Thursday, November 12, 2020

U.S. v. Robertson (9th Cir. - Nov. 12, 2020)

This seems right.

Defendant gets convicted, but dies during the pendency of his petition for certiorari to the Supreme Court.  As a legal matter, that means his conviction is void ab initio.  Fair enough.  (Whether that's the right rule or not is a different matter; regardless, it's definitely the rule.)

But what about the order that said that Defendant had to repay the government for some of his public defender expenses since Defendant actually had more money than he said?

The Ninth Circuit examines a variety of controlling and non-controlling precedents and comes to what seems to me the right result.  Yes, the conviction, sentence, restitution order, and the like may need to be vacated since they all rely upon the existence of a valid conviction -- which (after his death) no longer exists.  But the order about paying the costs of his public defender doesn't require a conviction.  It applies even if the guy's found not guilty.  So it's ancillary, and those sorts of things aren't void.


Parenthetically, I thought it interesting how the Pacific Legal Foundation -- which represented Defendant in this case -- pitched it's alleged "win" in this litigation.  Check out the story it tells here.  It crafts a sympathetic story of an old man criminally charged with trying to protect his property from potential forest fires.  Okay.  I'm fine with that.  It's definitely a one-sided version of the facts, but that's what you would expect from an advocacy group.

After arguing the merits of Defendant's position, the PLF then notes that his conviction was affirmed by the Ninth Circuit, and then Defendant died.  All true.  But then the PLF says that it then stepped in and asked the Supreme Court to let Defendant's wife to "stand in his shoes to finish the effort to clear his name, overturn his unconstitutional conviction, and reverse the impoverishing fine."  As a result of these efforts, the PLF says, "the Supreme Court granted Joe's petition, vacated the Ninth Circuit's ruling, and ordered the Ninth Circuit confirm whether Joe's estate can still contest the fine," and then "on July 10, the Ninth Circuit vacated the conviction and fine, plus returned $1,250 in restitution."

That's definitely written to make the reader think that the PLF was successful on the merits.  There's zero mention of the fact that the only reason that the things got vacated was because Defendant died; that there was absolutely no determination that Defendant was right on any of his substantive claims or defenses.  That part's carefully omitted.  In a deceptive manner that I think crosses the line.  Even for advocates.

If I get convicted for income tax fraud, challenge the conviction on the grounds that income taxes are unconstitutional, lose, die while my certiorari petition is pending, and accordingly get my conviction and sentence vacated on mootness grounds (since I'm dead), it'd be fantastically uncool for my lawyer to write a version of this history that makes is sound like my lawyer convinced the appellate tribunals that the income tax laws were unconstitutional and hence vacated my conviction.  What the PLF does here is little different than that.

Hopefully they'll change it.