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.