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

DeLay and Blagojevich: Not Vindicated, Not Innocent, and Not Ethical

Both Rod Blagojevich and Tom DeLay were taking victory laps this week, Blago because a jury failed to come to an agreement on his trial for selling political favors, DeLay because the Justice Department dropped its prosecution of  him. In the minds of both of these corrupt and shameless politicians, they were indeed vindicated, because both operate under the delusion that if one’s conduct manages to avoid breaking laws to the point where one could be found guilty beyond a reasonable doubt, then that conduct is “ethical.” This same delusion has been shared by many other human blights on American society and ethical corrupters in business and politics, including Presidents Richard Nixon, and Bill Clinton, Ken Lay, the executives at Goldman Sachs and AIG, Marion Barry, Maxine Waters, and too many others to mention. It is still a delusion. Continue reading