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IS 100 Fall 2020: Homework Assignment 3 on
Fallacies and Judging Arguments- Chapter 5 Faulty

Reasoning
Thinking Critically: Should DUI Homicide Be
Prosecuted as Murder? (60 Minutes)
A prosecuting attorney in New York is bringing charges of murder against
individuals who have killed other people while driving under the influence.
The attorney argues that everyone understands that driving while under the
influence poses risks for the driver and for other people, including the risk of
a fatal accident. The statutes provide for charges of ‘depraved indifference’
when one’s behavior results in the unintended but foreseeable death of
another human being.

Defense attorneys argue, among other things, that the laws pertaining to
murder were never intended to be applied in this way. The debate was
captured by CBS’s 60 Minutes in a segment that aired on August 2, 2009.
Review the 60 Minute Segment.

Assignment: Create a list of Fallacies you encountered while viewing the 60
Minute segment and reading “When Murder loses it Meaning”. You will need
Fallacies for both sides of the argument. Explain each fallacy, and how it
pertains to the video. Please address them as follows:

1. DUI Homicide should be Prosecuted as Murder – List Fallacies Found
by name, and describe

2. DUI Homicide Should not be Prosecuted as Murder – List Fallacies
Found by name, and describe

3. Which Argument had the least Fallacies?
4. After completing your evaluation, using the Critical Thinking skills

learned so far in evaluating Claims, what is your opinion on the
Prosecutor Claims below. Do not allow your emotions to dictate your
evaluation. Do not allow the fact that he had no intentions to kill,
change your thinking. Evaluate strictly by the law. If you were
presented with this case and had to decide if he can be prosecuted for
Murder, do you believe “Depraved Indifference” applies in this specific
case? Has your opinion changed, since the first viewing of this video
during class? Has your first reaction changed after looking at
additional facts? Example: Limo’s do not have seatbelts, could the
Limo be a contributing factor to the little girl’s death. Was the Limo
speeding? Are there any other factors that are not being considered?
As a Judge, how would you have ruled to the charge?

• Everyone understands that driving while under the influence poses
risks for the driver and for other people, including the risk of a fatal
accident. The statutes provide for charges of ‘depraved
indifference’ when one’s behavior results in the unintended but
foreseeable death of another human being.

IS 100 Fall 2020: Homework Assignment 3 on Fallacies and
Judging Arguments- Chapter 5 Faulty Reasoning

Background information:
To Convict a person of 2nd degree:
The basis for the second-degree murder charge was the “depraved
indifference” theory:
Penal Law Section 125.25(2) states that a person is guilty of
depraved indifference murder, when ‘under circumstances evincing a
depraved indifference to human life, he recklessly engages in conduct
which creates a grave risk of death to another person, and
thereby causes the death of another person.’

For many years, this language confused almost everyone and led to
prosecutors commonly charging murders as both intentional and depraved
indifference, under the theory that if it wasn’t the first, it had to be the
second, hoping that if they threw both at the wall, something would stick.
This changed with the Court of Appeals decision in People v. Payne, where
the Court held that depraved indifference referred to the defendant’s state of
mind, not to an external view of how horrible his conduct was.

The defendant must have known and appreciated the potentially fatal
consequences of his action and made the active decision to engage in the
conduct nonetheless.

Click on: https://www.youtube.com/watch?v=vuac5zZ1gqk

Go to Youtube
And search for 60 minutes DWR is it Murder

The suggested approach, use your internet search skills to find out more on
this topic and the law’s intent.

Article on Next Page.

http://www.law.cornell.edu/nyctap/I04_0125.htm

IS 100 Fall 2020: Homework Assignment 3 on Fallacies
and Judging Arguments- Chapter 5 Faulty Reasoning

When Murder Loses its Meaning

First, it was Robert Heidgen. Now, Franklin McPherson, who was sentenced to
25 years to life in prison upon his Nassau County conviction for murder. That’s
the maximum sentence, which was imposed yesterday by Judge George Peck.
A jury convicted McPherson, 21, of Deer Park, of second-degree murder in June
for killing Leslie Burgess, 44, of Amityville.

McPherson drove his Lexus 5 miles in the wrong direction and killed Burgess
when he crashed into his eastbound Jeep last October. He broke his legs in the
crash.
It’s not to say that McPherson was an innocent man. He was not. It’s not to say
that McPherson’s conduct was excusable. It was not.

But Franklin McPherson did not commit murder. To say he did cheapens the
crime for the victims of real murders, and subjects it to the transitory whims of the
prosecutor. McPherson was drunk. According to his lawyer, Dennis Lemke, he
was far drunker than the .19 claimed by the prosecution. Dennis is a good trial
lawyer, but he’s not really a “law man,” as they say. Neither was Steve
LaMagna, Heidgen’s lawyer. It’s unclear whether a good “law man” would have
had any impact on the trial court. Most of the judges aren’t “law men” either.

The basis for the second-degree murder charge was the “depraved indifference”
theory:
Penal Law Section 125.25(2) states that a person is guilty of depraved
indifference murder, when ‘under circumstances evincing a depraved indifference
to human life, he recklessly engages in conduct which creates a grave risk of
death to another person, and thereby causes the death of another person.’
For many years, this language confused almost everyone in New York, and led
to prosecutors commonly charging murders as both intentional and depraved
indifference, under the theory that if it wasn’t the first, it had to be the second,
hoping that if they threw both at the wall, something would stick. This changed
with the Court of Appeals decision in People v. Payne, where the Court held that
depraved indifference referred to the defendant’s state of mind, not to an external
view of how horrible his conduct was.

