Introduction
On May 24, 2019, 50-year-old mother of five, Jennifer Dulos, disappeared.[1] Jennifer was last seen dropping her children off at school and on a neighbor’s security camera returning home at 8:05 a.m. in New Canaan Connecticut.[2] Authorities believe that when she returned to her home, her husband, Fotis Dulos, attacked her “in her garage, where blood stains and blood spatter were found.”[3]
In 2017, Jennifer had filed for divorce from her husband because she was afraid of him and for her children’s safety.[4] In court documents Jennifer is quoted saying, “I know that filing for divorce . . . will enrage him. I know he will retaliate by trying to harm me in some way.”[5] It is alleged that Fotis “bound Jennifer with zip ties” and put her inside her own car, which was later discovered near Waveny Park in New Canaan.[6] Her car was caught on another security camera at 10:25 a.m. leaving her home.[7] Near Waveny Park, Fotis allegedly left Jennifer’s car and drove away in a pickup truck belonging to “Pawel Gumienny, a former project manager for Fotis Dulos’ company.”[8] “Gumienny usually left his . . . pickup at Fotis Dulos’ Farmington, [Connecticut] home during the week while using his employer’s vehicle. . . .”[9] However, his car was traced from surveillance cameras to and from New Canaan on the morning Jennifer disappeared.[10]
The night of Jennifer’s disappearance, Hartford surveillance cameras also caught two people resembling Fotis and his girlfriend, Michelle Troconis, “tossing bags that were later determined to contain [Jennifer’s] blood and clothing” into various dumpsters along a four mile stretch. [11] Fotis later took Gumienny’s pickup truck for a car wash and interior detail without Gumienny’s knowledge and “continued to pressure Gumienny to remove the seats” in his car and get rid of them.[12] Gumienny complied because he did not want to lose his job, but kept the seats.[13] He turned them over to the police and Jennifer Dulos’s blood was found on one of them.[14]
Fotis and Michelle were arrested on June 1, 2019 for “tampering with or fabricating physical evidence and hindering prosecution” and they both pleaded not guilty.[15] On January 7, 2020, Fotis was arrested and charged with “capital murder, murder and kidnapping.”[16] He was supposed to attend an emergency bail hearing, when officers saw him in his garage, sitting in his car unresponsive.[17] Fotis wrote a suicide note, proclaiming “I refuse to spend even an hour more in jail for something I had NOTHING to do with.”[18] On January 30, 2020, Fotis died from carbon monoxide poisoning.[19] On March 3, 2020 “a judge granted a nolle prosequi request by prosecutors to dismiss the murder charges against Fotis Dulos, ending that criminal case.”[20]
New Precedent in Connecticut Courts
This case begs the question of whether a criminal case can continue even after the death of the defendant.[21] Some argue that the purpose of a criminal conviction is to, “respond as a society to the conduct of the criminal . . . once somebody is dead, there is absolutely nothing that can be achieved from a criminal prosecution.” In short, “the system does not prosecute people who are dead.”[22] Prosecuting the deceased would not further the criminal law’s goals of incapacitation, rehabilitation, retribution and deterrence.[23] Surprisingly, Fotis’s attorney, Norm Pattis, disagrees and has argued that the trial should proceed so that he can clear an innocent man’s name.[24]
A seminal case Durham v. United States (1971) granted a petitioner’s application for writ of certiorari even though the petitioner had died.[25] This case was directly overturned by Dove v. United States (1976), which denied a petitioner’s application for writ of certiorari after the petitioner died.[26] The court failed to provide a strong rationale for whether Dove should be applied only to petitions for certiorari or to all cases.[27]
A trial with a dead defendant has never occurred in Connecticut.[28] Even though it is unprecedented outside of Connecticut, Fotis’s case should continue and set precedent for Connecticut for two main reasons: (1) it would not burden the state to continue Fotis’s trial if the prosecutors intended to bring trials against Michelle Troconis and Kent Mawhinney (Dulos’s former attorney), who were both facing charges of conspiracy to commit Jennifer’s murder and (2) to either clear Fotis’s innocence or determine his guilt to help his family and society understand the truth of what happened.[29]
No Burden on State
The case against Fotis Dulos should continue because it would not be a burden on the state to continue the case with two parallel proceedings occurring.[30] The court should “substitute Dulos’ estate as the defendant.”[31] Michelle and Kent allegedly conspired with Fotis to commit Jennifer’s murder.[32] Therefore, if the prosecution brings a case against Michelle and Kent, the same factual scenario, circumstances, evidence, police officers, forensic analysis, and expert testimony will be used in Fotis’s case.[33] Since the state would be trying two other individuals using very similar resources, there is not a waste on judicial resources and time.[34] Todd Fernow, a law professor at University of Connecticut, notes that there is not a ruling saying that bringing a case when the defendant is dead is prohibited.[35]
Search for the Truth
Additionally, the case against Fotis Dulos should continue because it would better serve the interests of the deceased, the survivors, and society if Fotis is declared innocent or guilty.[36] First, if Fotis is innocent and his attorney is willing to continue fighting for him, his name could be cleared.[37] Pattis firmly believes that Fotis was set up and that someone else murdered Jennifer.[38] According to him, the video surveillance of Fotis throwing trash bags away was Fotis trying to get rid of Jennifer’s items that were left on the family porch.[39] “Fotis Dulos released a . . . public statement in July [2019], saying he understands ‘the public’s perception of me as a monster given the little they know about the case.’” [40] If Fotis is innocent, it is important that his name is cleared and that the world does not remember him as a monster.[41] Despite all the evidence that seems to implicate Fotis, Pattis still wants to continue the case in good faith.[42] Fotis’s estate should have its fair day in court. Moreover, giving Fotis’s estate a fair day in court will increase public trust and confidence in the judicial system.[43]
Second, it is important that his family, including his five children, know whether he was innocent or not. If Fotis is acquitted, it could relieve his kids of the stigma attached to the fact that people believe their father killed their mother. [44] Stigma may appear insignificant, however, survivors such as Fotis’s family have to continue to live with embarrassment and may lose employment opportunities due to family criminal background checks.[45] Finally, continuing the case will help society as a whole who have been following this case or are related to someone involved in this case. Pattis has implied that there is still information being withheld by a gag order that could clear Fotis’s name.[46] The case should be continued to reach the truth about the disappearance of Jennifer and to determine whether Fotis is guilty or innocent.
