Aaron Hernandez And The Weird Legal Doctrine Of Abatement Ab Initio

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. Continue reading

Ethics Quote Of The Month: Ann Althouse

battery

“To everyone who likes that Lewandowsky got charged: Will you agree that everyone who does nothing more than that should undergo criminal prosecution? Are you willing to pay the taxes to cover that? Are you ready to find out that you’ve already done it and you’re going to be needing to hire a lawyer? Oh, but it’s so funny when it happens to somebody else, somebody you don’t like. If that’s what you think, please just admit to yourself that you are entirely morally corrupt.”

–Law professor and blogger Ann Althouse, taking the popular position among the talking legal heads on CNN and elsewhere that charging Trump’s campaign manager for the technical crime of battery for for what appears to be minor contact on videotape is an abuse of prosecutorial discretion.

Ann is playing law professor here, and it’s hard to tell if she is asking these questions to provoke thought from the knee-jerk partisans and virulent Trump-haters, or if she really believes everything she wrote. I;m a fan of Professor Althouse, so I want to find  a way to justify this post of her’s, which raises valid points and ignores others equally valid.

Do I “like” the fact that Lewandowsky was charged? I probably wouldn’t have charged him, but I’m not sorry he was charged. Why was a campaign manager grabbing a reporter? Why did the Trump organization react to the reporter’s complaint by attacking her honesty and character? I know the law shouldn’t be used to inconvenience people who act badly, and that doing this is usually an abuse of power. Still, do I like the fact that one of Trump’s thugs isn’t getting away with the thuggishness encouraged by his boss? Yes, I guess I do.

The charge can be justified on utilitarian grounds. Today I saw a cable TV news exchange regarding Fields’ complaint on CNN, where a lawyer explained that any unconsented touching is battery, and the interviewer was shocked. “What?” she said. Yes, I remember a lot of classmates in first year of law school being surprised at that too.

It’s the Common Law: nobody has a right to touch anybody else. I love that principle, myself: I don’t touch people unless I have permission, and they better not touch me. It’s  per se battery, and while we usually don’t press it, we might if the batterer is enough of a jerk, or does more harm than he intended. If charging Lewandowsky makes people think twice before laying their hands on me or anyone else, good. Sending a message to discourage others from wrongful acts is always a valid reason to charge someone. Continue reading

Dancing With Thomas Jefferson: How Assholes Make the Law Spoil Life For Everyone

Coming to a place of honor and reflection near you.

On Saturday, the U.S. Park Police forcefully arrested five “Code Pink” protesters under the dome of the Jefferson Memorial for defying a recent Federal Appeals Court ruling that dancing at federal monuments was not constitutionally protected expression.

Perhaps you missed that ruling earlier this month, which was, I presume, made necessary by the realization that a flash mob could break out at any moment at the Lincoln Memorial or the Alamo. That was not the threat in 2008, however, when Mary Oberwetter was arrested, also at the Thomas Jefferson Memorial, for hoofing to celebrate Thomas Jefferson’s birthday.

She sued the National Park Service for violating her First Amendment rights, and on May 17 the U.S. Court of Appeals for the D.C. Circuit held that the Jefferson Memorial should have a “solemn atmosphere” and that dancing, silent or otherwise, was an inappropriate form of expression there. The appellate judges concurred with the lower court that the memorial is “not a public forum,” and thus demonstrators must first obtain a  permit. Demonstrations that require permits in the Park Service’s National Capital region are defined as

“…picketing, speechmaking, marching, holding vigils or religious services and all other like forms of conduct which involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which has the effect, intent or propensity to draw a crowd or onlookers. [The] term does not include casual park use by visitors or tourists which does not have an intent or propensity to attract a crowd or onlookers.”

The Appellate Court wrote: Continue reading

Guest Commentary: “When Children Work; A Dialogue”

By Paul Petersen

[Paul Petersen is the founder and president of A Minor Consideration, a non-profit advocacy group that seeks to protect the welfare of juvenile performers. Mr. Petersen was a prominent child star himself, most famously as “Jeff Stone” on the long-running TV comedy, “The Donna Reed Show.” The following commentary, also posted on his website, is inspired by the hearings this week on proposed child labor legislation in Pennsylvania, where “Jon & Kate Plus 8” was filmed. The legislation proposed  by State Representative Tom Murt defines reality television and would require all minors to have work permits issued by the state Department of Labor and Industry to ensure all adequate provisions have been made for the minor’s educational instruction, supervision, health and welfare. The bill also provides that minors can only work between 7 a.m. and 10 p.m., and sets guidelines for the amount of hours, work, recreation, school and activities per day. A certified teacher would be required on the set of any production to monitor working conditions, and the bill would require 15 % of a child actor’s gross earning be set aside by the employer in a trust.]

Imagine if your boss unilaterally declared that your time spent in a commercial workplace wasn’t work at all but merely “participation.” That might be said of the drug store cat, or a barnyard animal, but to say that about a living, breathing, conscious human being passes all understanding. Yet that is precisely the position taken by reality show Producers and the Networks that broadcast commercial products called “reality shows” that feature children. Continue reading