COMMONWEALTH OF MASSACHUSETTS
BRISTOL, SS. SUPERIOR COURT

BRCR2013-00983
ss SUPERIOR COURT
FILED

COMMONWEALTH
7
MAY 11 9 201 is.
MARC .1. crimes, ESQ.
AARON HERNANDEZ

MEMORANDUM OF DECISION AND ORDER ON
MOTION TO ABATE PROSECUTION

On April 15, 2015, a jury convicted Hernandez of the ?rst degree murder of Odin Lloyd and
two ?rearms offenses. He ?led a notice of appeal on April 21, 2015.I On April 19, 2017, Hernandez
died at the Souza-Baranowski Correctional Center. His death certi?cate lists the cause of death as
by hanging and the manner of death as suicide. His appellate counsel now moves to abate
the prosecution. The motion seeks that the appeal from the convictions be dismissed, that the
convictions be vacated, and that the underlying indictments be dismissed. The Commonwealth
opposes the motion to abate the convictions and dismiss the indictments; it does not object to
dismissal of the appeal. For the reasons discussed below, the motion to abate is ALLOWED.

DISCUSSION

The long-standing practice in Massachusetts is that if a defendant dies while his conviction
is on direct appeal, the conviction is vacated and the indictment dismissed, thus abating the entire
prosecution as if it never happened. Commonwealth v. Squires, 476 Mass. 703,- 707 (2017);
Commonwealth v. Harris, 379 Mass. 917, 917 (1980); Commonwealth v. Eisen, 368 Mass. 813, 813

(1975). See also Commonwealth v. De La Zerda, 416 Mass. 247, 248 (1993) (citing the many states

 

The record has not yet been fully assembled and, accordingly, the appeal has not been
docketed in the Supreme Judicial Court.

and federal courts that follow this practice).

The Commonwealth ?rst argues that the abatement doctrine ?lacks any identi?able historical
or public policy basis.? To the contrary, abatement has been practiced in federal and state courts
for more than a century. See, List v. 131 US. 396, 396 (1888) (criminal cause
abates upon the death of the accused); Marph v. S_tat_e, 5 Tex. App. 450, 456 (1 879) (when defendant
dies while appeal is pending, prosecution abates in toto).

Moreover, the Supreme Judicial Court has explained that the primary policy served by
abatement is the recognition that, beCause an appeal is an integral part of the system for fairly
adjudicating guilt or innocence, the interests of ustice do not permit a defendant to stand convicted
without resolution of the merits of his appeal. De La Zerda, 416 Mass. at 251.2 The direct appeal
is moot because neither the asserted importance of the legal issues nor any personal interest in the
defendant?s vindication by counsel or the defendant?s family is suf?cient to warrant deciding the
appeal of a dead person. m, 379 Mass. at 917; BE, 3 68 Mass. at 814. The policies supporting
abatement apply in full force in this case, where Hernandez availed himself of the statutory right to
appeal his convictions but died before his appeal was resolved. Cf. De La Zerda, 416 Mass. at 251
(allowing conviction to stand where, at time of his death, defendant had served his sentence and
received direct appellate review of denial of his new trial motion, but Supreme Judicial Court had
accepted his application for further discretionary review).

The Commonwealth is incorrect that the United States Supreme Court has rejected the

practice of abatement. In Durham v. United States, the Supreme Court opined that the lower courts

 

2 In addition, abatement acknowledges the reality that post-conviction relief has become
impossible because the defendant neither can be punished if the conviction stands nor retried if
the conviction is reversed. De La Zerda, 416 Mass. at 250.

