Dead man appeals murder conviction, at taxpayer expense - East Valley Tribune: Nation / World

Dead man appeals murder conviction, at taxpayer expense

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Posted: Monday, October 3, 2011 12:15 pm

SEATTLE - 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 (Wash.) 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 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 -- Latin that loosely translates to "roll back a process to its beginning" -- convictions like Devlin's were automatically dismissed in Washington and most other states if the defendant died before sentencing or before exhausting all 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 Washington state's 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 having the state pay for the appeal, which he estimates could cost tens of thousands of dollars.

Lindsey has the support of the Washington Association of Prosecuting Attorneys, which wrote in an appellate court filing: "There is no constitutional right or statutory authority for the use of public funds to underwrite the estate's moot appeal."

Both sides have turned to the state Court of Appeals to settle the matter.

The Supreme Court recently found that if a defendant dies while the case is on appeal, another person can oversee issues regarding proposed restitution and the criminal conviction itself.

But it's not clear how the state should handle the cases of indigent defendants who die during appeal, said Link, Devlin's attorney. "The courts are going to have to hash out a procedure."

Lindsey, the deputy prosecutor, said the push to end the legal procedure in Washington came in part from victims-rights groups that wanted to ensure a criminal conviction wouldn't simply vanish. Another concern is restitution: Ending abatement ab initio makes it easier for the state and survivors to go after a deceased defendant's estate for money.

Seattle defense attorneys Suzanne Elliott and Travis Stearns said the Devlin case demonstrates that ending abatement ab initio will do nothing to guarantee that victims will receive restitution or be made to "feel whole again" by ensuring that a criminal is punished. Instead, they said, it will cost the state more money in court proceedings.

But whether a deceased convict's estate can move forward with an appeal at the public's expense is a unique issue for state courts. The state Court of Appeals is considering the issue.

Appellate judges in Spokane heard from each side this month. They're considering several issues, including whether another party can represent a deceased convict in an appeal. If so, will the state continue to pay for that appeal if the deceased person had been deemed indigent?

Devlin was on trial in May 2008 for assaulting Heily and killed the 52-year-old just before the victim was slated to testify against him. Prosecutors sought the death penalty, but a judge took the death sentence off the table after ruling that prosecutors had mismanaged the case, according to The Spokesman-Review newspaper.

A jury found Devlin guilty of aggravated first-degree murder. On Sept. 16, 2010, he was sentenced to life in prison without possibility of parole. Four days later, he was found dead in his jail cell. A death certificate revealed that Devlin ingested a fatal amount of antidepressants.

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