Martin Healy, the chief legal counsel for the Massachusetts Bar Association, explains that the state observes abatement ab initio, which in criminal proceedings is applied if a defendant dies before all of their appeals have been resolved.
Under abatement ab initio (the latter phrase meaning “from the beginning”), the defendant’s case returns to its initial phase and the slate is wiped clean.
“It’s as if the trial has never happened, and it’s as if the indictment has never happened,” says Healy, who is unconnected to the case.
So “under the eyes of the law, Hernandez has died an innocent man,” Healy continues. “He has not been convicted of any crime in Massachusetts.”
He was set to remain in prison without parole, however, after being convicted of murdering Odin Lloyd in 2013.
Healy says Hernandez’s attorney will need to file brief paperwork requesting the court apply the doctrine of abatement ab initio now that he has died. John M. Thompson, who was representing Hernandez in his appeal, told the Boston Globe on Wednesday that he will do just that once a death certificate is available.
Thompson did not immediately return a message seeking comment.
The request cannot be challenged, Healy says. There will be no arguments about it before a judge. (A spokesman for the Bristol County, Massachusetts, District Attorney, who prosecuted Hernandez for murdering Lloyd, did not immediately return a request for comment.)
“Time will judge Mr. Hernandez and his actions,” Healy says. “In terms of the legality of it, the criminal matter has now been basically nullified.”
How the Doctrine Works
Healy says abatement ab initio has its roots in common law brought over from England.
“When it was thought of back hundreds of years ago, there was a focus more on defendants’ rights than victim rights,” he says.
According to Healy, abatement was seen as a form of protection for defendants even after death, so that they would not be unfairly tarnished by a conviction that they would have continued to fight on appeal, had they not died.
The doctrine is largely unknown even to attorneys, but its use is controversial, Healy says. “There’s a lot of debate nationally,” he says, adding, “It remains one of the few legal principles that can cause a lot of confusion and can cause a lot of unjust results.”
By “unjust,” he is referring to critics who argue that abatement ab initio is anti-victim — rescinding the justice they had already received.
The doctrine is not universally applied, either: While Healy says several other jurisdictions in the U.S. apply it as Massachusetts does, some states do not recognize it at all; and of the states that do apply it, they do not apply it all the same way.
Healy says he expects there to be renewed focus on the doctrine, given its use in the Hernandez case.
“We’re dealing with a very archaic legal principle vs. modern times,” which have rightfully emphasized victims’ rights, he says.
That debate won’t have an effect on Hernandez, however.
“For all intents and purposes,” Healy says. “The matter died with [him] this morning.”