A divided Court of Appeals recently affirmed depraved indifference murder convictions in three cases involving automobile drivers who either were highly intoxicated or under the influence of drugs.1 I focus on two of the cases, People v. Heidgen and People v. McPherson. They illustrate the court’s ongoing struggle with the consequences of its controversial decision in 2006, People v. Feingold,2 to overrule its 1983 decision in People v. Register.3 The reader’s familiarity with Register, Feingold and the key decisions between Register and Feingold is assumed.

Mental State

In both Heidgen and McPherson the defendant was highly intoxicated, drove at night for miles on the wrong side of a highway at a speed well in excess of the limit, and collided head-on with another vehicle, killing the drivers of both vehicles and, in Heidgen, also killing a 7-year-old girl (and causing grievous injuries to members of her family). Chief Judge Jonathan Lippman, joined by Judges Victoria Graffeo, Eugene Pigott Jr., Jenny Rivera and Sheila Abdus-Salaam, wrote the opinion of the court; Judges Robert Smith and Susan Phillips Read dissented, with Read concurring in a separate opinion.

The central issue in Heidgen and McPherson was the legal sufficiency of the evidence to establish the requisite mental state under Feingold: “an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply doesn’t care.” (By contrast, under Register, the sole mens rea required was recklessness—i.e., being aware of and consciously disregarding a substantial and unjustifiable risk of death.)4 Under the settled standard of review, “[a] verdict is legally sufficient when, viewing the facts in a light most favorable to the People, there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt.” As the majority wrote (the dissenters did not dispute the point), “cases involving a depraved indifference to human life are highly fact-specific and dependent upon the individual defendant’s particular mental state—a factor that may be extremely difficult to establish.”

In Heidgen and McPherson, the majority marshaled an array of facts from which it reasoned that the evidence was legally sufficient. Its ultimate conclusion in Heidgen, equally applicable to its analysis in McPherson, was that:

Based on this evidence, the jury could have found that, despite defendant’s intoxication, he perceived his surroundings. The jury could have reasonably concluded that defendant drove, knowing that he was on the wrong side of the road and with an appreciation of the grave risks involved in that behavior. One who engages in what amounts to a high speed game of chicken, with complete disregard for the value of the lives that are endangered, is undoubtedly an individual whose culpability is the equivalent of intentional murder.

The majority twice stressed—and the dissenters did not dispute—that “[c]ircumstantial evidence can be used to establish the necessary mens rea.”

Before offering an explanation for the disagreement between the majority and the dissenters, despite their agreement on the nature of the mens rea requirement and the standard of review, one aspect of the evidence in McPherson and one aspect of the evidence in Heidgen should be identified.

Immediately before getting into his car, Franklin McPherson had been arguing with his girlfriend and fired several gunshots. From this evidence, both the majority and Judge Smith agreed that the jury reasonably could have concluded that McPherson had been enraged when he got into his car. And Martin Heidgen told the police that he had gotten into an argument with an ex-girlfriend, went into “self-destruct mode,” was “very upset and depressed” and had financial problems. The majority relied on this evidence; Judge Smith did not.

Roles of Judge and Jury

What explains the divergent conclusions reached by the majority and the dissenters? The answer lies in fundamental differences between two lines of Court of Appeals jurisprudence on the respective roles of juries and judges in determining the mens rea of a criminal defendant. Under the first, a venerable one, the jury’s role in this quintessentially fact-bound determination is preeminent. Under the second, one of more recent vintage, the judge’s role is far greater and, indeed, ascendant. The majority’s opinion is consonant with the first; Judge Smith’s opinion is consonant with the latter.

In People v. Flack,5 decided in 1891, Judge Charles Andrews wrote for a unanimous Court of Appeals and addressed the subject of the roles of juries and judges on the issue of criminal intent, one of the states of mind encompassed by the term “mens rea.” Sixty years later, Justice Robert Jackson for a unanimous Supreme Court in Morissette v. United States,6 quoted Judge Andrews’ “well stated”7 words at length. Andrews wrote, in reversing a conviction due to jury instructions that tended to resolve against the defendant the question of intent:

However clear the proof may be, or however incontrovertible may seem to the judge to be the inference of a criminal intention, the question of intent can never be ruled as a question of law, but always must be submitted to the jury. Jurors may be perverse; the ends of justice may be defeated by unrighteous verdicts, but so long as the functions of the judge and the jury are distinct, the one responding to the law, the other to the facts, neither can invade the province of the other without destroying the significance of trial by court and jury.8

Similarly, in Morissette, Jackson stated that “juries are not bound by what seems inescapable logic to judges.”9

And in People v. Moran,10 Judge Benjamin Cardozo made what the Court of Appeals described over 50 years later as the “definitive comment” 11 on the issue of intent:

Whenever intent becomes material, its quality or persistence—the deranging influence of fear or sudden impulse or feebleness of mind or will—is matter for the jury if such emotions could conceivably have affected the thought or purpose of the actor.12

Cardozo’s words, of course, are equally applicable to mens rea generally, and anger and depression—emotions at issue in McPherson and Heidgen—certainly are emotions that can “affect[] the thought or purpose of the actor.”

