In the Anglo-American legal tradition, if the accused dies before a conviction becomes final, the conviction is vacated and the indictment is dismissed. This is called “abatement” of the conviction, and hopefully most of you have not encountered it. The idea is that the defendant will now face the Lord’s justice, not the King’s, and that the family should not have to live with the stigma of a conviction that was not final.
The defendant in US v. Mladen, 18-0616, died during the pendency of his appeal, but the Second Circuit decided that abatement was too generous a remedy for him. The opinion is by Judge Kearse, joined by Judges Walker and Livingston. Perhaps the problem was that, although convicted only of one count of 18 USC § 1001, he also admitted to making anonymous threats against a federal judge. Then, while in jail awaiting sentence in this case, he was recorded making additional threats against the judge. He received the maximum sentence of five years.
As part of his plea agreement, Mr. Mladen had waived his right to appeal the merits of the conviction (except for ineffective assistance of counsel), and he had raised only sentencing issues in his appellate brief. For those reasons, the Circuit declined to vacate his conviction. The Court posited a new rule for cases where the “merits” of the conviction have become “final and unappealable” even though the conviction is, in fact, still on appeal.
This decision ends an unbroken string of cases where the Second Circuit has vacated convictions still on appeal when the accused dies. The Court does not acknowledge departing from precedent because, for instance, in one of those past cases, the government did not oppose the motion for abatement, while here it did.
The Court did vacate Mr. Mladen’s $20,000 fine, while leaving intact the $100 special assessment. It also decided to vacate the prison sentence he cannot posthumously serve.