2

had adopted the ?correct rule? that death pending direct review abates not only the appeal but the
prosecution from its inception; the court then granted the defendant? 3 pending petition for certiorari,
vacated the judgment and remanded the case with an order to dismiss the indictment. 401 U.S. 481,
483 (1971). Five years later, the Supreme Court reversed Durham with respect to the disposition of
an underlying judgment when a discretionary writ of certiorari is pending at the time of death. See
Dove v. United States, 423 U.S. 325, 325 (1976) (where defendant dies while certiorari review is
pending, Supreme Court will simply dismiss the petition for certiorari, allowing conviction to stand).
Nothing in the two-sentence per curiam decision in Dove suggests that the Supreme Court has
rejected the policy of abatement when a defendant dies during his direct appeal. See United States
v. P_ogue_, 19 F.3d 663, 665 (DC. Cir. 1994) (recognizing that Supreme Court has adopted abatement
policy abating not only appeal but prosecution from its inception in cases of death pending direct
review as have the Second, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh
Circuits).3 See, United States v. Pauline, 625 F.2d 684, 685 (5th Cir. 1980) (interpreting Dove
as applying only to certiorari petitions, not appeals as of right); United States v. Moehlenkamp, 557
F.2d 126, 128 (7th Cir. 1977) (Dove does not change longstanding abatement practice as applied to
appeal as of right); United States v. Bechtel, 547 F.2d 1379, 1380 (9th Cir. 1977) (Dove controls
only disposition of certiorari petitions, not direct review of conviction). See also De La Zerda, 416
Mass. at 249 (citing Dove for proposition that, when a defendant dies after ?ling a certiorari petition,

the Supreme Court dismisses the petition but leaves underlying judgment untouched). Even though

 

3 Each of the Circuit Court decisions cited in Pogue were decided after Dove. Moreover,
after Pogue was decided, the Third Circuit also adopted the abatement practice. See United
States v. Christopher, 273 F.3d 294, 297 (3d Cir. 2001). In addition, the First Circuit follows this
practice. See United States v. Sheehan, 874 F.Supp. 31, 33 (D. Mass. 1994).

 

the Commonwealth is mistaken about the import of Dave, the point is not critical because Dove does
not control how Massachusetts handles cases pending on direct appeal after the death of the
defendant.

The Commonwealth further argues that this Court should follow an emerging trend in other
states to reject abatement based on the need to respect jury verdicts and protect the rights of victims
and their families. See, S_ta_t? v. ELISE, 111 P.3d 130, 134-135 (Idaho 2005) (rejecting
abatement on public policy grounds because it denies victims fairness, respect, dignity and closure
by preventing ?nality of the conviction); ?u_rla_n_d v. S_tat_e, 895 A.2d 1034, 1039-1044 (Md. 2006)
(rejecting abatement because conviction erases presumption of innocence, state has interest in
preserving presumptively valid conviction, and abatement has collateral consequences for
defendant? estate and victims, but allowing estate to elect whether to pursue appeal); v. De_vin,
142 P.3d 599, 605-606 (Wash. 2006) (rejecting abatement because it deprives victims of
compensation required by law and has collateral consequences such as emotional distress, lessened
ability to recover civil judgment, and potential impacts on family court proceedings, but courts not
precluded from deciding a criminal appeal on the merits post-death if ?doing so is warranted?). In
support of its argument, the Commonwealth invokes G.L. c. 258B, 3, ?Rights of Victims and
Witnesses of Crime,? and 18 U.S.C. 3771, ?Crime Victims? Rights.? While this Court recognizes
the harsh emotional and legal effects of abatement on victims and their families, it is constrained to
conclude that victims? rights statutes do not alter the longstanding and controlling practice of
abatement of criminal proceedings. See People v. Robinson, 719 662, 663-664 (111. 1999)
(reversing lower court ruling that abatement does not apply in cases of violent crime based on need

to protect victims).

 

 

