People often ask if there’s a sure-fire, fool-proof way to beat a criminal case.  There is, but it’s not recommended.

While Mr. Libous was convicted last year of lying to F.B.I. agents and expelled from the State Senate, prosecutors have said that the statute of limitations barred them from charging him with the more serious crimes that were the subject of his lies: crimes like bribery and fraud.

Now, more than a year after his conviction, and some three months after his death from prostate cancer at 63, it might be said that time is again on his side. And it appears likely to help him, in the eyes of the federal authorities, get away with more, including the crime for which he was already convicted, despite his death.

You read that right. The trick is to die before the conviction is final. Ha! That’ll show ’em.

That is because Mr. Libous died after he filed his notice of appeal, but before it had been adjudicated. A seldom-used legal doctrine known as abatement ab initio, or abatement by death, allows the family or estate of a felon, under such circumstances, to move to have the conviction vacated and the indictment dismissed.

Not to get all technical, but “ab initio” is Latin for “from the beginning,” meaning that death before the conclusion of the case abates the prosecution from the outset like it never happened. Why? Because the defendant is dead.

Ironically, the New York Times headlines the story as an “Obscure Legal Doctrine,” which is nonsensical. It’s hardly obscure. It’s just that it doesn’t happen as frequently as Brady violations, though it is more common than Third Amendment cases. It’s “seldom used” because not enough defendants die during the course of a prosecution to make it frequently used. Go figure. Among the defendants who do die, it’s used all the time.

So what’s the big deal?  Money, baby.

There could be significant practical consequences. For one, [Libous’ lawyer, Paul] DerOhannesian is also seeking the return of the $50,000 fine that the judge in the case, Vincent L. Briccetti of United States District Court in White Plains, levied when he sentenced Mr. Libous.

If the case is abated from the outset, then so too is the sentence. They can’t give the dead guy back the time he spent in prison awaiting the resolution of his appeal. They can’t give that back to living guys either, but that’s not the issue here. But the collateral punishments, the fine imposed, is similarly subject to abatement. If paid, whether because the defendant gave a check or the government seized his assets and handed the loot over to itself, then it must be returned upon abatement because the sentence falls upon abatement.

And what’s breaking their hearts is that the bad dude (or in the example used in the story, the bad New York State Senator dude) is getting away with it!  It’s not enough that the guy is dead. It’s not enough that everybody says he did it. Just because of the “technicality” that the case has not reached its final resolution and the guy had the audacity to die of cancer, he’s getting away with it!

“A defendant shouldn’t be labeled guilty until he’s had the chance to challenge the appropriateness of rulings and findings and legal principles applied in his case,” Mr. DerOhannesian said in a telephone interview. “The case is not over until all that is done.”

The prosecutors in the case, from the office of Preet Bharara, the United States attorney for the Southern District of New York, are expected to file an answer to Mr. DerOhannesian’s motion by Monday. James M. Margolin, a spokesman for the office, said on Thursday that they would have no comment.

There is a possibility that Preet’s people will respond with, “yeah, he’s dead. Oh well. We’ll just have to find cash to snag somewhere else. Have a nice day.”  But this doesn’t seem to be what William Rashbaum, the writer, sees as “justice.”

During the sentencing, Judge Briccetti called Mr. Libous’s lies about the payments “disgraceful,” saying, “you knew there was an active criminal investigation, and you really just wanted to cut the investigation off at the pass.” Mr. Libous, the judge continued, then made a choice “to lie in order to obstruct that lawful criminal investigation.”

The judge called the lies “blatant” and excoriated Mr. Libous as showing a “total lack of remorse.”

In the old days, one didn’t speak ill of the dead. When Judge Briccetti went on his tear, Libous was being sentenced, so at least he wasn’t dead, even if the court’s moral excursion exceeded his duties under § 3553(a).  But Libous is dead now, so what’s the purpose of Rashbaum’s quoting the nastiest things the judge had to say about Libous after his passing?

There is outrage at the idea that someone we hate, someone who did something that we’re certain, because even the judge said so, was really bad, might walk.  Law is fine and all, as long as it gives us the outcome we demand of it, which restores our faith in the system because the system did what we want it to do. When the system does what we disagree with, it sucks. And abatement by reason of death sucks, because why should a guy get a free pass just because he’s dead?

There is no prison sentence that can be imposed on a corpse, no matter how sad that makes you. The only piece at risk is money, the ability to fine a defendant, seize his assets, maybe restitution to victims if that’s at issue. And this “obscure doctrine” makes this impossible, no matter how sure people are that he deserved it.

Maybe he did deserve it. Maybe the fine is totally appropriate. But he beat the system and the government is going to have to give the money back, as painful as it may be let go of the loot. All Libous had to do was die.