Should a convict be recharged if victim dies?

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.

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.

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.

Lipe took off as Hervey hung on, swerving into traffic and two parked cars, knocking Hervey off and leaving him motionless on the pavement. Lipe then rolled the SUV on Franklin Avenue and fled, only to be arrested later.

Meanwhile, doctors told Hervey's family that he had very slim chances of recovery.

The most Hervey improved in five years was to allow for removal of his tracheotomy tube, but he never regained consciousness, said Chris, who visited his brother twice a week until he died.

"I don't think it really boils down to just my brother or to Scott Lipe. I think they're looking at changing things as a whole, and you have to start from something," he said. "You have to look at the aftermath; you can't just let people get away with things like this."

It's not the first opportunity the Hennepin County attorney's office has had to challenge the state statute.

Four gang members were sentenced to 14 to 20 years in prison for first-degree assault following the 2009 beating of Norman Burton on a north Minneapolis sidewalk.

Burton, who like Hervey spent his final years in a nursing home with severe brain damage, died last November of pneumonia. He was 60.

At the time, Freeman said he wasn't sure whether he could reopen the case against the four to charge them with murder.

Freeman said last week that despite the parallels between the Burton and Lipe cases, prosecutors seized the opportunity when Hervey died because Lipe was scheduled to soon see freedom.

"We didn't wait for a case to challenge this," Freeman said. "We looked at Lipe and said, 'This is wrong; let's do something about it.' "

Freeman said the results of Lipe's case could influence whether his office pursues the Burton case.

Cascarano counters that his client, who has accepted responsibility and is serving his time, is being used as a pawn in hopes of changing state law. He's prepared for an appeal, but hopes it doesn't have to come to it.

"I'm hoping … they should stop what I would call a misguided prosecution and pursue a legislative remedy, rather than in the courts," Cascarano said.