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Prosecutors want to keep Hernandez’s conviction intact

Former Patriots tight end Aaron Hernandez was brought into court for his arraignment on murder charges in 2013.
Former Patriots tight end Aaron Hernandez was brought into court for his arraignment on murder charges in 2013. John Tlumacki/Globe Staff/File

Aaron J. Hernandez completed his sentence and abandoned his long-shot appeal the moment he hanged himself in his prison cell last month, Bristol County prosecutors argued Monday, and his decision to kill himself should not allow him to shed in death the label he wore in life: convicted murderer.

Citing case law from Massachusetts and state and federal courts around the country, Bristol District Attorney Thomas M. Quinn III’s office said Hernandez deserves no change in his legal status — in part because he put himself out of the reach of justice by choosing to end his life in his cell at the Souza-Baranowski Correctional Center.


But in challenging the longstanding Massachusetts practice of vacating the convictions of those who die before their appeals are decided — a process called abatement ab initio — prosecutors appear to be running counter to state legal history.

Convictions for some of the state’s most ghastly crimes have been vacated under similar circumstances. And while some states have backed away from the practice, advocates say it’s necessary to protect the right to appeal convictions.

Hernandez was convicted of first-degree murder for shooting Odin L. Lloyd in a North Attleborough industrial park. He was found dead in his cell April 19, with his appeal still in its early stages. Massachusetts courts have held that a person who dies before their direct appeal is decided can regain the legal standing of a person who is only accused of a crime. The former New England Patriots star’s lawyers filed court papers requesting abatement shortly after his death.

In court papers filed Monday, prosecutors argued that Hernandez “should not be allowed to avoid a conviction for the murder of Odin Lloyd by deliberately, consciously and voluntarily taking his own life.” Moreover, prosecutors wrote, Hernandez was imprisoned for life without parole, and his death means the sentence imposed when he was convicted was served.


“The defendant was serving his punishment at the time he took his own life,” prosecutors wrote. “He now has served the entirety of his sentences. ... By his death, he has completed his lawful sentence for his murder conviction, just as death completes the sentence of every murderer in the Commonwealth.’’

Massachusetts cases in which abatement requests for the deceased were denied appear rare.

Monday’s filing cites a March Massachusetts Supreme Judicial Court ruling that denied a motion to vacate the conviction of Steven E. Angier, who died while his appeal was pending.

Angier and another man, John F. Squires III, were convicted of possession of burglarious instruments after a Norwood police officer allegedly found the men walking on commuter rail tracks with tools, flashlights, gloves, and walkie-talkies.

Instead of vacating Angier’s conviction because of his death, the court addressed Angier’s argument for appeal directly — and vacated both men’s convictions, anyway.

In another case, a man convicted of indecent assault and battery died after his direct appeal but before a subsequent appeal. The Supreme Judicial Court declined to vacate the conviction.

Higher profile cases, such as John Geoghan, a priest convicted of sex abuse who was murdered in prison, and self-described neo-Nazi Keith Luke, who killed two in a Brockton rampage and killed himself in prison, resulted in abatement.

There is no clear rule or law on the books dictating how and when to employ abatement ab initio, said David Siegel, a professor and director of the Center for Law and Social Responsibility at New England Law.


“This is something that has developed for well over a century by individual decisions in specific cases,” Siegel said. “It isn’t really established for any particular reason.”

Other courts, prosecutors wrote, have declined to abate convictions in cases of suicide.

“Justice does not require abatement or vacation of a conviction when the defendant himself prevents a review of the merits, whether by suicide, a failure to appeal or a request that an appeal be dismissed,’’ prosecutors wrote.

In a 1988 federal case, a court found that a convict’s “suicide indicates to this Court that he chose to take his life instead of pursuing the appeals procedure that he knew would have been available to him.”

Rosanna Cavallaro, a law professor at Suffolk University who has written about abatement ab initio, said that line of reasoning appears to disregard modern understanding of suicide. Depression and despair — not pragmatic legal maneuvering — drive decisions to take one’s own life, she said.

“Are they going to try to shoehorn that in and say there’s a suicide rule?” she wondered. “I find that troubling.” Though it can be unappetizing, Cavallaro said, “my very strong view is that the rule of abatement is a necessary cost for the genuine respect for the right of appeal.”

Prosecutors wrote that by killing himself, Hernandez might be able to undermine the wrongful death lawsuit filed against his estate by Lloyd’s mother, Ursula Ward. It’s not clear what practical effect an abatement might have on that case.


Douglas K. Sheff, Ward’s lawyer, lauded the challenge to the rule.

“This will tie the system up for a long time needlessly while causing heartbreak and inconsistency,” Sheff said. “It’s a vestige from the 1800s that has been discounted and no longer used in many, many states.”

Hernandez’s court-appointed appellate attorneys, John and Linda Thompson, must file an answer to Quinn’s filing by Thursday. They did not return messages Monday.

Bristol Superior Court Judge E. Susan Garsh will hold a hearing on the issue May 9.

Nestor Ramos can be reached at nestor.ramos@globe.com. Follow him on Twitter @NestorARamos. John R. Ellement can be reached at ellement@globe.com. Follow him on Twitter @JREbosglobe.