Examining the effects of a potential abatement in the aftermath of Aaron Hernandez's death

1:50 | NFL
CTE examination on Aaron Hernandez's brain could have huge legal ramifications
Tuesday May 2nd, 2017

The life and death of Aaron Hernandez has taken many unexpected turns, and his suicide is near the top of the list. On Apr. 19, just five days after being acquitted of two murders in Boston, Hernandez hung himself in his jail cell at the Souza-Baranowski Correctional Center in Shirley, Mass. The suicide is poised to make it more difficult for the families of Hernandez’s victims and alleged victims to recover in civil lawsuits against Hernandez’s estate.

Like many other states, as well as federal courts, Massachusetts recognizes abatement ab initio, which is often called abatement. This doctrine dictates that when a convicted defendant dies before their appeals have been heard, charges for which the defendant has been convicted are vacated. In fact, since “ab initio” means “from the beginning,” the defendant’s status is technically restored to a time before the defendant was even charged, let alone tried and convicted.

The day after Hernandez’s suicide, Hernandez’s attorneys filed a motion in a Massachusetts Superior Court asking for abatement of all of Hernandez’s convictions. In response, District Attorney Thomas Quinn, III of Bristol County (Mass)—where Hernandez was convicted of murdering Odin Lloyd—along with Lloyd prosecutor William McCauley and two other prosecutors have filed a motion to stop the abatement. A long legal battle likely awaits.

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Abatement and how it would impact the legal aftermath of Hernandez’s death

On the surface, abatement may seem illogical, particularly as it relates to Hernandez.

After a nine-week trial in which prosecutors called 131 witnesses and introduced more than 430 exhibits, a jury in April 2015 unanimously convicted Hernandez of murdering Lloyd in the first degree. He was also convicted of two related firearms charges. In addition, though a Boston jury last month found Hernandez not guilty of murdering Daniel de Abreu and Safiro Furtado and of most of the accompanying charges, the jury nonetheless convicted him of unlawful possession of a firearm. While Hernandez had the right to appeal those convictions (in fact, his first degree murder conviction was automatically appealed under state law), the odds of those appeals succeeding were very low. Consequently, the possibility that Massachusetts courts might soon reinstate Hernandez’s presumption of innocence and nullify two jury verdicts strikes many people as unsound and unjust: it would result in an incredibly favorable scenario for Hernandez and one that he would almost certainly not have obtained had he survived.

To some, abatement for a convicted felon whose death is caused by suicide seems especially unfair. If Hernandez’s attorneys succeed in obtaining abatement, Hernandez, or at least his estate, would be rewarded because he successfully killed himself—a perverse outcome, to be sure. Some have speculated that Hernandez took his own life in part because he knew his appeals faced slim chances and because he might have been aware of abatement. If so, that would make abatement even harder to justify since it would seem to be a way for Hernandez to posthumously clear his record. It should be noted that some courts, including the U.S. District Court for the Eastern District of Virginia, have denied abatement in cases involving prisoners who commit suicide. They have done so on grounds that abatement of a convicted felon who takes their own life would unjustly absolve that defendant of criminal liability.

So why would any court recognize abatement? The logic of such a seemingly generous outcome for Hernandez’s legacy and his estate is that the legal system cares very deeply about the role of appellate courts. These courts ensure that a defendant’s procedural safeguards were honored throughout the charging and indictment process and in the subsequent prosecution. While successful appeals are uncommon, they do happen and they occur because an appellate court identified a significant mistake by the police, prosecutors, judges or jurors that prevented the defendant from receiving a fair shake. As a result, abatement recognizes that while relatively few convicted felons would have won their appeals if they had survived, few is greater than none. This viewpoint is consistent with Benjamin Franklin famously opining that, “it is better 100 guilty persons should escape than that one innocent person should suffer”—a statement consistent with the Blackstone ratio that “it is better that ten guilty persons escape than that one innocent suffer.”

That said, approximately half of the states either reject abatement or significantly limit its application. Connecticut—Hernandez’s home state—is among the states generally rejecting it. On several occasions the Connecticut Supreme Court has ruled that the death of a convicted defendant who had appeals pending does not compel the abatement of the convictions. Instead, the defendant’s pending appeal is merely dismissed.

