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Supreme Judicial Court Thwarts Former Patriot's Attempted Use of Abatement ab Initio Doctrine

Jouret LLC March 13, 2019

“Abatement ab initio” is a common-law doctrine providing “that the death of a defendant ‘pending direct review of a criminal conviction abates not only the appeal but also all proceedings had in the prosecution from its inception.’” The doctrine was used by lawyers for Ken Lay (the former CEO of Enron) to vacate his conviction when he died with an appeal pending. The Supreme Judicial Court of Massachusetts, in reviewing this doctrine in the case of Aaron Hernandez, former New England “Patriot” convicted of murder in the first degree at the trial court and who later died in prison while his appeal was pending, declared it inapplicable in today’s society. The court, quoting a New York court, reasoned that the purposes behind the initial adoption of the doctrine was “lost in antiquity.” The court further stated that going forward, such cases shall be handled by: (1) dismissing the appeal as moot; and (2) noting “in the trial court record that the conviction removed the defendant’s presumption of innocence but the conviction was appealed and neither affirmed nor reversed because the defendant died.”

As a result of the SJC’s ruling, Hernandez’s “notice of appeal is dismissed as moot and we instruct the trial court to record a notation stating that the defendant's convictions of murder in the first degree, unlawful possession of a firearm, and unlawful possession of ammunition removed the defendant's presumption of innocence as to those charges, but that the convictions were appealed and were neither affirmed nor reversed on appeal because the defendant died while the appeal was pending and the appeal was dismissed. “ The impact of the ruling on the Hernandez estate is not immediately clear, but the SJC did note that where a “defendant commits suicide to prevent the application of the doctrine and thereby collaterally to benefit surviving family members, heirs, or other beneficiaries,” this new rule will apply. That may impact the Hernandez estate’s rights to collect monies that may be owed in connection with Hernandez’s employment relationship with the NFL.