The predator priest, the corrupt CEO, and the murderous Patriot, all innocent because they’re dead….

Massachusetts judge Judge E. Susan Garsh ruled that the state’s law required her to vacate the 2015 murder conviction of former New England Patriots star Aaron Hernandez. Because Hernandez’s appeal was pending when he committed suicide in his cell, she said,  the common law doctrine known as abatement ab initio applied: a defendant’s death before an appeal erases his conviction. Prosecutors argued that Hernandez’s purpose in hanging himself on April 19 was to to void his conviction, but Judge Garsh responded that she was bound to follow state law anyway, especially since Hernandez’s motives were unknown. She had presided at the trial in which a jury found Hernandez  guilty beyond a reasonable doubt of the murder of semi-professional football player Odin Lloyd.

The fact that some legal and ethical puzzles have proven unsolvable despite troubling lawyers, judges, legislators and scholars for decades (and sometimes centuries) is one of the best proofs I know for The Ethics Incompleteness Principle, which holds that no rule or principle makes sense in all circumstances, and that human beings are incapable of articulating perfect laws and rules that will work as intended in every case. Abatement ab initio is a classic example.

Abatement is the dismissal or discontinuance of a legal proceeding “for a reason unrelated to the merits of the claim.” It is available in both a civil and  criminal context. Traditionally, the death of a criminal defendant following conviction  but before an appeal can be made mandates abatement. The effect of  the doctrine is to discontinue all proceedings  and to dismiss the appeal as moot, overturn the conviction, and dismiss the indictment. The deceased defendant reverts back to his status before being charged. In the eyes of the law, he is innocent…again.

This anomalous principle was last in the news when former Enron CEO Ken Lay died.  Lay’s schemes had gleaned approximately $217 million in income from sales of artificially inflated Enron stock, and he was further enriched by his $19 million in salary, which was presumably paid to him to lead the company to success, not use it to scam the markets. Thousands of employees and millions of stockholders  lost pensions, savings and investments as a result of the Enron plot, and the Justice Department brought various fraud-related charges against the defunct company’s leader. Ken Lay was found incredibly guilty on May 25, 2006 of all ten counts of the indictment. The sentence would almost certainly include restitution of many millions of dollars to Lay’s victims.

On July 5, 2006, however, Ken Lay died of a sudden heart attack, the lucky bastard.  His lawyers  moved to invoke a Fifth Circuit precedent that called for the vacation of the conviction of any defendant who died before having an opportunity to pursue an appeal—abatement ab initio. Since judgment had not yet been entered, and sentencing had not yet occurred, Lay had no opportunity to appeal. Desperate prosecutors argued that “the Lay Estate should not be unjustly enriched with the proceeds of fraud,” though Enron’s victims or the government could file a civil action against the estate for damages.  That, however, would require the plaintiffs to prove the case against Lay all over again, requiring years of  expensive litigation. Notwithstanding, Lay’s conviction and the charges that led to them were dismissed.

Another infamous example was back in Massachusetts, where Hernandez is suddenly innocent (but dead).  John Geoghan was an infamous  former priest convicted of sexually molesting children, in one of the cases that helped expose the world-wide scandal of the Catholic Church protecting and abetting its sexual predators.  When Geoghan was murdered in his cell in 2003 with an appeal of his conviction pending, a court cited abatement and declared him as innocent as his victims.

Crazy, no? Or not so crazy: the ability to review a conviction is essential to protecting due process and ensuring that the innocent are not unjustly punished. There have been so many safeguards added to the bare bones guarantees in the Constitution (there was no constitutional right to an appeal in the document as written) that modern trials are full of pitfalls and opportunities for error, and the greater the chance of error, the more essential appellate review becomes. Modern jurisprudence holds that without such review, it is impossible  to
guarantee  the rights of  criminal defendants.

On the other side of the argument, victims rights organizations have been fighting abatement. Two states, Connecticut and Georgia, reject the doctrine, and not all courts accept it either. Courts that reject abatement simply dismiss the appeal of the dead defendant as moot but do not overturn a conviction.

A law review article by Timothy Razel explored five proposed alternatives to abatement as the response when a convicted criminal dies before an appeal, and explains why all are fatally flawed. He proposes a sixth solution: the abatement hearing…

If, after a defendant has been convicted, he or she dies before having an opportunity to pursue an appeal of right, the following procedure should take place. If the court of appeals has jurisdiction already, it should remand the matter to the trial court. If no appeal has yet been filed, the trial court should retain jurisdiction. The trial court should then conduct a short
hearing.  At this hearing, the attorney for the decedent should continue to represent him or her. The purpose of the hearing would be to determine whether the case against the decedent should be abated ab initio or whether the conviction should be allowed to stand as final. There would be no third option. The court should hear evidence, including witness testimony, if necessary. Due to the fact that these cases have differing allocations of opposing interests, the court should not use a per se rule. Instead, the court should consider and balance four factors to determine which option to take.

The factors he suggests: the likelihood of restitution, the heinousness of the crime, the level of involvement and interest of the victims and their families in the outcome of the case, and any negative effect of the conviction on the decedent’s family, heirs, and next of kin.

Razel’s formula certainly seems to be an improvement over the process as it is now, leading to such abominations as the legal exoneration of Aaron Hernandez. I would also recommend that whatever the motive for a convicted criminal’s suicide, it should take abatement off the table.

After all, isn’t suicide just an extreme method of waiving the right to appeal?

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Pointer: ABA Journal

Source: Fordham Law Review