by Mike Schnitzel
Heidgen, 25, of Valley Stream, was convicted on Oct. 24 of two counts of second-degree murder in the deaths of Katie Flynn, 7, of Lido Beach, and limousine driver Stanley Rabinowitz, 59, of Farmingdale. Heidgen was driving the wrong way on the Meadowbrook Parkway in the early morning hours of July 2, 2005, when he slammed head-on into the limousine carrying Flynn and her family home from a wedding reception in Bayville.
"Legally there are some significant questions involved with this conviction," said J. Herbie DiFonzo, a professor of law at Hofstra University, who served as a federal prosecutor for four years in Washington D.C. "The worst problem of all [for the prosecution] is how the judge handled the sequestering of the jury."
After four days of deliberations, the jury passed Acting State Supreme Court Justice Alan Honorof a note saying they were deadlocked. In response, Honorof sequestered the jury for the remainder of deliberations.
DiFonzo said that the law restricts when a judge can sequester a jury. According to DiFonzo, a jury can be sequestered for two main reasons ‹ for their own protection, and if there is such a heightened publicity surrounding a particular case that jurors could not be objective during their deliberations.
"If he had sequestered the jurors at the beginning of their deliberations no one would have said anything," DiFonzo said. "This judge sequestered this jury not only in the middle of a trial, which is very unusual, but in a response to a note saying they were deadlocked."
He added that a judge needs to be careful not to give the appearance of coercing a jury, and called Honorof's action "over the top."
Matthew Brissenden, a Garden City defense attorney, agreed that the jury's sequestration could be a critical component of any appeal. "I would imagine that it's something an appelate court may take a look at," Brissenden said, "but Judge Honorof may have had a reason to do so."
DiFonzo also believed that the mishandling of blood evidence by state police would be a factor in any appeal. At the trial, Trooper Daniel O'Hare testified that he did not mark Heidgen's name on the vial he used to store his blood because he could not understand Heidgen. There were also questions about whether the tape on the vial was the correct color. Honorof allowed DNA testing which proved the blood in the vial was Heidgen's.
"The blood evidence was arguably mishandled twice by the prosecution and that's damaging to their case," DiFonzo said. "I believe that the judge's final resolution will be upheld, but it reflects bad on prosecutors and the lab."
Brissenden said one of the key strategies of any appeal should be to examine the depraved indifference aspect of the murder conviction. He said that a decision by the state appeals court in the case of The People v. Feingold narrowed the definition of depraved indifference. In that case, a depressed man named Larry Feingold tried to kill himself by turning up the gas on his oven after sealing off his apartment. A spark ignited the gas, causing an explosion which seriously damaged his apartment building.
Feingold survived the blast and was convicted of reckless endangerment ‹ which has the same burden of proof for depraved indifference as second-degree murder.
"Before the Feingold case depraved indifference was defined by recklessness combined with a very substantial risk of death," Brissenden said. "In the wake of Feingold, depraved indifference is now subjective to a mental state. Courts describe it as 'extreme unmitigated wickedness.' In the case of a DWI accident, while people usually agree that the drivers are reckless, it may be a stretch to describe that situation as 'unmitigated wickedness.'"
DiFonzo said that the prosecution's theory that Heidgen showed depraved indifference the night of the crash was questionable. "[Depraved indifference murder] is usually the kind of murder where someone acts without intending to kill but does something horrible with a conscious disregard that someone may well die as a result of their actions," DiFonzo said. "The fact that Mr. Heidgen had a .28 blood alcohol content makes it hard to see what kind of conscious disregard he could have had for anything."
Heidgen's defense lawyer Stephen LaMagna, of Garden City, plans to appeal the case. He said that while he was not surprised by the verdict, he does not believe it will hold up in court. "There was such a large amount of pre-trial publicity that it was hard for this jury to concentrate on the evidence in this case and how the law relates to depraved indifference murder," LaMagna said. "I am confident that once the appeal process concludes, the murder charge will be dismissed."
LaMagna added that he believes a second-degree murder charge is too subjective because it allows "one district attorney to charge murder for the same act another district attorney would not."
The second most serious charge which Heidgen faced ‹ second-degree manslaughter ‹ carries a maximum penalty of five to 15 years in prison.
"No one is talking about this guy going home," DiFonzo said. "He should be convicted of something, manslaughter in the least, maybe even second-degree murder. What we're talking about here is an appropriate legal process."
Doug Miller contributed to this story. Comments about this story? Mschnitzel@liherald.com or (516) 569-4000 ext. 265.