Conclusion
As Fotis’s attorney has stated, “Mr. Dulos was tried and convicted in the court of public opinion. Now he has been executed.”[47] The “Connecticut mystery” of Jennifer Dulos should not be left unsolved.[48] Even though Fotis is dead, Fotis’s estate should be the new defendant in the case to determine Fotis’s guilt or innocence and to finally find the truth for society and those closest to Fotis and Jennifer.
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*Brittany Kouroupas, J.D., expected May 2022, The George Washington Law School. I would like to thank the staff of the Criminal Law Brief for giving me this opportunity and mentorship to write about a field of law I am passionate about.
[1] Emily Shapiro, A Connecticut Mystery 1 Year Later: A Timeline of the Jennifer Dulos, Fotis Dulos Case, ABC NEWS (May 21, 2020, 1:30 PM), https://abcnews.go.com/US/connecticut-mystery-timeline-disappearance-mom-jennifer-dulos/story?id=63500830.
[2] See id.; see also Dave Altimari, Video Cameras are Everywhere–and Investigators Are Using Them Extensively in the Case They Are Building Against Fotis Dulos, HARTFORD COURANT (Sept. 8, 2019, 6:00 AM), https://www.courant.com/news/connecticut/hc-news-new-canaan-dulos-surveillance-video-20190908-y4znjn7445cmxm35ffqmhhuomi-story.html.
[3] Shapiro, supra note 1.
[4] Id.
[5] Id.
[6] Id.
[7] See id.; see also Tracing Fotis Duos’ Movements the Day Jennifer Dulos Vanished, STAMFORD ADVOC. (Sept. 10, 2019, 3:54 PM), https://www.stamfordadvocate.com/local/article/Jennifer-Dulos-case-Police-trace-Fotis-Dulos-14426897.php.
[8] See Lisa Backus & John Nickerson, Legal Expert: Prosecution Telling Fotis Dulos ‘We’re Coming After You’, STAMFORD ADVOC. (Sep. 7, 2019, 11:10 PM), https://www.stamfordadvocate.com/local/article/Legal-expert-Prosecution-telling-Fotis-Dulos-14418219.php.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] See Shapiro, supra note 1.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Id.
[21] See Nicole Leonard, Fotis Dulos’ Death Raises Questions for Courts, CONN. PUB. RADIO (Feb. 3, 2020), https://www.wnpr.org/post/fotis-dulos-death-raises-questions-courts.
[22] Id.
[23] See Lori R. Dickerman, Disposition of a Federal Criminal Case When Defendant Dies Pending Appeal, 13 U. MICH. J.L. REFORM 143, 144 (1979).
[24] See Leonard, supra note 21.
[25] See Durham v. United States, 401 U.S. 481, 483 (1971).
[26] See Dove v. United States, 432 U.S. 325 (1976).
[27] See Dickernman, supra note 27, at 146.
[28] See Leonard, supra note 21.
[29] See Dakin Andone, Fotis Dulos is Dead. But His Attorney Still Wants to Prove His Innocence, CNN (Feb. 1, 2020, 5:23 PM), https://www.cnn.com/2020/02/01/us/fotis-dulos-case-future/index.html.
[30] Id.
[31] Id.
[32] Id.
[33] See id.
[34] See id.
[35] Id.
[36] See Dickerson, supra note 27, at 143.
[37] See Shapiro, supra note 1.
[38] Id.
[39] See Aaron Katersky & Emily Shapiro, Defense Claims Fotis Dulos was Framed for Murder of Estranged Wife, ABC NEWS (Mar. 3, 2020, 12:13 PM) https://abcnews.go.com/US/judge-grants-prosecution-request-end-murder-case-fotis/story?id=69357529.
[40] See Shapiro, supra note 1.
[41] Id.
[42] Id.
[43] Id.
[44] See Dickerman, supra note 13, at 148.
[45] Id.
[46] See Alfred Branch, ‘It’s Personal,’ Says Fotis Dulos’ Attorney About Continuing Case, PATCH (Feb. 5, 2020, 7:28 PM), https://patch.com/connecticut/newcanaan/its-personal-says-fotis-dulos-attorney-continuing-case.
[47] Thea DiGiammerino & LeAnne Gendreau, Fotis Dulos Declared Dead; Family Wants to Clear His Name, NBC CONN. (Jan. 31, 2020, 7:56 PM), https://www.nbcconnecticut.com/news/local/fotis-dulos-left-note-proclaiming-his-innocence-court-docs/2217062/.
[48] See Shapiro, supra note 1.
**Photo courtesy of Julia Jacobo, 5 Children of Missing Connecticut Mom Are ‘Healthy and Well’ Family Says, ABC NEWS (Nov. 24, 2019), https://abcnews.go.com/US/children-missing-connecticut-mom-jennifer-dulos-healthy-family/story?id=67271463.