With the discussion surrounding Aaron Hernandez’s conviction, acquittals, and suicide, are you wondering why there is also a discussion of abatement? Though not necessarily a new legal development, abatement could allow Hernandez’s conviction to be avoided. Read on for a quick summary.

What is abatement ab initio (“abatement”)?

In Massachusetts as well as in a number of states, the concept of abatement by death is the notion that if a defendant dies while appealing their conviction, their conviction is vacated. The conviction may not stand if the accused dies before their appeals are exhausted.

In Massachusetts, a first-degree murder conviction comes with an automatic appeal to the Supreme Judicial Court (SJC), the highest court in Massachusetts. Hernandez’s conviction for the murder of Odin Lloyd was proceeding within that appeals process when Hernandez died.  Thus, abatement could mean that Hernandez‘s conviction for the murder of Lloyd is vacated.  

What is the rationale for abatement?

Essentially, the reason for abatement is to ensure justice in securing convictions. With appeals occurring automatically in the case of first-degree murder in Massachusetts, appeals are considered part of the conviction process rather than a separate component. Abatement confirms that belief.

Could abatement not occur?

It seems that the SJC will dismiss the conviction and indictment unless there are novel or unique issues to warrant the abatement to not occur. See Commonwealth v. Latour, 397 Mass. 1007 (1986); Commonwealth v. Barrows, 435 Mass. 1011 (2002). The family of Lloyd in particular could petition the court to not vacate the conviction and keep the appeal going.

Has abatement occurred in other cases?

Yes. Notably, abatement occurred in the case of John C. Salvi. Salvi was found guilty of two counts of first-degree murder and five counts of armed assault with intent to murder, when he started shooting at two reproductive health clinics in Brookline, Massachusetts in 1996. Salvi committed suicide in prison during his appeal, and as such, the sentencing judge overturned Salvi’s conviction.

Abatement has also occurred at the federal level. In particular is the case against Kenneth Lay of Enron in 2006Lay was convicted of fraud and conspiracy, but his convictions were dismissed when Lay died of a heart attack during his pending appeal.

UPDATE – May 9, 2017 – On Tuesday, May 9, 2017,  Judge E. Susan Garsh of the Bristol County Superior Court (the presiding judge over the murder trial of Odin Lloyd) issued an order to vacate Aaron Hernandez’s 2015 conviction for the murder of Odin Lloyd. The Bristol County District Attorney (Thomas Quinn) may appeal this decision; the Commonwealth argued that vacating Hernandez’s conviction would reward Hernandez’s suicide and that the abatement rule is archaic.

UPDATE – October 23, 2017 – Following the Bristol County Superior Court’s order to vacate Aaron Hernandez’s 2015 murder conviction, Bristol County District Attorney (Thomas Quinn) petitioned a single justice of the Supreme Judicial Court of Massachusetts (Justice David A. Lowy) to reinstate the first-degree murder conviction.  On Friday, October 20, 2017, Justice Lowy denied the request to reinstate Hernandez’s conviction for the first-degree murder of Odin Lloyd.  The Commonwealth argued that it would be unjust that Hernandez would be considered innocent, and that abatement of Hernandez’s conviction would undermine the public’s trust in jury verdicts.  Justice Lowy wrote that the requested relief from the single justice is only exercised in exceptional circumstances, and stated that the Commonwealth had the option to appeal to the full Supreme Judicial Court.  See Justice Lowy’s decision and the full appellate docket here.

UPDATE – January 17, 2018 – On October 30, 2017, the Commonwealth filed a motion for reconsideration of Justice David A. Lowy’s decision.  On January 16, 2018, Justice Lowy affirmed his original decision.  See Justice Lowy’s decision and the full appellate docket here.

UPDATE – January 31, 2018 – In January of 2018, a proposed bill in the name of Odin Lloyd (House Bill 3835, “An Act Relative to Odin Lloyd”) was filed with the Massachusetts legislature that will prevent any inmate from vacating a conviction through suicide, like the situation of Aaron Hernandez.  The bill was presented by State Representative Evandro C. Carvalho.  Representative Carvalho stated that abatement is outdated and needs to be resolved.  The bill itself states: “The death of a defendant due to suicide who is convicted of a criminal offense shall automatically forfeit any and all rights to appeal that conviction.”  On January 30, 2018, Lloyd’s mother (Ursula Ward) testified about the bill to the Joint Committee on the Judiciary at the Massachusetts State House.  However, unless the state legislature passes a version of the bill that is retroactive, Hernandez’s conviction would remain vacated.  Lloyd’s mother still has a wrongful death lawsuit pending against Hernandez’s estate.

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