given prosecutors more latitude to pursue manslaughter and homicide charges?

The case against Robert Core was tried and decided by a judge without a jury at the defendant’s request. (The decision to waive a jury is strictly up to the defendant.) The judge acquitted the defendant of the manslaughter charge. Therefore the penalty was limited to the misdemeanor DWI. The possibility always exists that a judge or jury could disagree with the charges and acquit regardless of what the charges were.

There are many manslaughter cases where convictions are obtained. The range of sentencing for those cases often seems inadequate, however. The judge can sentence a reckless manslaughter defendant to anything from no jail (for instance, probation) to five to 15 years in prison. Second degree manslaughter should also be designated a violent felony offense to elevate the minimum sentences. Judges have slowly increased manslaughter sentences during my 27 years as a prosecutor but it remains crucial that the community pays attention to the courts and to what their elected judges are doing.

Had the court ruled in favor of the defendants, how might that have affected prior convictions and future DWI prosecutions? Weren’t the defendants basically arguing that extreme impairment absolved them of responsibility for “depraved indifference to human life”?

Prior-conviction depraved murders were already being challenged after the court changed depraved indifference to a “subjective mental state” in 2006. A decision striking down depravity in these three cases may have been used to launch new challenges against vehicular cases. The defendants were arguing that since they were highly intoxicated or high on drugs, they were not in their right minds when they were driving so therefore they could not be willfully “evil, wicked, wanton,” or depraved. Basically their premise is that in order to be depraved you have to be sober. The toxicology testimony in both Heidgen and McPherson indicated that an intoxicated person does not lose free will and is not “blinded” by their alcohol use. The toxicologist indicated that alcohol reduces inhibitions and could actually embolden the drivers to drive maniacally. At the end of the day the court appropriately held that it was up to the jury to decide. This decision clarifies that being intoxicated or impaired by drugs neither automatically makes you depraved nor automatically excuses depravity.

Again, had the court overturned the convictions, might the chilling effect have extended to potential cases involving sober drivers in fatal crashes?

Unfortunately the case of People v. Prindle [PDF] has already had a “chilling effect” on sober driver depraved cases. If the court’s decision in Heidgen, McPherson, and Taylor also overturned their three cases, it would have effectively closed the door on any depraved murder prosecutions involving the operation of a vehicle.

Does this ruling have an impact beyond cases in which a motorist kills someone while under the influence? Could the court’s decision make it “easier,” for lack of a better word, to make cases against sober reckless drivers who kill?

Prindle was not overruled by these decisions so problems will continue in sober, egregious driving cases. This depraved ruling has the potential to be cited in any type of depraved indifference case, given that a case by case analysis of the facts has to be done and, essentially, a “totality of the circumstances” approach taken.

The court did not directly address the issue of whether intoxication can or should be allowed to be argued to mitigate depravity. (It can not be used to mitigate recklessness.) The court has implied that intoxication is one of the factors a jury can consider. But it is up to the jury.

  • Andres Dee

    Intoxication with a recreational substance (alcohol, self-administered Rx drugs) should not be a defense. Starting a vehicle in such a state should be a criminal act in and of itself.

  • Kevin Love

    What’s with the mental telepathy mind-reading? It is impossible to know someone’s “subjective mental state” without the aid of a Vulcan mind-meld. My supply of Vulcans is currently running rather low.

    Also, criminalizing a “subjective mental state” is rather disturbing. We will now be punished for what we think?

    This sort of thing makes a mockery and laughing-stock of any system of justice. The only thing we can ever have actual evidence about is someone’s behavior, not their “subjective mental state.” I don’t really care what is running through the mind of a violent, dangerous criminal. It is their dangerous, reckless, negligent behavior that should be criminalized and punished, not what they are thinking.

  • red_greenlight1

    I fail to see how the act of getting in a vehicle drunk isn’t evil or wicked.

  • Kevin Love

    I have also got serious problems with criminalizing people’s morality. This is the United States of America, not the Islamic Republic of Iran.

    There are plenty of people who believe that people with the “wrong” sexual orientation, religious beliefs, etc are “wicked, evil or inhuman… wanton, deficient in a moral sense… blameworthy” and so on.