Massachusetts, however, does recognize abatement and that is good news for Hernandez’s estate. If Hernandez’s convictions are vacated, those convictions can no longer be used in civil lawsuits filed by the families of Hernandez’s victims and his alleged victims. Family members of Lloyd, de Abreu and Furtado all have wrongful death claims pending against Hernandez’s estate. In a wrongful death lawsuit, the victim’s family must prove by a preponderance of evidence (more likely than not) that the defendant’s negligence caused the killing of the family member. The burden in a wrongful death lawsuit is far lower than in a criminal prosecution, where guilt beyond a reasonable doubt is required. If, as prosecutors demand, abatement is denied, Hernandez’s conviction in murdering Lloyd would make it nearly certain for Lloyd’s mother, Ursula Ward, to prevail. Also, even though Hernandez was not convicted of murdering de Abreu and Furtado, some of the evidence from that prosecution would be admissible in a civil trial if abatement does not occur.

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Abatement would also impact any lawsuits filed by Hernandez’s family members, including his four-year-old daughter, Avielle Janelle Hernandez. As I explained in other SI.com articles, Hernandez’s family could sue the prison and insist that it violated Hernandez’s Fourteenth Amendment due process rights as well as his right under the Eighth Amendment to not suffer cruel and unusual punishment. The family could also sue the NFL for wrongful death, a lawsuit that would be aided if Hernandez’s brain reveals the presence of Chronic Traumatic Encephalopathy (CTE). Defendants in those lawsuits would not be able to cite Hernandez’s convictions.

Prosecutors face an uphill battle in trying to block abatement of Hernandez’s convictions

In their brief, the Bristol County prosecutors stress that while abatement is customary practice in Massachusetts, some Massachusetts courts have declined to adopt it. Further, the prosecutors insist, neither the U.S. Constitution nor Massachusetts constitution compels Massachusetts courts to apply abatement, and no statute requires it, either. As portrayed by the prosecutors, the practice of Massachusetts courts recognizing abatement reflects both inconsistent precedent and unpersuasive reasoning.

Along those lines, the prosecutors insist that “only a few Massachusetts appellate decisions” have addressed abatement and that none has offered a compelling reason for its application. The main reason offered by courts in adopting abatement is simply that other courts in the past have done so. The brief also highlights how other states’ courts, “reviewing the practice through the lens of modern sensibilities,” have rejected abatement. The brief cites recent decisions from Montana and New York that found abatement doesn’t strike a sensible balance between the rights of victims and convicted defendants. Abatement also arguably undermines the role of the jury and is particularly controversial when the defendant took his or her own life.

A challenge for the Bristol County prosecutors is that courts normally adhere to precedent. Courts are expected to do so under the principle of stare decisis, which holds that courts should honor the appellate courts’ decisions that resolve legal questions faced in subsequent cases. The Massachusetts Supreme Court has recognized abatement as appropriate. For instance in Commonwealth v. Eisen, the Court plainly wrote, “When a criminal defendant dies pending his appeal, normally the judgment should be vacated and the indictment dismissed.” Massachusetts courts have usually recognized abatement, including involving other notable defendants. For instance, courts abated the child abuse convictions of defrocked priest John Geoghan, who was murdered in the Souza-Baranowski Correctional Center.

On the other hand, and as the prosecutors’ highlight, two months ago the Massachusetts Supreme Judicial Court declined to abate the convictions of a deceased defendant who had been convicted on walking on a railroad track and possession of burglarious instruments charges. In Commonwealth v. Squires, the Court held that “when a defendant dies after an application for further appellate review has been granted, but not argued, the practice has been to vacate the order granting further appellate review, rather than abate the proceeding.” In other words, if a convicted defendant dies after an appellate court has granted review but before the appeal is argued, the appellate court will not abate the convictions and will instead review the appeal of the deceased convict.

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Here, Hernandez’s appeal on first-degree murder was automatically appealed. It is possible that a court might reason that because the appeal is automatic, the appellate review has already been granted. And since the appeal hadn’t been argued prior to Hernandez’s death, the appellate court might review the merits of the appeal. Such an interpretation would be an encouraging development for prosecutors and Ursula Ward, the mother of Odin Lloyd. Hernandez’s conviction for murder would remain on the books. His other convictions, however, might still be abated, which would be disappointing news for the families of de Abreu and Furtado.

It will be months, if not years, before the issue of abatement in Hernandez’s death is resolved. Given that the potential abatement would impact several pending and possible wrongful death lawsuits and other litigation stemming from Hernandez’s death, it could be quite some time before the legal aftermath of Aaron Hernandez’s life and death reaches a conclusion.

Michael McCann is SI’s legal analyst. He is also an attorney and a tenured law professor at the University of New Hampshire School of Law.

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