26 November 2012

Dead Defendant

I have the case of a dead defendant. There are currently two charges against him one of which is a felony. The prosecutor is indicating that he will dismiss the charges. I'm not sure but that we shouldn't rethink this. Why let a dead person get away with it? Isn't one of the purposes of punishment to scare the crap out of other people so they will not commit the same crime. Isn't the cost of defending oneself substantial. Defense counsel needs to be paid and there are various costs involved including the per diem for the jurors who must take time out of their ordinary affairs to hear the case. The state is just as likely to be reimbursed for court costs from a dead person's estate as from a live defendant. Death is simply too simple; the escape from due process and punishment should not be relief from the criminal justice system. Too much effort, time, and money has gone into the prosecution of a defendant to allow him to escape the consequences of the criminal charges by reason of death. His next of kin, his children and wife, all those near and dear, should be warned that death is not an escape; it is not the easy way out of one's troubles. The law is inexorable; it applies to the living and the dead. Criminal behavior must be punished if it need follow a person to the grave. Defense counsel should be ordered not to mention the defendant's death at trial before a jury; it is not the business of the jury to know the defendant is dead--it's not relevant and it could cause the jurors to believe that the court is wasting their time. Why try someone who is dead, they might ask. The court does not have the time to explain every little thing to a jury panel. The jurors are in court to determine the facts, not the punishment. In most circumstances the facts will be uncontroverted, the prosecution will not be required to rebut anything the defendant might say on his own behalf, and as far as the jury would know, the defendant simply decided not to show up for his own trial. They can bring in a verdict of guilty without having to look at him at counsel table when the verdict is read. All very nice and tidy. So, I say, we should think this through more thoroughly. Consider the benefits of trying dead people for crimes they committing while living. Sound reasons exist for continuing such prosecutions.