Saturday, October 3, 2009

Follow-up on John Couey

I have now done the research on whether John Evander Couey's appeal will continue past his death. As I mentioned, in Kansas appeals do continue. Kansas seems to be in the distinct minority in its approach to the appeals of deceased defendants. Wisconsin and Pennsylvania agree with us, but no one else appears to. (Interesting that the two states I have practiced criminal law in are on that short list.) In most other jurisdictions, the split is between abating (putting an end to) the appeal or abating the entire prosecution from the beginning (which vacates the conviction).

In the majority of federal jurisdictions, at least, the principle of abatement ab initio applies to nullify the conviction. The rule is premised on the idea that we can't allow a conviction to stand forever when the defendant was not in a position to contest the conviction through the appellate review process. If you followed the Ken Lay case at all, you encountered this rule when Mr. Lay died before he could appeal his conviction. As a result of Mr. Lay's death, he is in the eyes of the law an innocent man never convicted of anything.

As of 1997, at least, the majority of states also followed this rule. Alaska, Arizona, California, Colorado, Idaho, Iowa, Louisiana, Maine, Massachusetts, Missouri, Nebraska, New Mexico, New York, North Carolina, Oklahoma, Rhode Island, South Dakota, Tennessee, and Wyoming. This list was compiled in a South Dakota case from 1997. (That appellate court said the rule doesn't apply to defendants who plead guilty, but the state does apply the rule to defendants who were found guilty at trial.) I don't promise this list is exhaustive or entirely accurate 12 years later, though I can verify that I checked the Missouri case and it is still the law in Missouri.

Another chunk of states simply abate the appeal, meaning the appeal is dismissed but the conviction stands. Florida is in this category that isn't comfortable with vacating a conviction absent some showing of error. So in Florida, the defendant's attorneys do have the opportunity to ask that the appeal continue, but must show that there's a really big error in the case that would likely lead the appellate court to overturn the conviction. See State v. Clements, 668 So2d 980 (Fl 1996) (will abate the appeal unless good cause can be shown why the appeal should proceed).

I don't see a whole lot of practical difference between allowing the appeal to continue and allowing the appeal to continue if the defendant can show good cause. Either way, defense counsel gets to present the defendant's issues to the court. And either way, the court will judge the merits of those issues. The only real difference is in the form of the court's ruling. Basically, whether the appeal automatically continues or only continues if defense counsel can show good cause, defense counsel has to convince the appellate court that the conviction is so tainted by trial error that the conviction must be overturned.

So that is where John Evander Couey's direct appeal is now. A check of the docket this morning shows that nothing has been filed and no orders issued since his death.

Is this stuff interesting only to a criminal law geek?


Transplanted Lawyer said...

The question you raise has implications beyond criminal law. My first thought:

Considering Ken Lay, I don't see how proceeding with securing a posthumous conviction could make a lot of difference other than to civil lawyers looking to use the conviction as fodder for collateral estoppel in lawsuits against his estate. Whether his conviction is thrown out on procedural grounds would seem to be irrelevant to the question of whether collateral estoppel takes effect -- so, for instance, if a conviction were based on illegal evidence, the question in a subsequent civil suit would be whether that evidence could have been obtained through valid civil discovery. There is also the Constitution's prohibition against judicial acts that work corruption of blood to consider in that a civil suit against the estate of a wealthy but not yet convicted defendant could be requiring the heirs to answer for the deceased's crimes.

Did Couey have any money? If not, then whether he remains convicted or the charges are dismissed posthumously does not seem to matter very much to me, which leaves me at the maxim de minimis non curat lex, so I guess that means in most cases, the majority rule seems to be the right one.

Jeff Gamso said...

One of the capitally sentenced men I represented on direct appeal died of natural causes between the time I'd filed his cert petition with SCOTUS and the time the state's response was due.

Naturally, the state sought and obtained an extension of time to file its reply. They argued (not surprisingly) both that there was no reason to grant cert and that the case should be dismissed as moot.

The Court did, indeed, dismiss it as moot. As a consequence, there was no decision on the cert application.

S said...

I agree, TL. Once the guy is dead, I don't really see the benefit of holding on to the conviction. One case I read out of Florida involved a termination of parental rights. The court was considering whether the father's appeal of his TPR should continue after his death. As a lawyer might expect, the court analyzed the issue considering the best interests of the child. They did discuss the collateral consequences of allowing the termination to stand, most notably inheritance rights. In the end, they decided to remand to the district court for a full consideration of whether it was truly in the child's best interests to keep TPR judgment in place or not. The decision left me with the general impression that the appellate court thought there wasn't much reason to enforce the termination at that point.

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