Monica Delateur
On April 19, 2017, former New England Patriots football player Aaron Hernandez committed suicide at the Souza-Baranowski Correctional Center outside of Boston, Massachusetts. At the time of Hernandez’s death, the appeal of Hernandez’s conviction for the murder of Odin Lloyd was pending in front of the Supreme Judicial Court of Massachusetts. This high-profile suicide sparked a debate around the doctrine of abatement ab initio, applied in Massachusetts as well as a number of states at the time of Hernandez’s death. Abatement is a legal doctrine that allows a defendant’s convictions to be vacated if the defendant dies during the appellate process challenging those convictions. Consistent with this doctrine, after Hernandez’s suicide, Judge E. Susan Garsh of the Bristol County Superior Court issued an order vacating Hernandez’s murder conviction. Victor Mather, Aaron Hernandez’s Murder Conviction is Nullified, N.Y. Times, May 9, 2017.
See earlier posts for the original procedural history of this case. Monica DeLateur, What is abatement and why is everyone in MA talking about it? Northeastern U. L. Rev. Forum (Feb. 7, 2018).
On January 22, 2018, as the Commonwealth was granted a cross-appeal on this issue, the case was sent to the Massachusetts Appeals Court. Case Docket, Commonwealth v. Hernandez, No. 2018-P-0087 (Mass. App. Ct. Feb. 28, 2018). However, the Commonwealth filed an application for Direct Appellate Review with the Supreme Judicial Court (SJC) on this question, meaning they asked the SJC to consider the question directly, without having to go through the Massachusetts Appeals Court first. Case Docket, Commonwealth v. Hernandez, No. DAR-25907 (Mass. Mar. 14, 2018). The application was granted on March 14, 2018, sending the question of the viability of abatement ab initio to the full bench of the SJC. Oral argument took place on November 8, 2018. Oral Argument, Commonwealth v. Hernandez, No. SJC-12501 (Mass. Nov. 8, 2018).
What was the Supreme Judicial Court’s decision?
The SJC released its opinion on March 13, 2019, finding abatement to be outdated in Massachusetts. Commonwealth v. Hernandez, 481 Mass. 582 (2019). As detailed below, the SJC states that the rule eliminating abatement applies prospectively, but makes an exception to apply the rule to the Hernandez case. Id.
In an unanimous opinion authored by Justice Cypher, the SJC concludes that the doctrine of abatement is “outdated and no longer consonant with the circumstances of contemporary life.” Id. at 582. Justice Cypher takes particular note of the fact that there does not seem to have ever been justification for the adoption of abatement and provides a sweeping history of abatement not only in Massachusetts, but in other states including Colorado and Missouri. Id. at 584-87. Justice Cypher notes that though the opinion overrules previous court precedent in Massachusetts, the doctrine of abatement is “court-created,” and the SJC is not barred from departing from “previous pronouncements if the benefits of so doing outweigh the values underlying stare decisis.” Id. at 584, 592-93.
The opinion offers an examination of the finality and punishment principles, which have been used in other jurisdictions to support the doctrine of abatement. The finality principle refers to the notion that a defendant’s conviction is not final until the defendant has had a chance to appear before an appellate court in adjudicating the conviction’s validity. However, the SJC notes that the right to appeal is not a constitutional right, but one mandated by statute. Id. at 594. Further, as the SJC iterates, the consequences of a conviction take place immediately, whether or not an appeal is taken. Id. at 595.
The punishment principle is the belief that the criminal justice system cannot effectively punish someone who has died. Id. at 596. Justice Cypher recognizes this principle, but importantly emphasizes that the interests of victims must be considered as well, and notes abatement’s impact on other collateral proceedings, including civil actions (though Justice Cypher does not note the ongoing wrongful death civil lawsuit by Odin Lloyd’s family against Hernandez’s estate). Id. at 596-99.
