When Alan Jones was put on trial in 2009 for the murder of Erin Maxwell, Judge Walter Hafner warned then-District Attorney Donald Dodd that he was pursuing a risky theory of the crime.

Dodd charged Jones with a count of murder with depraved indifference.  It means, quoting the New York State Court of Appeals’ ruling in “People v. Feingold, 2006″, that murder with depraved indifference for human life “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 or not”.

In a 2004 case, the justices wrote, “As the drafters of the Penal Law put it, depraved indifference murder is ‘extremely dangerous and fatal conduct performed without specific homicidal intent but with a depraved kind of wantonness’”.

Maxwell was strangled in her bedroom, police and prosecutors alleged.  Jones claimed he found her hanging in her bedroom.  He called 911.

The jury didn’t believe Jones and found him guilty of murder, but not before Hafner warned Dodd, with the jury out of the room, that Jones might be guilty of intentional murder but not of depraved indifference murder, under the rulings in place at the time.

The limits of the depraved indifference murder were tightened further earlier this year when the Court of Appeals ruled in People v. Bussey that a man who took part in the savage and fatal beating of another man was not guilty of depraved indifference murder.  The court said Bussey did not act like a man who didn’t care whether his victim lived or died.

The court reduced Bussey’s charge to manslaughter.

That case was the exact framework used by the Appellate Division in Jones’s case.

The justices wrote that the prosecution of Jones did not fit the two scenarios in which depraved indifference murder can be used in a one-on-one killing:

• Where the suspect abandons a victim in circumstances in which the victim is likely to die, or;
• Where a prolonged period of torture or beating results in death.

Jones “did not abandon the victim,” the justices ruled, saying that Jones “instead,…called 911 regarding the victim’s asphyxiation, administered CPR and was present at the scene when the authorities arrived.”  They ruled that there was no evidence of prolonged assault on Maxwell, saying that the evidence showed that her strangulation took no more than five minutes.

“Despite its ruling, the appellate court’s decision upholds and validates the jury’s finding that Alan Jones killed Erin Maxwell,” District Attorney Greg Oakes said at a news conference Friday. “Today’s decision does not cast any doubt on the fact that Alan Jones committed a wicked, horrendous and inexcusable act against a defenseless little girl.”

Oakes admits that “there were healthy discussions in the office” at the time over how to prosecute Jones.  Dodd made the final call, he said.  Dodd has since retired.

Oakes plans to appeal to the state Court of Appeals in time to delay the resentencing of Jones.  He also urged the state Legislature to refine the laws covering depraved indifference, noting that a 5 minute strangulation does not constitute depraved indifference to human life but an hour-long strangulation might.