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September 29, 2011

"Dead man appeals his murder conviction"

The title of this post is the headline of this remarkable story from the Seattle Times.  Here are the details:

A convicted killer who committed suicide four days after he was sentenced to life in prison is appealing his case from the grave — at taxpayers' expense.

Christopher Harrison Devlin, a 57-year-old long-haul truck driver, was convicted a year ago of killing a man who had been set to testify against him in an assault trial, and was sentenced to life in prison. Devlin's attorneys immediately appealed his conviction. But on Sept. 20, 2010, Devlin was found dead of an overdose in his Spokane County Jail cell.

Despite his death, Devlin's attorneys and his sister, who had herself appointed trustee of his estate, are moving ahead with the appeal in hopes of clearing his name. They also insist the state should pay for it because Devlin was broke when he died. "She believed he was innocent and unless she continued his appeal, his innocence wouldn't be established," said Robert Lamp, a Spokane probate attorney who represents Leslee Devlin, of New York City. Leslee Devlin could not be reached for comment.

For nearly a century, under a common law known as abatement ab initio, convictions like Devlin's were automatically dismissed in Washington and most other states if the defendant died before sentencing or before exhausting all of his appeals. In 2006, for example, a federal judge in Texas tossed out former Enron chief Kenneth Lay's convictions for conspiracy, securities fraud and wire fraud because he died before sentencing.

But Gregory Link, an attorney for Devlin, contends that a recent decision by the state Supreme Court, which overruled abatement ab initio in a Seattle case, should clear the way for the appeal to move forward. And since Devlin's estate is insolvent, Link said, the appeal should be funded by the state.

On the other side is Mark Lindsey, senior deputy Spokane County prosecutor, who insists that Devlin's constitutional rights are not transferrable to another person after his death. "The right to appeal a criminal conviction is solely for an individual," said Lindsey. He also opposes efforts to have the state pay for the appeal, which he estimates could cost tens of thousands of dollars.

September 29, 2011 at 04:20 PM | Permalink


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Didn't someone just make a point about the need for the criminal justice system to save money?

Posted by: Bill Otis | Sep 29, 2011 5:38:09 PM

i think they should tell her to kiss off. unlike the enron thing he HAD been convicted and sentenced.....

Posted by: rodsmith | Sep 29, 2011 7:01:34 PM

We have an admitted problem in this country of not paying enough money to ensure competent, thorough representation of real live defendants, for whom an inaccurate trial decision will mean years and years wrongfully imprisoned. How could it possibly make sense to take some of the limited funding available for indigent defense, and spend it on a dead person who will not be able to benefit thereby.

Posted by: How does this make sense??? | Sep 29, 2011 8:13:49 PM

This sounds bizarre. Apart from reputational issues, I wonder -- notwithstanding the sister's and the lawyer's assertion that the defendant was broke when he died -- whether his sister is concerned that a conviction remaining on the books would also make it easy for the victim's family to pursue a civil claim against the defendant's estate. (It sounds like there are at least some assets in the estate -- perhaps a civil lawyer representing the estate would have an investigator scrutinize the assertion that there's really nothing in the defendant's estate.)

If the defendant were still alive, a murder conviction would mean a virtually automatic win for the victim's family in civil court because the defendant would have litigated and lost on all or virtually of the issues in the criminal case. My guess is that a deceased person's estate would be considered to be in the same situation as the deceased person would have been if he were still alive, for purposes of claim/issue preclusion, although I'm not sure of this.

Posted by: guest | Sep 29, 2011 10:28:20 PM

the problem here is he was ALREADY SENTENCED and in PRISON when he died! unles the one from the enron mess. who had been convicted but NOT YET sentenced when he died.

sorry she's out of luck! it should be tossed and her and HER LAWYER should be forced to pay of any of the courts time that has been wasted on this!

Posted by: rodsmith | Sep 30, 2011 12:09:04 PM

Maybe there was a reason for the doctrine of abatement ab initio after all.

Posted by: C | Sep 30, 2011 2:06:22 PM

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB ~ ANS.: Just Another Guy

Hello, all. As you can see, death of the defendant (here, Mrs. Margaret McIntyre) does not always moot a case or abort an appeal.

McIntyre v. Ohio Elections Comm'n (93-986), 514 U.S. 334
No. 93-986

on writ of certiorari to the supreme court of ohio
[April 19, 1995]

514 U.S. 334, 340-341 ~~ pdf pages

"Mrs. McIntyre passed away during the pendency of this litigation. Even though the amount in controversy is only $100, petitioner, as the executor of her estate, has pursued her claim in this Court. Our grant of certiorari, 510 U. S. 1108 (1994), reflects our agreement with his appraisal of the importance of the question presented."

Posted by: JAG | Oct 1, 2011 8:58:52 AM

What are the details of that Seattle case?

Posted by: Joe | Oct 1, 2011 1:27:25 PM

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In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB