Coming soon to a "Law & Order" episode, probably, is this story involving New York law. David Policano, who was convicted some years ago of murder, was freed recently by the 2d Circuit Court of Appeals although Policano does not dispute that he killed the victim — in fact, his defense was that the killing was intentional.
Policano got into a fight with Terry Phillips in 1997, and Phillips evidently won, smashing Policano’s face with a metal pipe and sending him to the hospital. "I’ll take care of this" myself, Policano told police, despite the fact that police should generally be near the bottom of the list of people you tell you are planning a murder, and Policano did take care of it himself. Six days later he walked up to Phillips at a bus stop and shot him in the head. Result: conviction, 25-to-life.
But wait. New York law is evidently unsettled as to the practice of charging alternate and inconsistent theories, as prosecutors did in Policano’s case. That is, they charged him with intentionally shooting Phillips but also with shooting him "recklessly under circumstances evincing a depraved indifference to human life." Both are theories of second-degree murder under New York law and both carry the same penalty, but obviously they involve different intent standards. The jury convicted on "depraved indifference" but acquitted Policano of intentional murder. Now, I would think "I’ll take care of this" shows premeditation anyway (maybe they thought he meant his face). But surely these facts show deliberate intent and not just reckless behavior.
That’s what the 2d Circuit said. On a writ of habeas corpus, the court found that no rational juror could have concluded that the killing was only "reckless," and that charging him with recklessness in the first place via the use of inconsistent theories violated Policano’s due process rights. And since the jury acquitted Policano of the intentional killing, he walks, and double jeopardy prevents the State from trying him again for the murder.
The panel of course realized that it was a bit "disturbing" to set a defendant free "because he meant to kill his victim," but it felt it had no choice under the law. As the ABA Journal put it, "Had Policano accidentally shot Phillips while waving his gun wildly in the air, he likely would have remained a convicted murderer sitting in prison." But since the evidence showed the killing was deliberate and intentional, he is now a free man. "If someone fires eight shots at someone and yells, ‘Die, die, die,’" said a counsel to the DA’s office, "that’s pretty clear intent." So, yelling "Die, die, die" is more likely to get you off the hook than claiming it was an accident. Got it — I think.
Cases now pending before the state’s highest court may put an end to this problem, or not.