ALBANY -- The man who killed 7-year-old flower girl Katie Flynn by plowing into the limousine where she sat was too drunk to be aware that he was creating a grave risk of death to others, his appellate lawyer argued before the state Court of Appeals Tuesday.
As the seven judges listened, lawyers in three different cases sparred over the question of whether defendants who were extremely intoxicated knew the risks of their actions and disregarded them to the point that they should have been charged with murder.
Two of the cases are from Nassau County. Martin Heidgen, who killed Flynn, was also convicted of killing limo driver Stanley Rabinowitz, 59, while driving the wrong way on the Meadowbrook Parkway in July 2005. The other Nassau defendant was Franklin McPherson, convicted of killing Leslie Burgess while driving the wrong way on the Southern State Parkway in October 2007. The court also heard a similar Staten Island case.
The court's decision, expected next month, will affect pending cases as well, including two in Suffolk County. Michael Grasing is charged with murder when Brittany Walsh was killed while he was driving with a blood-alcohol content of .30 percent, according to police. And Thomas Herman faces the same charge, accused of killing Sam Longo while high on oxycodone, morphine, Xanax and PCP, officials said. The prosecutor in those cases, Laura Newcombe, listened to the arguments while sitting behind the Flynn family.
Several of the judges said the law requires more than mere drunkenness and a horrific outcome to justify a murder charge. Some asked whether Heidgen and others were so drunk they couldn't form the necessary state of mind -- being aware of and disregarding the grave risk of death they were causing others -- to sustain a depraved indifference murder charge.
"You've got to show he really didn't care," said Judge Robert Smith.
Nassau Assistant District Attorney Maureen McCormick said the evidence in the Nassau cases showed exactly that.
She rejected a suggestion by Heidgen's attorney, Jillian Harrington of Monroe Township, N.J., that Heidgen was so drunk he simply got lost and drove the wrong way.
"He didn't stop," McCormick said. "He didn't pull over. He didn't exhibit that he was lost or confused."
Smith asked a similar question about McPherson. "The issue is, have you proved the depravity?" he said. "How do you prove he did know what he was doing?"
McCormick replied the evidence of that was clear. Not only did he manage to stay on the winding Southern State for five miles, but he shot off a gun before he started driving.
"He was depraved before he got in the car," she said. "This is depravity at its core. For five miles he continued the wrong way. He simply wanted to do what he wanted to do, and other people had to get out of his way."
Flynn's father, Neil Flynn, said afterward that he was astonished the judges would even consider allowing extreme intoxication to negate a murder charge.
"That's evidence of depravity," he said of Heidgen's intoxication, shortly before he thanked McCormick for her efforts. "It's an act that has consequences. It's tragic that people could drive while intoxicated and that could actually insulate you from murder charges."
Murder vs. lesser charges
Defense attorney William Keahon, who represents both Grasing and Herman in the Suffolk cases, said it's clear that extreme intoxication would undermine a person's ability to form the state of mind necessary for depraved indifference murder.
He said if the legislature wanted such crimes to be murder, it would have made that the law. Otherwise, Keahon said, prosecutors have lesser crimes they can charge, such as aggravated vehicular homicide or manslaughter.
During the arguments, the judges said they were aware of how such crimes are perceived, particularly when the results are as horrific as in the Heidgen case. At that trial, Flynn's mother, Jennifer Flynn, testified about cradling her daughter's severed head at the crash scene.
"Society does not like this kind of stuff," Judge Eugene Pigott Jr. said.
But McPherson's appellate attorney, Jonathan Edelstein of Manhattan, told the judges that making policy is not their job.
"That's the purview of the legislature," he said.
DWI murder cases heard in the state's highest court
July 2, 2005: Martin Heidgen, 32, of Valley Stream is serving 18 years to life for killing 7-year-old Katie Flynn of Lido Beach and Stanley Rabinowitz, 59, of Farmingdale. Heidgen had more than three times the legal blood-alcohol level when he drove his pickup truck the wrong way on the Meadowbrook Parkway on July 2, 2005 and struck the limousine with Katie inside. The limousine was driven by Rabinowitz. Heidgen was convicted of second-degree murder.
Oct. 19, 2007: Franklin McPherson of Deer Park is serving 25 years to life in prison for killing Leslie Burgess, 44, of Amityville, on Oct. 19, 2007. McPherson, 21, was drunk when he drove his Lexus 5miles in wrong direction on the Southern State Parkway before he crashed into the eastbound Lexus driven by Burgess. McPherson was convicted of second-degree murder.
Oct. 18, 2006: Taliyah Taylor, 34, is serving 20 years to life for killing a pedestrian on Staten Island. She had take eecstasy, smoked marijuana and drank beer before speeding along Forest Avenue in Staten Island without headlights on Oct. 18, 2006. She ran a red light and killed Larry Simon, 41. Taylor was convicted of second-degree murder.