Convicted Killers Set Free

An Inappropriate Charge?

"Most of these depraved indifference murder cases that have been upheld are from people just randomly shooting into crowds," Payne said. His case, he believed, was very different. So he took on the legal world, arguing that he never should have been charged with depraved indifference in the first place.

New York's Court of Appeals agreed and vacated Payne's conviction. The court found that prosecutors misapplied the law and used an inappropriate charge. The court ruled that Payne's crime was not a case of reckless murder, and it was the prosecution's responsibility to prove intent, not secure a conviction on different grounds.

Since Payne had been acquitted of intentional murder and could not legally be charged again for the same crime, Payne was a free man. Clayton said, "I think we were following 20 years of jurisprudence that the Court of Appeals itself had handed down."

'Convicted Under the Wrong Theory'

Payne is not the only person who was set free in this manner. His case inspired other prisoners in New York convicted on the charge of depraved indifference to challenge the courts to re-examine their convictions too.

Prosecutors said Kerry Bartow dared a man to kill his wife so he could collect on her $300,000 life insurance policy. After Bartow's wife was murdered, Bartow told police about the dare, but said he never thought that his friend would actually do it. While Bartow was acquitted of intentional murder, it was the charge of depraved indifference that landed him behind bars. Like Payne, Bartow appealed and has now gone free.

Bartow's daughter Cheryl seemed as confused as anyone else. "He's a murderer. The lawyers know it, the judges know it," she said. "So why is he free?"

New York Law School professor Robert Blecker finds these prison releases troubling. "Bartow was convicted under the wrong theory," Blecker said. "Not because the jurors made a mistake, and not because the prosecutors made a mistake, but because the court invited them to do it.

"Coming to a neighborhood near you may well be an intentional killer released for one reason only, because he was convicted under the wrong theory."

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