The defendant must have known and appreciated the potentially fatal
consequences of his action and made the active decision to engage in the
conduct nonetheless.

The conduct engaged in by McPherson, as well as Heidgen, was drinking
alcohol. It was drinking to excess. And then driving a car in this drunken state.
But neither the Nassau County District Attorney Kathleen Rice, nor the assistant
who tried both the Heidgen and McPherson cases, Maureen McCormick, will say

http://blog.simplejustice.us/2007/03/01/murder-in-a-martini.aspx

http://www.newsday.com/news/local/nassau/ny-limurd0917%2C0%2C5148647.story

http://www.law.cornell.edu/nyctap/I04_0125.htm

IS 100 Fall 2020: Homework Assignment 3 on Fallacies
and Judging Arguments- Chapter 5 Faulty Reasoning

this.

Instead, the explanation goes like this:
After the McPherson verdict, Nassau District Attorney Kathleen Rice said he, like
Heidgen, acted in a way that showed he was guilty of depraved-indifference
murder, meaning he acted recklessly, knew the risks of his actions and ignored
them.

“This defendant’s preventable actions led to this inevitable tragedy,” Rice said.
Who, amongst the public, would disagree with Rice? But that doesn’t make this
a murder. And notice how nobody mentions that it’s not like McPherson walks
free if he’s not charged with murder. There’s always a 10 year sentence for
manslaughter available. Or criminally negligent homicide, though that
crime doesn’t have that cool, violent ring to it, and “reckless” isn’t as nasty as
“depraved”.

Depraved is perhaps one of the smartest words a legislator every approved. It
immediately evokes an image of Freddy Kruger, evil personified. What good is a
crime if it doesn’t evoke an image of evil? That’s why misprision of felony is so
rarely charged. No visceral reaction. No mental image. It’s boring.

McCormick’s explanation doesn’t add much to the public’s understanding either:
Maureen McCormick, the prosecutor who won both convictions, said, “The
Heidgen case was not a fluke or a political stunt, and it was not because it was
an adorable little girl who was killed.” She was referring to 7-year-old Katie Flynn,
a victim in that crash. “The facts are what made these cases murder.”
As has become so very popular, an appeal to emotion is hidden behind vague
things that seem to make sense, provided one doesn’t let things like the law get
in the way. This has long been the push by advocacy groups such as MADD to
create a growing public intolerance for drunk driving, and create the impression
that ever-increasingly harsh charges and punishments are the only way to stop
this plague.

The problem is that these groups have been so successful, and politicians have
basked in the reflected glow of this success, that when reality gets in the way of
these PR campaigns (meaning when convictions for murder do nothing to stem
the tide of drunk driving), they need to find yet a deeper, harsher, more horrific
penalty to impose. Yeah, if only they got the death penalty, that would fix the
problem!

The reason why they are slaying imaginary dragons is that this is not the crime of
murder. It never was, and never will be. Drinking too much and getting drunk is
not something that one contemplates as part of a violent crime. Driving home
drunk, every stinking drunk, isn’t meant to cause harm. It’s meant to get home.

http://72.14.205.104/topic/politics/kathleen-rice-PEPLT007448.topic

http://en.wikipedia.org/wiki/Misprision_of_felony

IS 100 Fall 2020: Homework Assignment 3 on Fallacies
and Judging Arguments- Chapter 5 Faulty Reasoning

There are no real similarities between shooting a gun into a crowd and driving
home drunk. The former serves no purpose other than to cause harm. There is
no harmful purpose in the latter. The former has a high likelihood of killing
someone. The latter could well kill someone but has only a minute probability of
occurrence. The former is murder. The latter is not.

The forces against drunk driving are empowered by these convictions and the
public appreciation of what a wonderful job they are doing to protect their children
from death at the hands of these vicious drunks. I’m no apologist for drunk
driving. I think it’s an incredibly wrong thing to do. But I’m also no fan of
overcharging, of taking a lesser crime and making it greater to curry ignorant
public favor.

No doubt Dennis Lemke will be filing a notice of appeal shortly, and I hope that
the lawyer assigned to do the appeal will do an exceptional job. The appeal in
Heidgen is still pending. As of now, there’s nothing to suggest that an appellant’s
brief has been filed with the Second Department. In all likelihood, this issue
won’t be resolved until it reaches the Court of Appeals.

There is absolutely no question that the convictions for murder must be
reversed. And this reversal will not be a slap in the face of society, or the
prosecution, or the Mothers against Whatever, but return to grounding
convictions in the law rather than the appeal to raw emotion.

Get drunk, turn onto the off-ramp instead of the on-ramp, and get convicted of
murder. Is this really what you want?

• IS 100 Fall 2019: Homework Assignment 3 on Fallacies and Judging Arguments- Chapter 5 Faulty Reasoning
• IS 100 Fall 2017: Homework Assignment 3 on Fallacies and Judging Arguments- Chapter 5 Faulty Reasoning