Notably, the Supreme Judicial Court considered and explicitly rejected identical public policy
arguments less than one year ago. In Commonwealth v. Keith Luke, the Commonwealth also argued
that the abatement doctrine-lacks a cogent rationale and urged the Supreme Judicial Court to follow
the trend in other states of rejecting abatement in order to vindicate the rights of victims. See
Commonwealth v. Keith Luke, SJC-11629, ?Motion to Dismiss Appeal as Moot and Motion to
Prevent or Forestall Abatement Ab Initio of the Underlying Convictions? (May 29, 2014).4 In its
brief in the Luke case, the Commonwealth relied on much of the same case law and statutes cited
by the Commonwealth in this matter. In an order dated July 21, 2016, the Supreme Judicial Court
vacated Luke? 3 murder, rape, kidnaping, home invasion, armed assault, and ?rearms convictions and
remanded the case for entry of an order dismissing the indictments, stating: ?[n]othing in the
Commonwealth?s submission persuades us to change our longstanding practice in these
circumstances.? Commonwealth v. Keith Luke, SIC-11629 (July 21, 2016). Thus, the Supreme
Judicial Court rejected the precise argument made to this court that public policy concerns warrant
abandonment of the traditional abatement practice. See also S_qu_ir?, 476 Mass. at 707 (recently
af?rming vitality of general practice of abatement). Abatement remains the law in this
Commonwealth, and this Court is compelled to follow binding precedent. See Commonwealth v.
w, 456 Mass. 350, 356 (2010) (decisions of Supreme Judicial Court on all questions of law
are conclusive on trial courts).

Notwithstanding the general practice of abatement, the Supreme Judicial Court has noted
that, in a particular case, ?the interests of justice? may merit a departure from abatement ab initio.

See Sguires, 476 Mass. at 707 (fairness dictated that decedent should have same outcome as co-

 

4 The Commonwealth did not bring the Luke appeal to the attention of this Court.

5

defendant where co-defendant had incorporated by reference arguments made by decedent, thus
requiring SJ to address decedent?s arguments on the merits despite his death). The Commonwealth
argues that waiver and forfeiture principles warrant an exception to abatement when the defendant
commits suicide.5

Waiver is the intentional and voluntary relinquishment of a known statutory or constitutional
right, which can be inferred from a person?s words and conduct under all the circumstances.
Merrimack Mut. Fire Ins. Co. v. Nonaka, 414 Mass. 187, 189-190 (1993); Commonwealth v.
M, 81 Mass App. Ct. 266, 278, rev. den., 461 Mass. 1111 (2012).6

The doctrine of forfeiture by wrongdoing is based on the principle that a defendant should
not be permitted to gain a tactical advantage from his own wrong. Commonwealth v. Szerlong, 457
Mass. 858, 861 (2010), cert. den., 562 U.S. 1230 (2011); Commonwealth v. Sousa, 2016 WL
4006250 at *1 (Mass. App. Ct. Rule 1:28), rev. den., 475 Mass. 1105 (2016). For example, a

defendant forfeits his right to cross-examine a witness if the defendant is involved in or responsible

 

5 In contrast to the argument that the abatement practice should be abandoned, this Court
does have authority to consider the Commonwealth?s alternative arguments that suicide or lack
of probability of success on the merits warrant departures from the abatement doctrine in the
?interests of justice.? The Court disagrees with the argument of defense counsel that the values
that inform the ?interests of justice? calculus have already been ?categorically settled? by the
SJC. There is no indication in the case law or reason to assume that, given a suf?ciently
persuasive reason, an additional ground or grounds to depart from the general practice could not
be found to be in the interests of justice. See also E_ise_n, 368 Mass. at 313 (when a defendant dies
pending his appeal, ?normally? the judgment should be vacated and the indictment dismissed).
The arguments made by the Commonwealth here, other than with respect to outright abrogation
of the abatement ab initio practice, do not appear ever to have been made to the SJ C.

6 See also Commonwealth v. Means, 454 Mass. 81, 89 (2009) (waiver of right to counsel
must be voluntary and informed); Commonwealth v. Tavares, 385 Mass. 140, 144-145 (1982)
(waiver of Miranda rights must be knowing and voluntary); Ciummei v. Commonwealth, 378
Mass. 504, 507 (1979) (waiver of right to jury trial must be freely and knowingly given).

6

for procuring the unavailability of the witness and acted with the intent to make the witness
unavailable. Szerlong, 457 Mass. at 861. Forfeiture by wrongdoing requires a speci?c intent by the
defendant to interfere with the course of ustice. See Commonwealth v. Edwards, 444 Mass. 526,

536, 542, 549 (2005); Scionti, 81 Mass App. Ct. at 278.

