Resurrection Redux: Crimes, Punishment, and Debt

Probate law is just one aspect of the law affected by death and resurrection. Criminal law and contract law are also implicated.

I. Resurrection and Criminal Law

The Enron scandal was one of the biggest financial scams in history, before the 2008 crash anyway. While there are certainly interesting issues to be discussed in the execution and ultimate unraveling of that scheme, the real supervillainy shows up right at the very end. Kenneth Lay was convicted of ten counts of conspiracy and fraud on May 25, 2006, but before he had been sentenced, he died. The official cause of death was listed as heart failure, and following well-established law (see, e.g., United States v. Schuster, 778 F.2d 1132, (5th Cir. 1985)), the judge vacated the conviction and the indictment. This meant that his estate got to keep all of the money he “earned” while at Enron, leaving the government and the people he defrauded entirely without remedy.

But what if he was somehow resurrected or reanimated after the judgment was finalized?

This blogger is unaware of any cases where a conviction had been vacated or abated by reason of the defendant’s death before his appeals were exhausted but was then reinstated when the defendant turned out not to have been dead. But given the seriousness with which courts tend to treat criminal convictions, it seems likely that a court would not hesitate to reinstate a conviction for a defendant who somehow stopped being dead.

There’s another potential wrinkle in here: what if someone is convicted for murder and then the victim comes back to life?

Actually, this one is could be pretty straightforward: if the victim was actually dead at some point, i.e. he really was dead, he wasn’t simply missing or presumed dead, then the elements of the crime are still complete. The defendant did, in fact, kill the victim. Whether or not the victim stays dead is not actually an element of any homicide offense. So it would seem that this is ultimately irrelevant, which is perhaps a little counter-intuitive but does have the benefit of simplifying things a lot. As courts tend to like rulings which alleviate the burden on their dockets, this is not an unlikely outcome.

If, on the other hand, the victim turns out to have merely been critically injured and then lost or hidden, as has happened too many times in comic book history to count, things do change somewhat. If the defendant has been sentenced to death, that sentence would probably be commuted, as the Supreme Court is pretty consistent about requiring a dead body before the death penalty can be invoked.  See, e.g., Coker v. Georgia, 433 U.S. 534 (1977). But it is unlikely that the conviction would be overturned entirely. A murder conviction includes all the elements of attempted murder, and a manslaughter conviction would probably include all the elements of aggravated assault. Whether or not a court would order a new trial probably depends on the facts of the crime and the reappearance.

II. Resurrection and contract law

In addition to vacating convictions, death also has an effect on contractual liabilities. If someone incurs a lot of debt and then dies, their creditors can go after the estate but will not actually be able to go after the decedent’s heirs. So what happens when a character dies, his estate is probated, and then comes back? The ins and outs of resurrection and probate have already been discussed, but here it is probably the case that the outcome is going to be pretty dependent upon the facts.

The sneakiest, most villainous hypothetical would be a character that deliberately dies/has himself killed, knowing he will be resurrected or otherwise return to life, in an attempt to avoid his liabilities. Here, there is a good argument to be made that in the courts’ preference for substance over form, a person would not be permitted to deliberately avoid their liabilities this way. Fraud is fraud, regardless of how it is accomplished, and this sort of thumbing your nose at the legal system is likely to piss off the judge. A pissed off judge will probably find some way to nail you, even if it involves creating new law to do it.

But what about the hero who is actually killed and is brought back to life where neither are of his own doing? Clearly there is no intent to defraud, but that doesn’t mean that a court will simply hand out a free pass. Contracts are contracts and debts are debts, and though neither will follow one beyond the grave, coming back from the grave would seem to require leaving its protections behind as well. Here, it seems plausible that a judge would base the treatment of any outstanding debts on the way that the character goes about the rest of his assets. If he wants a clean break and does not attempt to reclaim any of his property that has gone through probate, a court could easily adopt the position that hey, he did die, and as he isn’t trying to “undo” the legal effects of his death beyond the mere fact of his resurrection, allowing the debts to remain discharged makes some sense.

If, on the other hand, the character attempts to return as closely as possible to the legal position he occupied before he died, equity would seem to demand that his creditors be given the opportunity to reassert their claims.  In particular, the equitable doctrine of unjust enrichment would require that, at a minimum, any assets subject to a claim by a creditor could not be reclaimed by the resurrected character without also reviving the debt (no pun intended).

III. Conclusion

So it turns out that these are both examples of how the law might actually be more resilient than it might otherwise appear. Though resurrection does pose interesting issues for judges in both criminal and contract law, it would seem that the legal system already possesses the necessary doctrines and flexibility to handle them.

Commentary from James Daily

I generally agree with my co-author here.  I think there is one interesting edge case, however, and that is the treatment of characters who routinely come back from the dead as a matter of course.  For example, some characters have such powerful regeneration abilities that they will come back from the dead on their own (e.g., Doomsday, Claire Bennet, Lobo).  If someone ‘kills’ such a character only to have them self-resurrect in the expected fashion, has a murder actually been committed?  Note that at the very least attempted murder has been committed as has aggravated battery, so the defendant would still be guilty of a serious crime, but not murder, which would foreclose the death penalty, at least in the US per Coker v. Georgia.

I should probably first explain why attempted murder is still on the table, even if it were factually impossible to permanently kill the victim (e.g. the weapon in question could not actually have killed the victim or the victim would necessarily self-resurrect).  Factual impossibility is generally not a defense to an attempted crime; it suffices that the defendant intended to kill the victim or to cause grievous bodily harm.  It seems likely that any damage sufficient to temporarily kill a self-resurrecting character would fit the bill.

Regarding the primary question: one approach would be to analogize to cases in which the victim was briefly clinically dead but was later resuscitated and then recovered.  Unfortunately, I could only find cases in which the victim was resuscitated but then steadily got worse and ultimately died.  If any knows of a case on point, please let me know.

Instead we can turn to the legal definition of death.  This varies from state to state, but a majority hold that brain death is synonymous with legal death.  In 1975 the American Bar Association stated: “For all legal purposes, a human body with irreversible total cessation of brain function, according to usual and customary standards of medical practice, shall be considered dead.”  61 J. Am. Bar Assoc. 464 (1975).  This is not exactly the definition used in many states, but it’s close enough for our purposes.

In the case of a temporarily dead self-resurrecting character the damage done to the brain is demonstrably reversible.  On the other hand, it may still be irreversible according to the usual and customary standards of medical practice.  A criminal defense attorney would certainly try to argue that a self-resurrecting character cannot be murdered, but I think the courts would be unpersuaded.  The public policy against murder is very strong, perhaps the strongest there is, and the courts would almost certainly adjust their definition of death to encompass the temporary deaths of self-resurrecting characters.