When Karen L. Fisher, 42, of East Hampton, N.Y. climbed into her minivan and ran down a 79-year-old priest, her blood alcohol level was 0.28 percent — three and a half times the legal limit.

Msgr. William Costello, 79, was killed instantly.

Fisher, who allegedly left the scene of the accident after killing Msgr. Costello, had a suspended license because of prior DWI offenses. She also had child endangerment charges pending against her, for allegedly driving while intoxicated with her children in the car.

Were her actions despicable? Absolutely. But should she have been charged with murder?

Suffolk County, N.Y., District Attorney Thomas J. Spota said no, and charged her with manslaughter, vehicular manslaughter, drunk driving, leaving the scene of an accident, and driving without a license.

Now consider Martin Heidgen, 25, of Valley Stream, N.Y. His blood alcohol was the same as Fisher's (0.28) when he got behind the wheel of his pickup, drove the wrong way down a highway, and plowed into a wedding limousine.

When the dust had settled, 7-year-old Katie Flynn had been decapitated, the chauffer killed, and several of the girl's relatives injured.

Heidgen, who had previously been arrested for drunk driving in Mississippi in 2001, was charged and convicted of murder.

While manslaughter charges are still much more common in drunk driving cases, murder prosecutions have been increasing in recent years. But that begs the question: With respect to drunk driving, what exactly is the difference between manslaughter and murder?

In New York, a person is guilty of manslaughter when he or she is "aware of and consciously disregards a substantial and unjustifiable risk" that results in someone's death. Manslaughter is punishable by up to 15 years in prison.

Murder, on the other hand, refers to someone who, with "depraved indifference to human life," engages in conduct that creates a grave risk of death that ultimately kills someone. The punishment for "depraved indifference" murder is 25 years to life in prison.

So how is it determined whether a person's actions rise to the level of "depraved indifference?" Legal experts across the country often ask the same question.

During the Heidgen trial, Assistant District Attorney Maureen McCormick twice played the jury a brief video clip, shot from a security camera inside the limousine that captured the fatal crash. In the silent courtroom, with the video frozen on the instant of impact, McCormick pointed to the screen and said, "That's depraved indifference murder. Convict him."

In contrast, Michael Cahill, a professor of criminal law at Brooklyn Law School said of Heidgen, "The fact that he was drunk, seems to evidence that he didn't have a depraved state of mind. It explains what he did in terms that suggest he wasn't making a conscious decision to play with human life."

In New York, as with many states, the concept of depraved indifference has been in flux for years, once prompting the U.S. District Court judge to declare the term "unconstitutionally vague." More recently, the New York State Court of Appeals (New York's highest court) has made efforts to clarify the definition.

For example, in People v. Suarez (2005), the court held that the defendant's acts in stabbing his victim in the throat, chest and abdomen did not constitute depraved indifference murder. The court stated that, "depraved indifference is best understood as an utter disregard for the value of human life — a willingness to act not because one intends harm, but because one simply doesn't care whether grievous harm results ..." The court then provided "quintessential examples" of depraved indifference murder, which included "placing a time bomb in a public place," and "poisoning a well from which people are accustomed to draw water."

The bottom line: depraved indifference murder is meant to be among the very worst of all crimes. But the question remains — should drunken driving incidents, that result in death be included in that category?

Jennifer Flynn, the mother of the little girl who was killed by Martin Heindgen, thinks so. "As I crawled out of the car, the only thing that was left of Katie was her head," said Mrs. Flynn two days after the crash. "And I took her, just like that, and sat on the side of the Meadowbrook and watched the horrendousness going on around me. I want everyone to know that."

On the other hand, Stephen LaMagna, Heidgen's lawyer stated, "As parents ... if one of our children goes out and drinks too much at a party and commits a similar tragedy, we know they must be punished. But we also know we didn't raise a murderer and that this child is not a murderer to be held to the same standard and punishment as someone who intentionally kills another in cold blood."

My take? As a parent, I love with two guiding principles: Guilt that I am not doing enough, and fear that my kids might somehow get hurt. Jennifer Flynn's worst fear was realized the day Martin Heidgen's drunken driving killed her daughter, and one way or another, he should never, ever be able to do that to a child (or a Mom) again.

On the other hand, as a lawyer, I ask myself: Does that mean he acted with the same depraved indifference of someone who sprays gunfire into a crowd or plants a bomb on an airplane? My heart is heavy, but my gut says no. Nevertheless, I would not let Heidgen off easy. Two counts of manslaughter, combined with the three counts of vehicular assault for the injured survivors, could still land Heidgen behind bars for 50 years.

Meanwhile, Heidgen's sentencing is expected following the resolution of a defense motion charging jury misconduct. If the verdict is ultimately upheld, prosecutors are expected to ask for the maximum of 25 years to life. Critics have already begun lining up to say the conviction will be overturned. Stay tuned.

Drunk Driving Sources


1) Karen Fisher Case

2) Martin Heidgen case

Deliberations Begin in LI's Drunk Driving Murder

Prosecutors press for murder verdict in car wreck that killed flower girl, chauffeur

When the dust had settled, 7-year-old Katie Flynn had been decapitated, the chauffer killed, and several of the girl's relatives injured.

Heidgen, who had previously been arrested for drunk driving in Mississippi in 2001

3) Manslaughter Charges Becoming More Common

4) "Depraved indifference" murder sentence is 25 years to life in prison

5) Legal experts across the country often ask the same question

6) "That's depraved indifference murder. Convict him..."

7) U.S. District Court Judge Charles Brieant declares term unconstitutionally vague

8) As with many states...

9) People v. Suarez (2005)

10) "Depraved indifference is best understood..."

11) "quintessential examples" of depraved indifference murder

12) "As I crawled out of the car..."

13) "As parents ... if one of our children goes out..."

14) Heidgen's sentencing is expected in the new year following the resolution of a defense motion charging jury misconduct.

15) Critics of the Heidgen Case:

Why the Heidgen Verdict Won't Stick

Politics in the Zeros