The SJC concludes that it is unable to find a reasoned analysis in favor of abatement, and that it will therefore no longer follow the doctrine when “a defendant dies during the pendency of a direct appeal as of right challenging a conviction.” Id. at 599. From this case forward, when a defendant dies, irrespective of cause, while their direct appeal is pending, the appeal will be dismissed as moot, with a note in the trial record stating that the conviction “removed the defendant’s presumption of innocence, but that the conviction was appealed and neither affirmed nor reversed because the defendant died.” Id.
The SJC also discusses reasons they decide not to adopt the substitution approach proposed by the Commonwealth, where the appeal could continue only if there is a motion to substitute a new party, usually a representative of the deceased person. Id. at 599-601. The opinion first notes a practical limitation regarding this approach due to the fact that no Massachusetts Rule of Criminal Procedure allows such a continuation. Id. at 599. The SJC also hesitates with this approach as the Court could “not see that there are any other surviving interests [than the state and victim] that are rightly pursued within the context of a criminal prosecution.” Id. at 601.
What is the decision’s impact on the Hernandez case?
Though the rule applies only prospectively, the SJC applied the rule to the Hernandez case, stating that it “see[s] no reason why the Commonwealth should not have the benefit of [the] new rule” when it “pursued this appeal and successfully urged us to abandon and replace that doctrine.” Id. at 602.
Hernandez’s appeal was dismissed, and a record notation was to be placed, noting that his convictions of murder in the first degree, unlawful possession of a firearm, and unlawful possession of ammunition removed Hernandez’s presumption of innocence as to those charges, and that the convictions were appealed, but neither affirmed nor reversed on appeal because Hernandez died while the appeal was pending.
The SJC takes particular note of the unique facts of this case, observing that there are suggestions that Hernandez’s death was suicide and that he may have been aware of the doctrine of abatement. However, the court does not use those facts to rest their ruling. Id. at 603 n.3.
This now places Massachusetts in contrast to the Federal system, where abatement applies when a defendant dies during the pendency of an appeal as of right. Id. at 587. As noted in the SJC opinion, 18 states and the District of Columbia still apply the abatement doctrine. Id. at 589.
A motion for reconsideration of the SJC’s decision was denied on May 8, 2019. Case Docket, Comm. v. Hernandez, No. SJC-12501 (Mass. May 8, 2019). At this point it is unknown if the parties will appeal and apply for writ of certiorari to the United States Supreme Court.
As noted in earlier posts, Odin Lloyd’s family has a wrongful death lawsuit pending against Hernandez’s estate. The reinstated conviction makes that pursuit much more promising.
How does this decision affect my practical experience?
As noted in the opinion, abatement was not a practice that occurred very often, despite this case’s attention. The practical implications of this decision will likely be limited to court costs. In its 2017 decision of Nelson v. Colorado, the United States Supreme Court stated that where a criminal conviction is invalidated, and no retrial will occur, the state is obligated to return fees, court costs, and restitution to the defendant’s estate. Nelson v. Colorado, 137 S.Ct. 1249 (2017). If a defendant’s criminal conviction is invalidated, the defendant is presumed innocent as he is “[a]bsent conviction of a crime.” Id. at 1252. However, because of the SJC’s decision, where a defendant dies while their appeal is pending, the conviction will not be invalidated, and thus court costs or restitution that had been paid from the defendant’s estate will likely not need to be returned.
Remember: if you are making an appellate argument that the court should not follow previous precedent—a difficult argument to make—it may be useful check if the doctrine is court-created. As noted in the Hernandez opinion, this fact can weigh heavily in favor of the court departing from “previous pronouncements.” Comm. v. Hernandez, 481 Mass. at 592.
Though be careful if you note something as a “longstanding” practice. The SJC takes particular issue with abatement being called “longstanding” where the first reported appellate case in Massachusetts involving the doctrine was in 1975. Id. at 585.
Additionally, if you are a student who is thinking of applying to an internship, co-op, or judicial clerkship with a state supreme court, this type of historical research may be in your future. Overall, this opinion is well calculated and researched.
Stay connected with the Forum for further updates on this case, particularly the ongoing civil proceedings.