The jail suicide of the former New England Patriots’ player triggered a request for vacating his murder conviction—which was under appeal when he died. That’s perfectly within the law, but does it represent justice for his victim?
In April 2015, former New England Patriot Aaron Hernandez was convicted of murder for the killing of Odin L. Lloyd and sentenced to life without parole. He appealed that conviction; Lloyd’s mother filed a wrongful death civil lawsuit against him.
Two years later and while those cases were pending, Hernandez again faced murder charges for the deaths of two men in a drive-by shooting outside a Boston nightclub. But this time, the jury acquitted him on most of the charges, although it did convict him of illegal possession of a firearm.
However, just five days after the acquittal, Hernandez was found dead in his prison cell, having committed suicide by hanging himself with a sheet.
You might think that the Lloyd family would feel some relief or sense of closure with the death of Hernandez. But due to an unusual legal rule called “abatement ab initio,” his conviction for Lloyd’s murder may be vacated because his appeal was still pending when he died—and voiding that conviction will impact the still-open wrongful death lawsuit.
“Abatement ab initio” is Latin and means to roll back a process to its beginning. The idea is that an appeal is a critical component of the criminal justice system because, among other things, it gives the public confidence that a conviction is valid.
If an appeal of a conviction is undecided when a defendant dies, there’s a chance that the verdict wouldn’t have stood. Thus, the conviction is voided and the defendant is treated as he was at the start of the criminal process: as if he’d never been charged, much less convicted.
Abatement of Hernandez’s conviction will mean that the Lloyd family won’t be able to rely on that conviction in the wrongful death lawsuit as proof that Hernandez was responsible for Lloyd’s death. They’ll have to present the evidence that established that conviction all over again, including having the witnesses re-testify.
The Hernandez case is hardly the first high-profile conviction vacated due to abatement.
For example, in 2006, the conviction of former Enron chairman Kenneth Lay on federal securities, conspiracy and fraud charges was voided after his death because his appeal was still pending.
Because Lay’s conviction was nullified, the government could no longer seize his estate’s assets to compensate the victims of his crimes. Instead, the government was forced to file a civil forfeiture action against Lay’s estate, seeking almost $13 million.
Both the Hernandez and Lay cases illustrate an essential flaw with abatement. The concept completely ignores the interests and rights of the victims of the crimes underlying the vacated convictions.
Why is the reputation of a dead man more important than the rights of those whom he was convicted of victimizing?
The impact of abatement on victims is very clear in a case like Lay’s, where the victims suffered easily quantifiable financial harm for which they deserve restitution. Victims in such cases may be able to get restitution through the civil courts, but they won’t be able to rely on proof of the conviction to make their cases.
Abatement’s impact is harder to quantify in a case like Hernandez’s but it nonetheless affects victims and their families. As the Supreme Court of Idaho explained in State v. Korsen, “Abatement of the conviction would deny the victim of the fairness, respect and dignity guaranteed by these laws by preventing the finality and closure they are designed to provide.”
The federal Crime Victims’ Rights Act gives victims specific, enforceable rights, including the right to be treated with “fairness and with respect for the victim’s dignity and privacy” as well as the right to “full and timely restitution as provided in law.”
Similarly, all states give crime victims certain rights. Most enshrine these rights in their constitutions. The continued use of abatement flies in the face of this national recognition of such rights.
As a bulletin from the National Crime Victim Law Institute says, “The death of a defendant, found guilty in a court of law, should not erase the rights of the victims left behind.”
Yes, the right to appeal one’s conviction is very important, as is the presumption of innocence. And that principle only applies until a defendant has been found guilty by a judge or jury. The presumption of innocence disappears upon conviction.
Abatement essentially extends the presumption of innocence until confirmation of the conviction on appeal and, practically speaking, presumes that the defendant would have prevailed on appeal had he lived.
However, it’s not logical or reasonable to presume that every dead defendant would have been vindicated by an appeals court.
For example, Lay’s co-defendant Jeffrey K. Skilling was convicted of similar charges, which were affirmed on appeal. As a result, Skilling was sentenced to 168 months in prison and ordered to forfeit approximately $42 million to be applied toward restitution for the victims of the fraud at Enron.
According to Bureau of Justice Statistics for criminal cases in state appeals courts in 2010, of the cases that were reviewed on the merits on appeal, 81% of the convictions were affirmed. In Massachusetts, where the Hernandez case is pending, of the 709 criminal cases decided by the appeals court in 2015, 603 (85%) affirmed the lower court’s decision.
Thus, most defendants’ convictions are not overturned on appeal, so why are we giving dead defendants the benefit of the doubt?
It’s also important to remember that, under abatement, the strength of the evidence against the defendant and the likelihood of his prevailing on appeal are irrelevant. The conviction is vacated as a matter of procedure and without any consideration of the merits of the defendant’s case.
For that reason, I believe abatement undermines the criminal justice system. No conviction should be overturned automatically without any regard for—or assessment of— the evidence or merits of the case.
Of course, the way around that concern would be to let the defendant’s appeal proceed after his death.
In fact, some states take this approach, allowing another individual, such as a family member, to substitute for the defendant for appeals purposes. But doing so is a waste of limited court resources. And where does it end—how many levels of appeal are enough? Must we let the case go all the way to the U.S. Supreme Court before letting the conviction stand?
A key difference between the Lay and Hernandez cases is that Lay died from a heart attack, while Hernandez killed himself. You could argue that when Hernandez chose to end his life knowing that his appeal was still pending, he essentially waived that appeal.
That argument is one that prosecutors in Massachusetts are making in challenging the application for abatement in the Hernandez case. They argued that dismissing the conviction would reward Hernandez for his “conscious, deliberate and voluntary act” of committing suicide.
Prosecutors also argued that because Hernandez was imprisoned for life without parole, his death means his sentence has now been served in its entirety. So arguments against “punishing” a dead man by letting his conviction stand are baseless.
Not to be crass, but once a defendant is dead, the status of his conviction doesn’t matter to him anymore.
That’s why the state of Connecticut dismisses the pending appeal of a deceased defendant on the grounds that it’s moot since the defendant is no longer alive and so wouldn’t benefit should the conviction be overturned. Moreover, if a new trial was granted on appeal, it couldn’t proceed because the defendant can no longer participate in his defense.
Some commentators point to the potential unfair impact of letting the conviction stand on the defendant’s estate or family. Although it’s not unreasonable to consider those interests, they shouldn’t outweigh the interests of the criminal justice system as a whole or of the victims of the crime.
Bottom line: Abatement doesn’t further justice. The concept is innocent until proven guilty—not until proven guilty and confirmed on appeal.
Robin L. Barton, a legal journalist based in Brooklyn, NY, is a former assistant district attorney in the Manhattan District Attorney’s Office and a regular blogger for The Crime Report. She welcomes readers’ comments.