Special to Oswego County Today by Scott Fybush
ROCHESTER — Three years after Alan L. Jones was convicted of second-degree murder in the killing of his 11-year-old stepsister, an appeals court panel is considering a plea that could set Jones free.
Judges in the Fourth Appellate Division of the State Supreme Court, the state’s second-highest court, heard arguments in Rochester Tuesday morning from Oswego County district attorney Greg Oakes and Jones’ defense counsel, John Cirando of Syracuse.
“This is a particularly disturbing case,” noted Justice Eugene M. Fahey, who presided over the panel hearing the case. At Jones’ 2 ½-week trial in Oswego County Court in 2009, prosecutors presented evidence showing Jones had strangled Erin Maxwell in their town of Palermo home in 2008. Maxwell’s stepmother and father, Lynn and Lindsay Maxwell, had already been convicted of endangering the girl’s welfare by leaving her in a locked bedroom in a squalid home.
The Maxwells were released in 2011 after serving two-year sentences, and Lynn Maxwell looked on from the gallery during Tuesday’s hearing in Rochester, leaving quickly afterward without speaking to reporters.
While Jones’ defense team had raised other issues, including outbursts from the gallery during the trial and statements made by a juror after the verdict, this appeal hinges on one question: whether Jones intended to kill Maxwell, or whether prosecutors correctly determined that Maxwell’s death came as the result of depraved indifference, defined as “reckless conduct” that creates a risk of death. Justices closely questioned Oakes about the distinction between the terms.
“When the facts show the defendant intended to hang the victim, that was intent to harm and not to kill?,” asked Justice Erin Peradotto.
“I don’t know if he intended to harm her,” Oakes replied. “He was indifferent to her plight.”
“Depraved indifference murder is very rare in one-on-one conduct, and all involve brutal and prolonged conduct,” Judge Fahey noted as he asked Oakes to cite other cases supporting his claim.
“No matter how many ways you slice the case, it’s intentional conduct, not depraved indifference,” Cirando argued during his ten minutes before the court.
After the hearing, Oakes defended the charge of depraved indifference.
“This case fits squarely within established case law,” he says.
“We’ve maintained all along he didn’t intend to kill her,” Oakes said. “It may have been a game that went too far.”
Oakes says the intense questioning from the judges doesn’t necessarily indicate problems with the prosecution’s case.
“The judges like to play devil’s advocate,” he said. “It doesn’t mean they’re leaning against us.”
If the five-judge panel agrees with Cirando and reverses Jones’ conviction on the depraved-indifference charge, Cirando says double jeopardy will prevent prosecutors from attempting to retry Jones on a murder charge.
“The way the judge charged the jury required them to find that he did not commit intentional murder,” Cirando says. “What they alleged and what they proved was depraved indifference, which means the conviction should be reversed and he should be set free.”
Oakes acknowledges that double jeopardy would make it difficult to retry Jones on an intentional murder charge, but he says the appeals court could determine that Jones did not act with depraved indifference, but could reduce the conviction to second-degree manslaughter, reducing Jones’ sentence from 25 years to life down to five to 15 years.
The appellate court is scheduled to release its next set of rulings on September 28.