    Quite frankly, I don’t care about anyone else’s morality or how evil, wicked wanton and blameworthy they are. The only thing that matters is if they engage in BEHAVIOR that poses a risk of death or serious injury to others. That is the only thing that should be criminalized and punished, not their morality.

  • MBDElf

    Kevin, sooner or later you’re going to run out of straw.

    MORALITY isn’t being tried in these cases; CONDUCT is. A person’s morality generally involves conduct that doesn’t affect others with whom they have to dealings. In other words, how they conduct themselves in pursuing their morality involves consensual partners (on whatever level). If a person’s morality condones child molestation, they ARE having that morality legislated, because children cannot consent, and RIGHTFULLY so.

    More directly, if your morality condones driving while under the influence of some mind-altering substance — which endangers other people without their knowledge OR consent — then you WILL be legislated.

    Living in a civilized society is a practice in and process of COMPROMISE; everyone must forgo something of their own wants and desires for the good of all, so that all CAN live together and enjoy the community’s benefits — which ORIGINALLY were safety from murder and pillage. “Safety in numbers” is so basic a tenet in the structure of a society that is not even mentioned most of the time. You may well wish to call what I’ve said “socialism”, but the alternative would be anarchy, not a free society. (BTW — the Founding Fathers called this country “a nation of laws”, for FAIRNESS to all, to AVOID the favoritism of being colonials to the Empire. So, ALSO spare me the talk of “this is a free country”; people who say that conveniently ignore the attendant RESPONSIBILITIES that go with every right mentioned in our history.)

  • fkg

    Getting in is fine. Nobody should get in trouble for sleeping one off in the car. Or at most, make them attend a seminar on alcoholism/couple hours of community service cleaning up a local park where this happened. It is a bit of a knock on the neighborhood to have drunks sleeping in cars. But it isn’t dangerous and shouldn’t be treated as a crime as it is in many juristictions. Attempting to drive is another matter entirely and should come with heavy penalties if BAC is higher than legal limit, or lower but there is a crash – assume it played a role.

  • Kevin Love

    Looks like you agree with me. Its not about the morality, it is about the conduct. Meaning that all the car drivers who behave in a way that poses a risk of death or injury to others are guilty of criminal negligence and need to spend a long time in prison.

    No possibility of the criminal getting off on some BS excuse that they didn’t have the wicked “state of mind” or the wrong morality. You endanger our lives, you go to jail.

    I don’t care what the criminal is thinking or what “state of mind” the criminal has. Criminals who endanger our lives go to jail.

    I don’t care about the criminal’s morality or how evil, wicked, wanton and blameworthy the criminal is. Criminals who endanger our lives go to jail.

    I do not want to ever see another criminal car driver kill with impunity and walk free because some killer-enabling judge thinks he has mental telepathy capabilities and declares the killer didn’t have the right “state of mind” to be convicted. That is complete garbage that makes a mockery of our system of justice.

    I do not want to ever see another criminal car driver kill with impunity and walk free because some killer-enabling judge thinks he is really a clergyman and declares the killer isn’t “evil, wicked, wanton and immoral” enough to be convicted. That is complete garbage that makes a mockery of our system of justice.

    This garbage has made our streets unsafe because car drivers know that they can and do drive recklessly and negligently and get away with it. Because if they kill someone what will usually happen to punish them is… nothing.

  • MBDElf

    I would have liked it a lot better if you had expressed these views earlier, instead of basically “devil’s-advocating” a strawman argument. These views, as you express here, as 100% congruent.

    As a cycling advocate, I’ve been aware for a long time of more successful strategies from our overseas friends; even without the ‘strict liability’ exercised in the Netherlands, there is a simple and correct belief — “I didn’t see the cyclist!” isn’t a DEFENSE, it’s an ADMISSION OF GUILT. The examples depicted in this article would fall under the same umbrella, even without involving a bike. So, negligence — and GROSS negligence or recklessness as shown in these examples — would be indefensible by simple statements of “I’m only human, I make mistakes!”, which actually mean, “leave me alone and let me be a selfish and careless slob!”

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