Judge Andrews gave one ground for the highly deferential nature of this approach to appellate review of jury determinations on mens rea. As he elegantly put it in People v. Cohen:13

The jurors saw the witnesses. The claims of the People and the defendant were presented to them with force and ability. …Better than a court which reviews but the printed record are they fitted to pass upon the guilt or innocence of the accused.14

But a deeper and transcendent ground exists for judicial deference to juries’ fact findings: the framers’ belief, embodied in a bulwark of our liberties, the Sixth Amendment right to a jury trial, that the power to find the facts should be entrusted to the good sense of ordinary citizens, despite the potential for “unrighteous verdicts.”

The majority’s opinion is of a piece with this jurisprudence emphasizing the primacy of the jury’s role in determining mens rea. Thus, it stresses the “highly fact-specific” nature of mens rea determinations, that mens rea is “extremely difficult to establish,” takes pains to identify the specific facts—the items of “circumstantial evidence [that] can be issued to establish the necessary mens rea”—and recognizes the significance of evidence bearing on the defendants’ emotions.

Judge Smith’s dissent in Heidgen, by contrast, evinces little or no deference to the “province of the jury” in mens rea determinations. At the outset, he notes that “[t]he majority says ‘intoxicated driving cases that present circumstances evincing a depraved indifference to human life are likely to be few and far between,’” and immediately goes on to suggest that the majority contradicts itself: “yet today it affirms all three of these convictions.” He notes that “[t]he majority decides that the jury could have found that Heidgen and McPherson ‘knew they were driving on the wrong side of the parkway and proceeded regardless.’” Although he “agree[s] that if that happened, these defendants could be found guilty of depraved indifference murder,” the next clause and sentence make clear what lies at the core of his dissent: “but I do not see how a rational jury could find beyond a reasonable doubt that it did. Anyone who knowingly drives the wrong way on a divided highway must either have chosen a bizarre way of committing suicide or else be prey to some grandiose illusion that all other cars will get out of his way.”15

In contrast to Justice Jackson, for Judge Smith, “inescapable logic” refutes the juries’ inference that the defendants knew that they were driving on the wrong side of the highway and proceeded regardless. In contrast to Judge Andrews, an inference contrary to the one drawn by the juries seems “incontrovertible” to Judge Smith. In contrast to Judge Cardozo, as we will see, for Judge Smith, the “deranging influence” of emotion is not a matter exclusively for the jury.

With an analytic scalpel, Smith dissects each of the competing inferences, and at least comes close to crossing the line that bars the Court of Appeals from weighing the evidence and determining which of the competing inferences is more reasonable.16 Thus, for example, Smith concludes that one of the competing inferences is the “simplest and likeliest inference” and that the evidence “supports more strongly” another of two competing inferences. And with respect to the evidence that McPherson was enraged, Smith concludes that “[i]t is much more likely that…he did not focus on his surroundings after he started driving.”

Smith’s dissent thus brings to mind a radically different line of jurisprudence that is exemplified by Judge Albert Rosenblatt’s opinion for a divided court in People v. Payne,17 one of the precursors to People v. Feingold. After consuming “large amounts of alcohol at a local bar,” Kenneth Payne became “infuriated” at the victim, Curtis Cook, because “Cook had been belligerent toward [Payne's] girlfriend and [Payne] had warned him never to communicate with her.”

After speaking with Cook over the telephone, Payne took out a loaded rifle, walked to Cook’s nearby house and, after the two men exchanged words, Payne shot Cook once at point-blank range. Cook died from the wound, which “was below the heart and just above the navel.” At trial, Payne testified and denied that he had intended to kill Cook. The jury acquitted Payne of intentional murder but convicted him of depraved indifference murder.

The court reversed the de-praved indifference murder conviction, holding that as a matter of law “the evidence established [Payne's] intent to kill.” Indeed, the court spoke of a “manifest intent to kill” in Payne’s “point-blank” shooting, suggesting that Payne’s state of mind was somehow an observable and objective phenomenon. The majority so held despite the jury verdict finding that the People had not proven Payne’s intent to kill beyond a reasonable doubt, despite Payne’s testimony that he did not intend to kill Cook and “fired his gun…almost instinctively, perhaps carelessly, and certainly not intentionally,” and despite a videotaped interview of Payne shortly after the shooting in which, when asked whether he intended to kill Cook, he responded that it was “a tough question” and he “really didn’t know.” A startling proposition is entailed by the majority’s holding: If the trial court had stricken Payne’s testimony about his state of mind, that blatant error would have been harmless.

In Payne, the majority prescinded from the totality of the facts. Rather, two particular (but interconnected) facts—i.e., the “point-blank” and “one-on-one” nature of the shooting—were regarded as virtually dispositive of the mens rea issue. The apotheosis of these facts apparently grounded the proclamatory character of the majority’s opinion. Thus, the majority sweepingly announced that “[t]he use of a weapon can never result in a depraved indifference murder when, as here, there is a manifest intent to kill.” Relatedly, and perhaps most sweepingly, the majority also announced that “if a defendant fatally shoots the intended victim once, it could be [intentional] murder, manslaughter in the first or second degree or criminal negligence (or self defense), but not depraved indifference murder.”

