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.

The Crime and the Confession

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.

'Depraved Indifference'

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.

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."