au1929 wrote:Not sure but I believe they use either or charge. From what I can gather those charged with depraved indifference can now confess that they intended to do the murder, hence the wrong charge, and get away Scott free.
No. That's not the way it works. The courts look at the evidence presented at trial to determine if the evidence was sufficient to sustain the conviction. In Payne's case, he was angry with his neighbor. Payne grabbed his rifle, walked over to his neighbor's house, argued with the man, and then shot the man point blank in the torso.
The prosecutor charged Payne with BOTH "intentional murder" and "depraved indifference murder." Because of the sloppy charging and the way the prosecutor presented the case, the jury could have found that Payne might not have INTENDED to kill the neighbor when he shot him point blank in the torso, but doing so demonstrated depraved indifference to life. This type of rationale is easy to follow, but it's wrong as a matter of law.
Prosecutors loved to charge BOTH murders because of the above demonstrated type of rationale. Sometimes it's very difficult to prove beyond a reasonable doubt that the defendant
specifically intended to kill the victim. Prosecutors were giving themselves and the jury an easy way around the specific intent element. However, by charging "depraved indifference murder" in cases of one on one killings, prosecutors were misusing the law.
In Payne's case, he was angry and drunk when he killed his neighbor. Intoxication can sometimes negate "specific intent" to kill. If the prosecutor had charged correctly, the prosecutor should have charged Payne with "intentional murder." If Payne raised the defense that he didn't intend to kill because he was angry and intoxicated when he pulled the trigger, then the Court could have instructed the jury on the "lesser included" offenses of reckless homicide (manslaughter) and negligent homicide.
If the jury could not determine beyond a reasonable doubt that Payne specifically intended to kill the neighbor, then it was a no-brainer that Payne was guilty of manslaughter. He would have been convicted of a charge that the evidence presented at trial would sustain throughout every step of the appellate process.
The problem is the jury acquitted Payne of intentional murder. No "lesser included" offenses to intentional murder were presented to jury for its consideration. The only charge that was left for the jury to consider was "depraved indifference" murder. Rather than let Payne walk free, they convicted him on a charge that didn't even apply to his case.
"Depraved indifference" murder is generally not applicable to one-on-one killings. It is applicable to situations when the actor doesn't intend to kill any particular victim, but his actions demonstrate a depraved indifference to life, e.g., shooting into a crowd of people, letting a dangerous man-eating lion loose into a crowd of people.
Due to the circumstances of Payne's case--the one-on-one killing--Payne was not guilty of "depraved indifference" murder as a matter of law. Because the jury acquitted Payne of intentional murder, the double jeopardy clause prevents the state from trying him again for intentional murder. That's why Payne gets to walk free--NOT BECAUSE HE CONFESSED to intentional murder--but because the evidence presented at trial cannot sustain the conviction as a matter of law and because the double jeopardy clause prevents the state from trying him again.
Prosecutors routinely charged a defendant with BOTH intentional murder and depraved indifference murder in order to double the chances of getting a murder conviction thus stacking the deck in the prosecution's favor. If the prosecution had charged correctly, Payne still might not have been convicted of intentional murder, but he would definitely be sitting in prison convicted of manslaughter.
If people like Payne are now getting their depraved indifference murder convictions overturned, state prosecutors have no one to blame but themselves and their own sloppy charging strategies.