Nelson v. Colorado Page 2

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Media for Nelson v. Colorado

Audio Transcription for Oral Argument - January 09, 2017 in Nelson v. Colorado

Stuart Banner:

They were reversed on appeal.

Shannon Nelson was retried and was acquitted of all charges.

Lewis Madden convictions were reversed and the prosecutor declined to -- to retry the case.

And so while it was the State's money while the convictions existed, once those judgments of conviction cease to exist, at that point it's no longer the State's money.

Samuel A. Alito, Jr.:

I thought your argument was -- was this, but what you're saying now and a lot of your brief is much more complicated, but the simple argument I thought was this: This was your client's money.

It's a certain amount of dollars.

Okay.

It was taken away from them as a result of a trial that was flawed and therefore they were deprived of that property without due process of law.

I thought that was the argument. Am I right or not?

Stuart Banner:

You're right.

Samuel A. Alito, Jr.:

Okay.

Now, if that is the argument, there are two complications that I see in your briefing.

One is that you concede that they could be denied restitution for equitable reasons.

Let's just take that. Where -- where else in the law of due process would something like that come up?

Stuart Banner:

We -- we -- the reason why we said that is that in several of -- of this Court's older cases, the Court describes these refunds as equitable. Now, in a -- in a garden variety -- in garden variety criminal cases like this one, there would be no equitable considerations that would interfere with a refund of the money. But there -- there are -- it's possible to imagine other sorts of cases where it would.

And so, for example, the Court -- as this Court mentioned, as we say in the -- in the reply brief, this Court mentioned an example in which an insurance case in which a refund -- a full refund would provide overcompensation for some reason to -- to the successful appellant, and in such a case, the refund for equitable reasons would have to be scaled back. In an ordinary criminal case like -- like ours, there's nothing like that.

Those -- those sorts of equitable considerations are very, very far from -- from -- from a case like this one.

And, you know, Colorado talks --

Elena Kagan:

If that's right, and this is the basic argument, it's our money by virtue of State law, and once the conviction disappears, why doesn't the State have to proactively return the money? In other words, why is it even required for the person to bring any kind of refund action against the State?

Stuart Banner:

No.

The State does proactively have to refund the money.

There -- there is no requirement for the successful appellant to bring -- to bring an action.

Rather, the -- what the --

Elena Kagan:

So your complaint is not to the nature of this action and to exactly what you have to prove.

You're saying that as soon as the conviction is vacated, the State has to put a check in the mail.

Stuart Banner:

Well, okay.

That may be a little too -- a little too simple.

So that the -- in our view the -- the -- a proper procedure would be the procedure that was followed in these cases, where, after -- in Shannon Nelson's case, after she was acquited, she filed a motion back in the original trial court saying, look, I've been acquited, please give me my money back.

Elena Kagan:

No.

I guess I'm asking, if your theory is right, why is even that necessary? If your theory is right, it seems -- I mean, you know -- you know, you might file a motion because the State hasn't done what it's supposed to do, but it seems as though the obligation on the State's part is immediately to put a check in the mail.