People v. Russell
91 N.Y.2d 280, 693 N.E.2d 193 (1998)

  • Russell and two other guys were having a shoot out in the middle of the city. An innocent bystander was hit with a single bullet and died.
    • Ballistics tests could not determine which gun fired the fatal shot.
  • Russell and the other two guys were all arrested and charged with murder.
    • Even though only one person could have fired the fatal shot, all three were charged under the idea that all three had the mental culpability (aka mens rea) for the commission of the crime, and the two who didn’t fire the fatal shot had aided and abetted the shooter.
  • The Trial Court found all three defendants guilty of second-degree murder (aka depraved indifference). They appealed.
    • Remember, depraved indifference requires that the defendant recklessly engaged in conduct that created a grave risk of death to another person, and thereby caused the death of another person.
  • The Appellate Court upheld the conviction. They appealed.
  • The New York Supreme Court upheld the convictions.
    • The New York Supreme Court found that regardless of who fired the fatal bullet, the other two intentionally aided the shooter.
    • The defendants unsuccessfully argued that in order to be “aiding” they would have had to share a “community of purpose.” The Court found that they intentionally aided each other to engage in mutual combat.
      • Technically, they weren’t “aiding” each other, they were trying to kill each other.
    • The Court noted that in this case, the defendants were engaged in a dual, where they both arrived at the time and place ready to fight. On the other hand, if a person had been ambushed and was forced to fight back against their will, they would not be aiding and abetting their attackers.
  • Under Model Penal Code §2.06(4), you are criminally culpable if you are an accomplice in the conduct of the result. You do not have to intentionally help commit the crime, you just have to intentionally facilitate the conduct that lead to the crime.
    • This is similar to a drag race. If you challenge a person to a drag race, and they crash into a pedestrian, you are an accomplice to the crime, not because you helped them crash, but because you encouraged them to race you.