days—holed up in the library, reading cases that dated back hundreds of years. Those same classmates invariably had all the answers when called upon in class the next day, while Jaywalker hid out in the back row, avoiding eye contact with the professor. They got A’s on midterm and final exams, while Jaywalker struggled to get B’s and C’s. They passed the bar exam with flying colors, while Jaywalker squeaked by on the second try. And they landed jobs with the top firms or clerkships with prominent judges, while Jaywalker strapped on a gun and went to work for the DEA. Now, almost thirty years later, he had no idea what his former classmates were up to. He didn’t bother checking the “Class Notes” section of his alumni bulletin and hadn’t heard that any of them had become president or attorney general yet. He assumed they were all making tons of money and was pretty sure that none of them was currently riding out a three-year suspension from practice. But he seriously doubted that any of them had tried more criminal cases than he had, or won a larger share, or had more fun along the way.
Yet like it or not, Jaywalker knew the time had come to get down to some serious research. So he made himself a grilled-cheese sandwich, watched a few innings of a Yankee game and took a long walk by the river. Tomorrow, after all, was another day.
Chapter Five
Bad News Indeed
When a statute uses a term without defining it—as the penal law had done in the case of depraved indifference to human life—there’s a rule of statutory construction that says the words are to be given their ordinary, everyday meaning.
Which means you start with a dictionary.
So sometime around nine o’clock Sunday morning, Jay-walker did just that. Not for the human life part; thanks to the fact that neither the driver of the van nor any of the children occupants in it had been pregnant, those words turned out to be pretty unambiguous.
He looked up indifference first, figuring it would be the simpler of the two terms to pin down. And so it was.
in·dif·fer·ence, n. lack of interest or concern, apathy, insensibility, lack of feeling.
Not much help there.
de·praved, adj. Corrupt, wicked, or perverted—Syn. Evil, sinful, iniquitous, debased, reprobate, degenerate, dissolute, profligate, licentious, lascivious, lewd. See immoral.
Was Carter Drake any or all of those things? If you read the editorials in the Rockland County Register, or listened to the press releases issued by Mothers Against Drunk Driving, the answer was an unqualified yes. But none of the definitions seemed more than minimally helpful. Was Drake corrupt, wicked or perverted because his actions had led to the deaths of nine innocent people? Wasn’t that too facile, too much an after-the-fact analysis? Suppose for a moment that Drake had been equally drunk and momentarily had found himself on the wrong side of the road, but had managed to pull back over before encountering any other vehicles? Could his conduct nevertheless be said to have risen to the level of evil, sinful and debased? Would the state still want to empanel a jury of his peers and call upon them to decide whether or not he was immoral?
It took you full circle back to the same old quandary, the double standard that had little to do with the act of drunk driving and everything to do with the outcome. But for the presence of the van, Drake would be looking at a stiff fine; because of the presence of the van, he was a debased reprobate degenerate, staring at life in prison.
So much for the dictionary, with all of its ordinary, everyday meanings. On to the case law, just as Jaywalker had expected and feared, and procrastinated over since the day before in a futile attempt at avoidance.
Case law is a term used to describe the enormous body of opinions written by judges whose job it is to interpret laws—be they as lofty as constitutional amendments or as mundane as parking regulations—and determine if those laws have been adhered to or broken. The average trial generates no written opinions at all. It is only the unusually erudite trial judge, or the politically ambitious one, who bothers to commit his rulings to paper. Far more typical at the trial level is the one-word oral pronouncement: “overruled” or “sustained,” “granted” or “denied,” “guilty” or “not guilty.”
It is, for the most part, at the appellate level that the writing takes place. And it takes place only if there’s been a conviction after trial. If there’s been an acquittal, the prohibition against double jeopardy prevents the prosecution from appealing. What’s sauce for the goose isn’t always sauce for the gander.
The defendant who’s been found guilty below is permitted as a matter of right to appeal his conviction to a higher court, and from there to a succession of even higher courts, all the way up to—in the words of one of Jaywalker’s phrase-making jailhouse lawyers—“the Supremes,” if the judges of those courts deem the issue or issues involved sufficiently worthy of their attention. And at each step of the appeals process, those judges spell out the reasons behind their decisions in black and white. A single case can therefore generate dozens of written opinions, including separate concurrences and dissents, as it works its way up the appellate ladder, occasionally sidestepping from state court to federal court and back again. And just about every one of those opinions is collected, published and preserved for all eternity between the covers of some reporter, those standard-size, handsomely bound books that fill the shelves and form the backdrop of every photograph taken of a lawyer since the invention of the camera.
For the practitioner—or anyone else concerned enough or foolish enough to care—any one of those opinions can be found at a law library. All that’s needed is a citation, something that might be expressed as 6 NY3d 207, 211 (2005). Translate those hieroglyphics into English and you’d know to look for Volume Six of the New York Reporter, containing the decisions of the Court of Appeals, New York’s highest court, third series. You’d also know that while the opinion itself begins on page 207, the particular point you’re looking for is discussed four pages later, and that the case was decided in 2005.
With the advent of the computer, the task has been rendered even easier. Gone are the days when a trip to a distant law library was required, not to mention the sheer strength to lug fifty or sixty pounds of books to a reading table. All that’s needed now is that little coded citation, or the name of a case or the number of a statute, or even a particularly vexing phrase lifted verbatim from the language of that statute.
Depraved indifference to human life, for example.
So Jaywalker could be an armchair researcher right in his own apartment, allowing himself snacks, bathroom breaks and even an occasional check of a ball-game score whenever he liked.
It turned out that the phrase depraved indifference to human life was no newcomer to the language and hardly an invention of the legislators up in Albany. It had been around for centuries, in fact. One contributor to the Internet dated it as far back as 1762, tracing it to a court-martial judge’s condemnation of troops unnecessarily firing upon civilians, particularly women and children.
In 1965 it found its way into New York’s penal law as a means to extend the reach of maximum punishment to offenders who caused the deaths of others, but whose actions fell outside the scope of the previous murder statute, which required either an intent to kill or the commission of an underlying felony during which a death occurred.
An early example, from 1974, took up the case of a driver and passenger who picked up a severely intoxicated hitchhiker on a cold, snowy night. After robbing
