Policano v. Herbert’s Empirical Analysis

Citation profile

17 federal appellate · 10 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 68 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “defendant (1) recklessly engaged in conduct (2) which created a grave risk of death to another person (3) thereby causing the death of another person (4) under circumstances evincing a depraved indifference to human life. The mens rea of depraved indifference murder was recklessness and ... “under circumstances evincing a depraved indifference to human life” defined the factual setting, viewed objectively, in which the risk-creating conduct occurred.”

   3 later decisions quote this exact passage · from the concurrence
   e.g. Charriez v. Greiner · 302 F. App'x 17 - Maggiore v. United States

2. “[I]t has never been permissible in New York for a jury to convict a defendant of depraved indifference murder “where the evidence produced at trial indicated that if the defendant committed the homicide at all, he committed it with the conscious objective of killing the victim” (in the words of the first [and principal] question). As discussed at some length, however, under Register — and until we started to recast “under circumstances evincing a depraved indifference to human life” post-Sanchez — where both intentional and depraved indifference murder were charged in one-on-one shootings or knifings, these counts were submitted to the jury for it to sort out the defendant’s state of mind unless there was absolutely no evidence whatsoever that the defendant might have acted unintentionally. That a defendant’s acts virtually guaranteed the victim’s death did not, in and of itself, preclude a guilty verdict on a theory of depraved indifference. To the contrary and as the dissenters in both Register and Sanchez vociferously protested, under the Register formulation the very facts establishing a risk of death approaching certainty and thus presenting compelling circumstantial evidence of intent — for example, a point-blank shooting of the victim in the head — likewise demonstrated depraved indifference. This was the law of the State of New York at the time defendant’s conviction became final.”

   2 later decisions quote this exact passage · from the concurrence
   e.g. Policano v. Herbert · Fore v. Ercole

3. “[W]e must weigh three factors to determine whether a new precedent operates retroactively: the purpose to be served by the new standard; the extent of the reliance by law enforcement authorities on the old standard; and the effect on the administration of justice of a retroactive application of the new standard. The second and third factors are, however, only given substantial weight 'when the answer to the retroactivity question is not to be found in the purpose of the new rule itself.' " (citation omitted)). Bousley , 523 U.S. at 620 -21 , 118 S.Ct. 1604 . Id. at 620 , 118 S.Ct. 1604 . We do not reach the question whether there may be some exception to the general rule we adopt today. See, e.g. , Luurtsema , 12 A.3d at 832 (adopting a "general presumption in favor of full retroactivity for judicial decisions that narrow the scope of liability of a criminal statute,”

   2 later decisions quote this exact passage · from the concurrence
   e.g. State v. Robertson · 227 Cal. App. 4th 906 - In re Hansen