A state appeals court has reversed a $1.4 million restitution award for the family of Melody Osheroff, the Novato girl killed by a drunken motorcyclist in 2009.
The restitution order against the motorcyclist, Edward Schaefer, should have been vacated along with his convictions when he was killed by another inmate at San Quentin State Prison in 2010, a three-judge appeals panel ruled.
After Schaefer's death, state law required his convictions to be vacated because his appeals did not have a chance to run their course. Judge Terrence Boren, the Marin judge who presided over Schaefer's trial, duly voided the convictions, but he let the restitution order stand.
The appeals court ruling reversed Boren, sending it back to him to cancel the restitution order as well. The ruling was released Aug. 29 by the 1st District Court of Appeal in San Francisco.
Paul Carroll, the state-appointed lawyer who argued the restitution dispute on behalf Schaefer's mother, said state law bars a restitution order if there is no conviction. He said Judge Boren made "a dramatic legal error."
"The person dies, the case just dies with him," Carroll said. "Everything stops."
It is unclear to what extent Schaefer, or any estate he might have left behind, could have paid restitution anyway. But his alleged estate, along with the city of Novato, is still named in a civil lawsuit by the Osheroffs that is scheduled to begin trial in November.
struck 9-year-old Melody and her father, Aaron, in a crosswalk on San Marin Drive. Melody died the next day, her father suffered massive injuries that included a leg amputation, and the lawsuit claims the city was negligent in its maintenance of the street and crosswalk.
Walter Walker, the family's attorney in the lawsuit, said that while Schaefer's family denies he had any assets, there is information suggesting he had land in Idaho. Walker said the truth could come out at trial, and the jury will decide on damages.
"We're not letting them go just based on their say-so," he said. "This could be the largest personal injury verdict in the history of Marin County."
Novato has filed a motion asking Judge Faye D'Opal to dismiss the case against the city. A hearing on the motion is set for Sept. 21.
In another development, the San Quentin inmate who pleaded guilty to murdering Schaefer, Frank Souza, concluded his own restitution proceedings Wednesday. Under an agreement with prosecutors, Souza agreed to restitution amounts of $3,896.80 to Schaefer's mother and $4,870 to his sister for funeral expenses, lost wages and other costs, attorneys said.
But Souza, who is serving life in prison without the possibility of parole, has nothing to lose if he disregards the restitution payment.
Souza admitted killing Schaefer, 44, in retaliation for Melody's death. Walker, the Osheroffs' lawyer, said Souza actually hurt the Osheroff family more, because killing Schaefer made it even harder for the family to collect restitution for the massive medical bills.
Contact Gary Klien via email at firstname.lastname@example.org
©2012 The Marin Independent Journal (Novato, Calif.)
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