Convicted killers are walking out of New York State prisons because of controversial rulings by judges who decided they were charged with the wrong type of murder, the New York Daily News reports. In one case, lawyers for chef David Policano, 47, admitted he was guilty of intentional murder, a second-degree murder rap. Then they argued he should be freed because he was convicted of a different type of second-degree murder, depraved indifference to human life. A federal appeals panel that upheld the appeal acknowledged that the decision was “disturbing,” because “the defendant is set free because he meant to kill his victim.” The Daily News found at least four other killers found guilty of “depraved-indifference” murder – a charge normally applied to crimes like shooting into a crowd – who have had convictions overturned.
Dozens more could be set free statewide as hundreds of appeals move through state and federal courts. The head of the New York State District Attorney’s Association said prosecutors must now choose between the two types of second-degree murder from the start of the case if they want convictions to stick. “Does it make it more difficult for us? Sure it does,” said association president Frank Clark. “If I had my druthers, I would rather see us having more bites at the apple, but we’re constrained by the law.” Fordham Law School Prof. Abraham Abramovsky expects public reaction to these reversals will range from confusion to outrage. He says prosecutors, not appeals judges, should bear the blame. “The court says: ‘You’re the prosecutor. You had all the evidence. Get it right, and if you can’t get it right, you’ll bear the consequences,’ ” he said.