Day 1: I-70 9

The Riverside Cemetery is filled with gravesites of the early pioneers of the Globeville and Elyria-Swansea neighborhoods Tuesday, Dec. 1, 2020, as the Denver skyline can be seen in the background. (The Gazette, Christian Murdock)

Under a 117-year-old judicial rule, if a defendant who is convicted dies while his appeal is pending, his conviction is wiped clean as if he  was never charged to begin with.

What if the judgment against him included paying restitution to the victims? Are they suddenly entitled to nothing?

On Monday, the Colorado Supreme Court considered whether to alter this practice, known legally as abatement ab initio, and whether a defendant's death, while his case is under appeal, should erase his financial obligation to victims at the same time it erases his conviction. For Deputy State Public Defender Chelsea E. Mowrer, the answer was clear: There can only be restitution if there is a conviction.

"We don’t have a conviction here. Restitution can’t be imposed," she told the justices.

The government countered that the world has changed since the Supreme Court adopted the doctrine in 1904, and erasing a conviction does not achieve modern notions of justice when restitution is also a factor.

A century ago, "the only purpose of the criminal justice system was to punish offenders, and no punishment was possible when the defendant died," said Assistant Attorney General Brittany L. Limes. "But since then, the system has recognized that other parties in society, particularly crime victims, have a genuine interest in the outcome of a criminal prosecution. And our criminal justice system should aim to provide restoration and healing to victims whenever possible."

Abatement ab initio drew public attention in 2017 after former New England Patriots player Aaron Hernandez killed himself in his prison cell. Hernandez was appealing his conviction for murdering Odin Lloyd, and as a result of the abatement doctrine the trial court judge in Massachusetts vacated Hernandez's conviction. The Supreme Judicial Court of Massachusetts, however, used Hernandez's case as an opportunity to abolish the doctrine, criticizing it as outdated.

Abatement was also the outcome following the 2005 death of former Enron CEO Kenneth Lay in Pitkin County. A federal judge denied a restitution claim from one of Lay's alleged victims, even after the company lost billions of dollars due to fraud.

In the matter before Colorado's highest court, a jury found Eddie Wayne Johnson guilty of securities fraud and theft after he was accused of stealing $150,000 from five investors in his trailer construction business. A Logan County judge sentenced Johnson to 48 years in prison and ordered him to pay approximately $220,000, nearly all of it in restitution to the victims.

While Johnson's appeal was pending, he died from cancer. In August 2020, a three-judge panel of the Court of Appeals ordered the lower court to toss both the convictions and the restitution order. The panel recognized the injustice to Johnson's victims, but "such outcomes are an inevitable consequence of the doctrine of abatement ab initio."

The panel in large part felt hemmed in by recent decisions of the state and U.S. supreme courts. In 2017, the nation's highest court ruled that Colorado had acted unconstitutionally by holding onto the restitution, costs and fees paid by two defendants whose convictions were reversed and who were never again found guilty. One year later, the Colorado Supreme Court clarified that judges may not order restitution for any charges of which a defendant is acquitted.

Prosecutors appealed the Court of Appeals panel's decision in Johnson's case to the Supreme Court, and Limes laid out the government's logic for why the six-figure restitution amount should still stand. The U.S. and state supreme courts had established that Colorado may not impose restitution for someone who has not been convicted of a crime. Because Johnson had a valid conviction on his record at the time of his death, she reasoned, he is not presumed to be innocent.

A straightforward fix, Limes added, would be to substitute Johnson's estate — meaning the assets he owned at death — for him and to continue the appeal. 

"Had the defendant survived, they would not be entitled to those funds anyway," she said of Johnson's surviving family. "They're simply not entitled to money that the defendant was not entitled to."

"In my experience, more often than not, in cases of fraud or theft, that money is usually gone," observed Justice Carlos A. Samour Jr. "The flip-side of the coin: Is it fair to require the family members of a deceased defendant to have to pay $220,000 because of something the defendant did?"

Mowrer, representing Johnson, noted that deaths during appeal where restitution was at stake did not occur often in her experience — although there was an increase during the COVID-19 pandemic. She pointed to the state law that upholds restitution orders until the amount is fully paid, except in certain circumstances involving the defendant's death. Because the law does not specifically mention death during appeal, Mowrer argued that lawmakers never intended to override the abatement ab initio rule in those rare circumstances.

Justice Monica M. Márquez alluded to Hernandez's suicide and wondered what might happen if the Supreme Court explicitly held that defendants who die during appeals are no longer liable to their victims.

"Do you think the rule you’re advocating for potentially creates some perverse incentives to a defendant to protect their family by making sure they don’t make it through the end of the direct appeal?" she asked Mowrer.

Limes agreed that allowing the restitution order to proceed against the defendant's estate was the fairest solution and would prevent victims from having to file a separate civil lawsuit for restitution years after the original case. She provided a list of 30 states that abandoned or modified their own abatement doctrines such that a defendant may no longer keep his "ill-gotten gains" in death.

"The only people that this doctrine harms is crime victims," she added.

The case is People v. Johnson.

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