The majority also reasoned that “[f]iring more rounds or inflicting more wounds does not make the act more depravedly indifferent, but more intentional.” That logic is flawed, not inescapable, because it conflates two distinct concepts: (1) the commission of a “voluntary act,” i.e., an act “performed consciously,”18 and (2) the “conscious objective”—the statutory definition of the word “intent”—behind that act to cause a proscribed result.19

Payne is light years from the jurisprudence of Andrews, Cardozo and Jackson. To be clear, I do not contend that Judge Smith’s view of the respective roles of juries and judges on mens rea determinations is by any means identical to that of the majority in Payne. But Smith’s dissent has more in common with Payne on this critically important subject than it does with the jurisprudence of Andrews, Cardozo and Jackson, or with the majority’s opinion in Heidgen.

Concluding Thoughts

Regardless of whether Register or Feingold was correctly decided—I am firmly in the camp of those who believe Register was correctly decided and that, in any event, it should not have been overruled even if it were wrong—the Court of Appeals will continue to struggle with the consequence of Feingold. That struggle reflects the powerful pull of the deep wisdom in the jurisprudence of Andrews, Cardozo and Jackson. Its abiding aversion to judicial decision-making on mens rea issues does justice to: the ephemeral character, subjectivity and elusiveness of mens rea; the complexities of human interactions and the motives that shed light on the purposes, if any, of human conduct; and to the fundamental stature of the right to a jury trial.

Justice Oliver Wendell Holmes famously declared that “[t]he life of the law has not been logic, it has been experience.” In asserting the primacy of experience, Holmes certainly was not denigrating logic. But Holmes’ apothegm is apt here because it is consistent with Jackson’s insistence that “juries are not bound by what seems inescapable logic to judges,” and with the jurisprudence of Andrews, Cardozo and Jackson reposing confidence in the common-sense judgments of jurors informed by their experience in human affairs. That said, the importance of appellate review as a safeguard against the irrational inferences that juries sometimes draw cannot be understated.

In the end, when reviewing the legal sufficiency of the evidence to support an inference the jury may or must have drawn about mens rea, appellate judges strike the right balance only when they are certain (as Judge Smith, correct or not, doubtless was) that logic conclusively refutes the reasonableness of that inference. Finally, notwithstanding Judge Smith’s apparent suggestion to the contrary, however rare it now may be that a defendant properly can be found by a jury to have acted with the mens rea required for a depraved indifference murder conviction, it is not illogical to think that the Court of Appeals can be confronted at the same time with three cases in which juries properly found that the defendant acted with that mens rea.

James M. McGuire is a partner at Dechert and former associate justice of the Appellate Division, First Department.


1. People v. Heidgen, 2013 N.Y. LEXIS 3184 (Nov. 21, 2013).

2. 7 N.Y.3d 288 (2006).

3. 60 N.Y.2d 270 (1983).

4. Register, 60 N.Y.2d at 274. The remaining elements of the crime were purely objective ones; the People also were required to establish that the defendant’s act was “imminently dangerous and presented a very high risk of death to others, and that it was committed under circumstances which evidenced a wanton indifference to human life or a depravity of mind.” Id.

5. 125 N.Y. 324 (1891).

6. 342 U.S. 246 (1951).

7. Id. at 274.

8. Id. (quoting Flack, 125 N.Y. at 334 (emphasis added).

9. 342 U.S. at 276.

10. 246 N.Y. 100 (1927).

11. People v. Butler, 57 N.Y.2d 664 (1982), rev’g on dissenting opinion of Sandler, J.,

86 A.D.2d at 817.

12. Moran, 246 N.Y. at 103 (emphasis added).

13. 223 N.Y. 406 (1918).

14. Id. at 423.

15. Because Heidgen and McPherson could have been on unsuccessful suicide missions, the fact that neither died does not negate the first prong of Judge Smith’s dichotomy. Whether the dichotomy is false—whether Smith commits the fallacy of the excluded middle—is a question beyond the scope of this article. Two points, however, should be made. First, Smith excludes the majority’s middle position—that Heidgen and McPherson knew they were driving on the wrong side of a divided highway, knew their conduct created a grave risk of death to themselves and others, but just did not care—precisely because he concludes that it is contradicted by what he regards as the only reasonable inferences from the evidence. Second, the first prong of Smith’s dichotomy is hard to square with a recognition that emotions can have a “deranging influence…[on] the thought or purpose of the actor.”

16. People v. Delamota, 18 N.Y.3d 107, 115 (2011) (noting that the authority to weigh the evidence is “vested exclusively in the intermediate appellate court”); People v. Bleakley, 69 N.Y.2d 490, 495 (1987) (noting that weight of the evidence review includes the power to “weigh…the relative strength of competing inferences that may be drawn from the testimony”).

17. 3 N.Y.3d 266 (2004).

18. Penal Law §15.00(2).

19. Penal Law §15.05(1).