A Marin Superior Court judge heard arguments Tuesday over whether a Novato killer's estate should be forced to pay restitution now that he is dead.

Edward Schaefer, the motorcyclist who struck and killed 9-year-old Melody Osheroff and maimed her father Aaron, was ordered to pay nearly $1.4 million in restitution after his conviction in May. The money was intended to cover the massive medical expenses for Aaron Osheroff, whose injuries included an amputated leg.

Schaefer, 44, was sent to prison and his conviction was appealed. But on July 26, less than two weeks after arriving at San Quentin, he was stabbed to death in a prison yard.

In October, as a standard formality, a state appeals court vacated Schaefer's convictions on the principle that he did not have the opportunity to have his name cleared on appeal. Two months later, the public defender's office filed a motion to have the restitution order nullified as well.

"The death of a defendant pending his appeal of a criminal conviction abates not only the appeal but all proceedings in the prosecution from its inception," Deputy Public Defender Michael Schroettner, who represented Schaefer in his murder case, wrote in a motion to Judge Terrence Boren.

"Under the abatement principle, Mr. Schaefer's death vacates his conviction and this court's authority ... to impose restitution."


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The district attorney's office filed a countermotion, conceding that Schaefer's conviction should be vacated but arguing that the restitution order should stand. Deputy District Attorney Geoff Iida, who prosecuted Schaefer, described the restitution as "compensatory in nature" for Melody's death and her father's long ordeal of surgery and rehabilitation.

"In this case, the court determined at the sentencing hearing that the Osheroffs suffered an economic loss as a result of the defendant's conduct," Iida wrote. "That determination stands separate and apart from the jury's verdicts convicting the defendant two months earlier."

The lawyers argued before Judge Boren on Tuesday at a hearing attended by Aaron Osheroff and his wife, Kimberly, as well as Schaefer's mother, Sheri Dunne, and his daughter. Boren plans to issue a written ruling within two weeks.

Meanwhile, the Osheroffs have a civil lawsuit pending against Dunne and her business, the Marin Beauty Co., as well as the city of Novato. Schaefer struck the Osheroffs in a crosswalk on San Marin Drive, a city-maintained street.

A trial date is also pending for Schaefer's alleged killer, San Quentin inmate Frank Souza, who is already serving 60 years to life for killing a homeless man in San Jose. Authorities said Souza, 31, alluded to Melody Osheroff after stabbing Schaefer seven times with a makeshift metal spear.

"All I got to say is, nine-year-old girl," he told a prison official, according to grand jury testimony.