About two years later, Hernandez died while awaiting assembly of the record for his appeal. There were suggestions that the cause of death was suicide and that Hernandez may have been aware of the doctrine of abatement ab initio and its potential financial implications for his family.

Hernandez's appellate counsel filed a suggestion of death and motion to abate in the trial court, requesting that the court dismiss Hernandez's appeal, vacate his convictions, and dismiss the underlying indictments. Prosecutors opposed the latter two requests.

After a hearing, the trial court concluded that it was bound by precedent from the Supreme Judicial Court of Massachusetts to apply the doctrine of abatement ab initio. Consequently, the trial court allowed defense counsel's motion, dismissed Hernandez's notice of appeal, vacated his convictions, and dismissed the indictments.

The case reached the Supreme Judicial Court of Massachusetts.

The Decision by the Massachusetts Supreme Judicial Court

The court reversed, concluding that the doctrine of abatement ab initio was “outdated and no longer consonant with the circumstances of contemporary life, if, in fact, it ever was.”

Rather, the court ruled, when a defendant died irrespective of cause, while a direct appeal as of right challenging the defendant's conviction was pending, the proper course was “to dismiss the appeal as moot and note in the trial court record that the conviction removed the defendant's presumption of innocence, but that the conviction was appealed and neither affirmed nor reversed because the defendant died.”

In its decision, the court discussed the two reasons that historically have been advanced in favor of abatement ab initio: the “finality principle” and the “punishment principle.”

The finality principle, the court continued, rests on the premise that a trial and appeal are essential parts of the justice system and that a conviction should not stand until a defendant has had the opportunity to pursue both. The court reasoned that the finality principle “remains fundamental to our system of justice,” but it observed that “other well-settled principles regarding the effect of a conviction and the scope of the right to an appeal” made it clear that it was “not altogether inviolable.”

The court then turned to the punishment principle, observing that it “focuses on the precept that the criminal justice system exists primarily to punish and cannot effectively punish one who has died.” Moreover, the court continued, the punishment principle can help to avoid visiting “punishment” on the innocent family, heirs, or beneficiaries of the deceased defendant.

The court then pointed out the “the potential impact abatement ab initio can have on collateral matters, including undermining the potential application of issue preclusion.” It cited to a 20-year-old Wisconsin Supreme Court decision, State v. McDonald, 424 N.W.2d 411 (Wisc. 1988), for the point that if a murder conviction stands, it can prevent the defendant from, among other things, receiving money from the victim's estate under the state intestacy statute, inheriting under the victim's will, receiving benefits from a life insurance policy on the life of victim, and receiving the victim's interest jointly held property.

The court also highlighted a 2013 Brooklyn Law Review article whose title is clear: Bierer, The Importance of Being Earned: How Abatement After Death Collaterally Harms Insurers, Families, and Society at Large, 78 Brook. L. Rev. 1698 (2013).

Where a conviction stands, the court reasoned, a party to civil action against the convicted defendant may invoke the doctrine of collateral estoppel to preclude relitigation of issues decided in the criminal prosecution, preventing the person “charged with the unlawful killing of the decedent from taking from the decedent's estate through its distribution and disposition, including property held between the person charged and the decedent in joint tenancy or by tenancy in the entirety.”

The court added that it also has been suggested that other surviving third parties with interests in the outcome of an appeal could conceivably include, among others, next-of-kin, an heir, a creditor, or somebody else who shared the interest of the deceased defendant's estate.

Therefore, the court held, it would “no longer follow the doctrine when a defendant dies during the pendency of a direct appeal as of right challenging a conviction.” Instead, the court decided, “upon the death of the defendant, the appeal shall be dismissed as moot and the trial court shall be instructed to place in the record a notation stating that the defendant's conviction removed the defendant's presumption of innocence, but that the conviction was appealed and it was neither affirmed nor reversed on appeal because the defendant died while the appeal was pending and the appeal was dismissed.”

The court concluded by applying its new approach in this case, and it directed the trial court to record a notation stating that Hernandez's convictions of murder in the first degree, unlawful possession of a firearm, and unlawful possession of ammunition removed his presumption of innocence as to those charges, but that the convictions were appealed and were neither affirmed nor reversed on appeal because he died while the appeal was pending and the appeal was dismissed.

The case is Commonwealth v. Hernandez, No. SJC-12501 (Mass. March 13, 2019). Attorneys involved include: Thomas M. Quinn, III, Assistant District Attorney (Shoshana Stern, Assistant District Attorney, also present) for the Commonwealth. John M. Thompson (Linda J. Thompson also present) for the defendant. Maura Healey, Attorney General, & Eric A. Haskell, Assistant Attorney General, for the Attorney General & another, amici curiae, submitted a brief.