The Look of Depraved Heart Murder: Further Thoughts on the Faith-Healing Case

In light of some reasonable questions in the comments of my faith healing post at Mirror of Justice about the distinction between ordinary recklessness and extreme recklessness showing a wanton disregard for the value of human life of the kind that can support a mens rea of malice (and therefore, in Pennsylvania, a charge of third degree murder), I thought to mention a very recent decision of the New York Court of Appeals upholding the conviction of a defendant convicted of depraved indifference murder. An important caveat: New York has a special, but I think doctrinally useful, history of attempting to pinpoint precisely what the depraved indifference mens rea looks like that does not necessarily map on to Pennsylvania law. But because I believe that the distinction between ordinary recklessness and depraved heart recklessness can only really be understood by comparing the factual particulars in actual cases–and not by recourse to any abstract principle (for those with an interest, I’ve discussed this issue previously herehere, and here)–and because the facts of the case involve a victim of similar age, the New York case is useful.

In People v. J. Borboni (decided by the Court of Appeals two days ago), the facts showed that the defendant beat a 15 month old child repeatedly around the face and body in a period of about an hour, causing massive damage. The defendant was convicted of what in New York is murder in the second degree (depraved indifference murder of a child) as well as manslaughter in the first degree (intent to cause physical injury to a child; recklessly causing the death of a child). The defendant challenged the sufficiency of the evidence as to both crimes. The standard for conviction of depraved indifference murder is that the defendant evince “an utter disregard for the value of human life,” that the defendant “did not care whether his victim lived or died.” In addition to that distinct mens rea, the state also needed to prove recklessness as to a grave risk of physical injury or death.

In upholding the conviction for depraved indifference murder, the Court distinguished another case, People v. Lewie (2011), in which the defendant “persistently left her eight month-old son with her boyfriend, whom she knew to be violent and cruel, and the man inflicted numerous wounds on the child, finally causing a brain injury that led to his death,” because the evidence was not sufficient to show that the defendant “did not care at all” about her son’s safety: “On the contrary, the evidence shows that defendant feared the worst and…hoped for the best.” Similarly, the Court distinguished People v. Matos (2012), where the defendant’s “intimate partner severely beat her 23 month-old child, resulting in his death” because there was evidence that the defendant did care about her son’s life: she “splinted her son’s leg, gave him anti-inflammatory medication, exhibited other measures to comfort him, and, when she found him bleeding and unresponsive, called 911 for help.”

In Borboni, by contrast,

[T]he jury heard testimony — including medical and forensic proof — that defendant inflicted injuries on a 15-month-old child by striking or shaking the child so brutally as to cause four distinct skull fractures. The nature of defendant’s assault on the child rendered his course of conduct more clearly depraved than had he only suspected that a third party had injured the child. Knowing the brutal origin of the injuries and the force with which they were inflicted makes it much less likely that defendant was holding out hope, as Lewie and Matos perhaps were, that the child’s symptoms were merely signs of a trivial injury or illness….

[T]he charge of depraved indifference murder here is comprised of more than the physical assault on the child; it also encompasses defendant’s inaction for the two hours that elapsed between the injuries and death. In light of the child’s vulnerability and utter dependence on a caregiver, defendant’s post-assault failure to treat the child or report his obvious injuries must be considered in assessing whether depraved indifference was shown. The People demonstrated that defendant, at the very least, left the child unattended for two hours, either disregarding, or not bothering to look for, obvious, perceptible signs that the child was seriously injured. Given defendant’s knowledge of how the injuries were inflicted and his failure to seek immediate medical attention, either directly or via consultation with his girlfriend, until it was too late, there was sufficient evidence for a jury to conclude that defendant evinced a wanton and uncaring state of mind.

The key factual difference between a case like this one and the faith healing case that I discussed yesterday involves the issue of “indifference to human life.” I only know what is contained in the report I referenced yesterday, but from those facts, it seems to me that it is very difficult to conclude that parents who believe that God will intervene to save their afflicted child have the same mens rea as someone like the defendant in Borboni. To the contrary, the most plausible conclusion is that they have just the opposite state of mind: they care deeply about their child’s well-being and believe that what they are doing is in his or her best interest.

Furthermore, I included the paragraph in Borboni relating to Borboni’s failure to report the child’s injuries to anybody else because it contrasts with what is reported in the faith-healing parents’ case. The factual similarity (failure to report in both cases) may mask the issue of motivation. The actor with a depraved heart fails to report on the victim’s condition because he doesn’t give a damn about the victim. But the faith-healing parents allegedly failed to report because they do care about the child’s condition, and they thought that by reporting they would interfere with the child’s best chance at recovery.

I emphasize again that I am emphatically not saying that the faith-healing parents do not deserve punishment. And I haven’t done the research into Pennsylvania law about depraved heart murder to really know in depth what it requires. But particularly when one is dealing with as fact-specific–and as grave–a crime as depraved heart murder, I also think it’s important to try to be precise about the nature of the defendants’ state of mind. There are lots of facts still to come out in the Philadelphia case. But in light of what has already come out, there are obvious questions about the appropriateness of a depraved heart murder charge in that case.

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