Clarity sought in state murder law

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A federal appeals court has asked New York's highest appellate court to clarify the state's muddled law on depraved indifference murder so it can then decide whether to free an East Hampton man convicted of stabbing another man to death almost 11 years ago.

Omar Gutierrez, now 34, was convicted in 2001 of stabbing John Villaplana in the heart after a drunken brawl outside Rick's Crabby Cowboy Cafe in Montauk. Prosecutors presented two legal theories of murder to the jury, which acquitted Gutierrez of intentional murder but convicted him of killing Villaplana with a depraved indifference to human life.

Several subsequent appellate cases -- including one that vacated Kenneth Payne's 2000 conviction for killing his neighbor in Shelter Island -- said that practice was improper. The Payne decision said almost all face-to-face killings were intentional murder.

Instead of reversing Gutierrez's conviction, the U.S. Second Circuit Court of Appeals, in a decision written by Judge Guido Calabresi, asked the state Court of Appeals to clarify the law and rule on whether it could be applied retroactively.

In doing so, the court made clear it was not eager to free a murderer simply because he was convicted under the wrong theory.

"We, as a federal court, are reluctant to release defendants whose defense to depraved indifference murder is that they were guilty [instead] of intentional murder," Calabresi wrote. "We will, of course, follow the law of New York. But before we order the release of such defendants, we wish to be sure that this is the result New York wants."

Assistant District Attorney Glenn Green said, "We have to wait and see what the New York Court of Appeals does."

Gutierrez's appellate attorney, Jacqueline Rubin, did not respond to requests for comment. But his trial attorney, Steven Wilutis of Miller Place, who also represented Payne, said he hoped Gutierrez is freed some day.

He argued at the trial that Gutierrez was tricked into making a false confession by a Spanish-speaking detective who he thought was his attorney.

Experts said juries had an even harder time than appellate courts deciding what depraved indifference murder is.

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