Should a convict be recharged if victim dies?

  • Article by: ABBY SIMONS , Star Tribune
  • Updated: October 15, 2013 - 8:51 PM

Judge dismissed murder charge, citing a 50-year-old state law.

If Scott Lipe walks out of prison as scheduled next year, he’ll be six years sober, his attorney said, far removed from the chronic alcoholic who on a drunken whim stole an SUV and triggered a wreck that left its owner in a coma.

His victim, Willie Hervey, also bore no resemblance to his former self when he died in July 2012 after five years of languishing in a nursing home. He was 42.

Hervey’s brother called his death a merciful end after years of being trapped in a broken body. But the family has not received solace in what they see as a lack of justice.

“Every year I know [Lipe] is closer to getting out,” Chris Hervey said. “But did he suffer to the extent that my brother did? Not even remotely close.”

Whether Lipe should remain behind bars because Willie Hervey is now dead is a question that could play out in Minnesota’s appellate courts if prosecutors challenge a 50-year-old state law that bars additional charges against offenders if their victims die after prosecution.

Hennepin County District Judge Jay Quam on Tuesday dismissed second-degree murder charges filed against Lipe in March in the wake of Hervey’s death. He cited Minnesota Statute 609.035, a 1963 law that reads in part that “if a person’s conduct makes up more than one offense, the person may be punished for only one of the offenses.”

The law, he reasoned, applies to defendants like Lipe, who pleaded guilty to first-degree assault and was sentenced to 10 years in prison.

“Killing someone deserves greater punishment than hurting someone. From that perspective, Defendant Scott Lipe should face a murder charge for inflicting the injuries that eventually killed Willie Hervey,” Quam wrote in his order. “On the other hand, our criminal justice system places a high value on finality to protect people such as Mr. Lipe from multiple prosecutions and punishments.”

Lipe’s attorney, Craig Cascarano, applauded the ruling, but said prosecutors had told him they would challenge it if it didn’t go their way. They filed the charges, he said he was told, in hopes of changing the interpretation of 609.035.

In the meantime, a frustrated Cascarano said, his client — who was months from work release — has been transferred from Lino Lakes to a higher-security unit in Rush City and lost his privileges.

“If you want to change the law, get your bevy of lobbyists to change the law,” he said. “Don’t do it here.”

Lipe, who is scheduled for supervised release next June, declined an interview request through his attorney.

A spokesman for Hennepin County Attorney Mike Freeman said Tuesday that his office is still deciding whether to appeal Quam’s ruling, but last week, Freeman said the Lipe case called for such a challenge.

“We wouldn’t do this if we didn’t have a plausible case to make,” Freeman said before the ruling was issued. “We did some research, and I think the better weight of the evidence is that we can do this. I think Lipe gives us the clearer shot of making this legal change.”

Victim’s family favors change

It was closing time outside Mortimer’s bar in Minneapolis on June 19, 2007, when Scott Lipe asked bystanders if they would pay him to steal the black SUV idling unattended on the corner.

Just 30 years old, with five drunken-driving convictions under his belt, Lipe wasn’t deterred by a lack of takers as he jumped in the driver’s seat just as Hervey — who was escorting his girlfriend across the street — turned, spotted Lipe and jumped onto the vehicle’s running board.

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