 

The Commonwealth maintains that Hernandez?s deliberate, voluntary, and af?rmative act
of ending his own life manifests an intention to abandon his appeal and thus amounts to a waiver of
his right to review or a forfeiture of any claim for abatement of his convictions. See United States
v. m, 654 F. Supp. 1254, 1255 (MD. Pa. 1987) (suicide presents exception to general practice
of abatement, at least where defendant committed suicide before sentencing, it was possible that
defendant would have chosen not to appeal given his suicide statement that he had no faith in the
judicial system and his statement that he did not believe he could succeed in reversing the verdict
upon appeal, it was highly unlikely he would have succeeded on appeal, and ?it de?es common sense
to allow [defendant] to be absolved of criminal liability so carefully arrived at by a jury because he
intentionally took his own life before the appeal process could run?), vacated by United States v.
Em, 855 F.2d 144 (3d Cir. 1988) (dismissing case on standing grounds).7

This Court cannot know why Hernandez may have chosen to end his life and declines to
infer an intent by Hernandez to relinquish his appellate rights or an intent to interfere with the course

of justice from his reported suicide, a tragic act that may have complex and myriad causes. See

 

7 Although the Commonwealth also cites v. McDonald, 405 771,772 (Wis.
App. Ct. 1987) for the proposition that suicide justifies an exception to abatement, that case was
overruled by the Wisconsin Supreme Court. See v. McDonald, 424 411, 414 (Wis.
198 8) (holding that all appeals continue after death and declining to distinguish between suicide
and natural causes because the court should not have to inquire in each case into the
circumstances of defendant?s death).

People v. Robinson, 699 1086, 1095 (111. App. Ct. 1998) (Greiman, ., dissenting in part)
(?the notion of whether the act of suicide changes the effect of [abatement] because it is a ?waiver?
or an escape is too metaphysical to address . . . rev?d, People v. Robinson, 719 662 (Ill.
1999). The Commonwealth?s supplemental ?ling, based in large part upon statements from
unnamed inmates, suggests several possible motives for suicide that are unrelated to the defendant? 5
appeal. Particularly telling is the fact that, according to the Department of Correction?s investigatory
report, inmates were aware of, and some viewed as disrespectful, aradio broadcast that ?brought up
that Hernandez was gay. The report also states that, according to other inmates, Hernandez had
become increasingly spiritual while in prison, and they viewed his suicide as some sort of religious
message. One inmate stated that Hernandez frequently talked with a religious tone and expressed
his belief that, when you die, your soul gets reincarnated. A religious motive and possibly mental
disturbance is re?ected in the note Hernandez allegedly left for his ?ancee, in which he wrote, ?This
was the Supremes, the plan, not mine!? The report states that an inmate, who claimed to
be one of Hernandez?s best friends, said that, after the verdict in the other case, Hernandez had been
talking about the NFL and going back to play ?even if it wasn?t with the Pats,? statements that do
not re?ect the mind-set of a defendant who intended to waive his right of appeal. While the report
does state that Hernandez had recently mentioned to one inmate a rumor that if an inmate has an
open appeal and dies in prison, he is acquitted of the charge and deemed not guilty, there is no
indication that he had been so advised by any attorney. The defendant? 5 arguable awareness of such
a rumor hardly is suf?cient to warrant the inferences the Commonwealth seeks to draw with respect
to the defendant?s speci?c intent.

The case of United States v. Chin, 633 F. Supp. 624, 627-628 (ED. Va. 1 986), rev?d on other

grounds, 848 F.2d 55 (4th Cir. 1988), is not, in fact, based on ?all of the same factors? that are
present here, as the Commonwealth asserts. The District Court in Chin did not rely merely on the
defendant? 3 suicide in carving out an exception to abatement. Rather, there was nothing in the record
of that case that supported a conclusion that counsel for the defendant had either been requested or
authorized to take an appeal. The defendant committed suicide before judgment entered. Further,
the record justi?ed a conclusion that the defendant did not intend to appeal because he wrote to his
wife that he had decided not to appeal and that his decision had made him feel ?extremely tranquil.?
633 F. Supp. at 627-628.

