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Criminal Defense Lawyer’s Duties When Client Dies and Case Is Not Finished

Kish Law LLC

My criminal defense office is in Atlanta, but as a lawyer my clients are from various parts around the country.  Readers of this blog know that the majority of my clients face federal criminal charges.  One long-standing client recently died, it was very sad, he was in his late 50’s and is survived by his wife of three decades and seriously disabled child.  I was very troubled by this man’s case, for I felt he did not commit a crime.  However, the prosecutors threatened to go after his wife, leading this client to decide to plead guilty to protect his spouse.  The Judge imposed a 6-month sentence and ordered my client to pay a substantial “forfeiture”.  The client passed away recently, leading me to ponder the criminal defense lawyer’s duties when his or her client dies and some parts of a case are still unresolved.

For many years, I have known about a somewhat quirky rule which says that death can end a criminal case. The theory goes like this: if a criminal Defendant is convicted, that conviction is not “final” until his or her appeal rights are over.  If the Defendant dies while the case is on appeal, the courts are supposed to dismiss all the charges “ab initio,” which is fancy Latin for “from the beginning.”  The theory is that the case might have been reversed by the higher courts, and it is unfair to saddle the Defendant’s family with a conviction or monetary payment without the chance to take full advantage of appellate rights.  I’ve had this happen a few times, before, and have filed one of the strangest documents any lawyer gets to file: “Defendant’s Suggestion of Death.”  I simply do not understand why we always call it merely a “suggestion” of death, for the condition seems final enough to flat-out say  “my client died, dismiss his case.”  Anyway, I’ve had a couple of cases dismissed because of my client’s untimely death.

However, my client’s death recently got me thinking so I did some additional research.  Many of my readers know that at the sentencing hearing there are several different types of “punishment” that can be imposed in a federal criminal case.  Jail time is the most obvious, but a Judge can also impose supervised release (which comes after any imprisonment and can result in more time in custody if the person violates the conditions of release), a fine (money paid to the U.S. Treasury), restitution (which is paid back to “victims”, but the Defendant makes the payment to the Clerk’s office), and forfeiture (which is a legal theory saying that the property or proceeds from a crime belong to the government from the moment the crime happens and the Defendant needs to give them up).  I started pondering the impact of a Defendant’s death on all of  aspects of a sentence, including restitution, fines and forfeiture. Amazingly, the answers turn on when the Defendant dies, and where.

If a Defendant dies while his or her case is on “direct appeal”, then the charges are dismissed.  However, it is not a “direct appeal” if the person is asking for the Supreme Court to hear the case, so death when the case is up there seemingly does the descendants no good.  Without being too morbid, this rule says it is better to die when your case is in the court of appeals and not when it is with the Supreme Court.

But what about fines or restitution?  The answer turns on where the Defendant was convicted.  Some federal courts of appeal (including the Eleventh Circuit where I  mostly practice) say that because the Defendant’s death makes the conviction void “ab initio”,   there never was a conviction to begin with and the dead person’s estate and relatives are not obligated to pay fines or restitution.  However, it also turns out the rule is different depending on when the payment is made.  One case in this Circuit says that if the Defendant paid some money toward a fine or restitution before he died, then his estate does not get that money back. But when it comes to unpaid fines or restitution after the Defendant’s death, the Eleventh Circuit and similar courts say that the restitution obligation does not stand without a conviction.  These courts say if the victims want their money back they can always sue the dead person’s estate.  A different group of federal appellate courts have the opposite rule.  These courts all agree with the “void ab initio” principle when the Defendant dies on direct appeal, but these courts say that restitution orders can still be enforced against the dead Defendant’s estate for payments after the Defendant dies.  These courts base their rulings on the argument that restitution is not “punishment” and the victims should not be forced to sue in order to get their money back.

I’ve written before about how after we represent someone for many months and years, criminal defense lawyers get close to and know their clients very well.  This makes it even more sad when the person dies while the case is still ongoing.  However, the attorney needs to be aware of his or her duties, and the need to protect the client and his or her family in these situations.

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