Convicted Killers Set Free

Feb. 6, 2007 — -- It was a cool, spring night almost nine years ago on Shelter Island, N.Y. The quaint and sleepy island was peaceful and silent, but not for long. Ken Payne walked across his yard to his good friend Curtis Cook's cabin, and after Cook opened the door, Payne said an argument ensued. Payne eventually pointed a .12-gauge bolt action shotgun at Cook and pulled the trigger. Cook died, and Payne soon confessed to police.

But today, Payne is a free man, wandering the streets of Shelter Island.

Payne was released because he was convicted on the charge of depraved indifference murder, but that conviction was ultimately vacated. Payne isn't the only person who has been set free on these grounds . Because the case set a legal precedent, dozens of convicted killers are hoping to take advantage of the same ruling that set Payne free. Many have already succeeded and been released.

Payne and Cook had been friends for 18 years, but in March 1998, something happened that would dramatically change how Payne felt about his friend.

Cook was arrested for molesting an 8-year-old girl, and was soon released on bail. This worried Payne, who had a 15-month-old daughter at the time. Payne said that on April 27 of that year, Cook began threatening both his girlfriend and the baby. Payne was fed up. "I'm not the world's toughest guy," he said, "but I can protect myself, and I can protect my family, and I do have guns in the house."

Payne walked over to his friend's cabin with his shotgun in tow. "I took a magazine," Payne says, "flipped it in, locked and loaded, flipped the safety off, walked over to Curtis' house through my bushes."

According to Payne, they argued. Enraged, Payne fired his gun, killing his friend. Payne surrendered to police, gave a taped statement, and was brought to trial. The case seemed straightforward to prosecutors.

Prosecutor Chris Clayton charged Payne with intentional murder. But he also charged him with an additional second charge -- depraved indifference murder. This second charge claimed that Payne acted with extreme recklessness but did not intend to kill anyone.

It was common for prosecutors at the time to use depraved indifference as a secondary charge. Jurors often felt more comfortable with a depraved indifference charge in a case in which it was difficult to prove criminal intent.

Payne took the stand and convinced jurors he did not intend to murder his friend, and he was acquitted on the first charge of murder. But the second charge stuck, and he was convicted of depraved indifference murder. He was found guilty and sentenced to 25 years to life in prison.

As Payne began his prison sentence, the terms "depraved" and "indifference" haunted him. He felt strongly that those words did not apply to him or to the crime he'd committed, and so he hit the books, and began diligently studying at the prison law library. As he researched past cases, Payne began to believe that depraved indifference was the wrong charge for his case.