Given the mental health implications of the act of suicide, where, as here, a defendant has
- ?led a Notice of Appeal, it would not be in the interests of justice to depart from the practice of 
abatement because the death may have been by suicide. A defendant may lack the capacity to make
a voluntary choice whether or not to live. In many cases, circumstances such as mental illness, drug
or alcohol use, or other impairment may negate an intentional and voluntary waiver of the right to
appeal or an intent to frustrate justice. Cf. Commonwealth v. Bishop, 461 Mas. 5 86, 599-600 (2012)
(mental illness, mental impairment, intoxication and consumption of drugs each may affect capacity
to form speci?c intent); Commonwealth v. QM, 30 Mass. App. Ct. 57, 60 n. 1, rev. den., 409
Mass. 1104 (1991) (drugs, intoxication or mental impairment may negate defendant?s ability to
appreciate meaning and consequences of his own conduct). Therefore, an evidentiary inquiry would
have to be held into the circumstances surrounding each defendant?s purported suicide to attempt

to determine if it actually was a suicide should that be contested,8 if the defendant had the mental

 

3 The death certi?cate, at best, is prima facie evidence of the cause of death. G.L. 46, 
19.

capacity to make a voluntary choice whether or not to live, and the factors or factor that motivated
the suicide. If the decision ?whether to abate a conviction ab initio [depends] upon whether the
defendant died involuntarily or took his or her own life, we necessarily open the door to an
exhaustive examination of the circumstances of death in most cases.? State v. McDonald, 405
at 773 -774 (Sundby, J. concurring). Neither public policy nor common sense supports such
an evidentiary inquiry.

In the View of this Court, the waiver and forfeiture doctrines simply have no application to
the issue of the abatement of a conviction. See People v. Matteson. 75 745, 747 (N .Y. 1989)
(rejecting contention that suicide should be deemed a waiver or forfeiture of right to appeal); 
St_ate_s_ v. M, 718 F.2d 894, 896 (9th Cir. 1983) (rejecting argument that suicide is the ?ultimate
waiver?). The interests of ustice do not warrant a departure from the doctrine of abatement because
Hernandez may have committed suicide under the theory that suicide constitutes waiver of the right
to appeal or the theory that suicide constitutes forfeiture by wrongdoing.

Finally, the Commonwealth argues that the interests of justice warrant not abating
Hemandez?s convictions because he had a negligible probability of success on appeal. See 
v. m, 654 F. Supp. at 1255 (declining to abate conviction of defendant who committed
suicide, in part based on conclusion that there were no grounds whatsoever on which defendant could
hope to succeed on appeal, and defendant stated he did not believe his conviction would be
reversed); United States v. Chin, 633 F. Supp. at 628 (declining to abate conviction of defendant who
committed suicide, in part based on court?s determination that the record in the case did not re?ect

likely success on appeal where defendant took stand and completely confessed and, after consulting

10

with attorneys, decided that his appellate arguments were not strong).9 None of the Massachusetts
cases discussing abatement hint that the merits of the appeal might be a relevant factor. See 
?elder, 416 Mass. at 251. In any event, the defendant in this case had not yet ?led a motion for a new
trial or appellate briefs before his death, and this Court cannot speculate as to the potential grounds
he may have raised to challenge his convictions.

Our long-standing abatement doctrine requires that where, as here, the defendant is deprived
of his statutory right of appeal due to death, whether by his own hand or otherwise, the interests of
justice do not permit him to stand convicted because an appeal is integral to a fair adjudication of
guilt or innocence. Accordingly, there being no reason to recognize an exception in this case in the
interests of justice, this Court has no choice but to abate the proceedings in this case ab infrio by
vacating Hernandez?s convictions and dismissing the charges against him and his appeal.

ORDER

For the foregoing reasons, it is ORDERED that the Motion To Abate Prosecution be and
hereby is ALLOWED. It is further ORDERED that the murder, unlawful possession of a ?rearm,
and unlawful possession of ammunition convictions be VACATED, that Indictments Nos. 2013-

00983-1, 2, and 6 be DISMISSED, and that the Notice of Appeal be DISMISSED.

?w?az

E. Susan Garsh
Justice of the Superior Court

 

DATED: May 9, 2017

 

9As noted supra, Dwyer was vacated and him was reversed on appeal.

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