Some top state judges signaled an interest Thursday in jettisoning the practice of wiping out criminal convictions if a defendant dies before an appeal is heard, an issue the court was forced to confront after the suicide of former New England Patriot Aaron J. Hernandez.
During an hourlong hearing in the historic John Adams Courthouse in Boston, six justices peppered Bristol District Attorney Thomas M. Quinn III over his belief that Hernandez’s first-degree murder conviction for murdering Odin L. Lloyd should remain intact.
The members of the Supreme Judicial Court were equally intense as they quizzed Springfield attorney John M. Thompson, who was appointed to handle Hernandez’s appeal a short time before Hernandez killed himself in state prison on April 19, 2017.
Thompson told the judges he represented “the spirit of Aaron Hernandez.” He urged the justices to keep the status quo, arguing that the criminal justice system is concerned solely with the defendant, not victims, their relatives, or jurors.
“There is no basis for changing this rule,’’ Thompson told the justices.
Chief Justice Ralph D. Gants and Justice David Lowy in comments from the bench, suggested they were interested in revamping the existing practice.
“There is a lot to this doctrine that hasn’t been developed in our jurisprudence,’’ Lowy said from the bench. “As far as something that is embedded in our system of justice . . . this is not really one of those examples.”
He said that prior rulings by the SJC were very sparse. “I don’t think we’ve gotten past three paragraphs on this issue,’’ Lowy said.
At issue is a seldom-used common law principle known by the Latin phrase “ab initio” where judges order the deletion of convictions if a defendant dies before his or her trial is reviewed by an appellate court. The rule has been applied to Hernandez, Brookline women’s clinic killer John C. Salvi III, and former Roman Catholic priest and convicted molester John J. Geoghan.
In urging the court to change, Quinn pointed out the federal rule is the same as the Massachusetts one. That means, he said, James “Whitey” Bulger’s conviction for murdering 11 people would have been vacated by his murder, except that a federal appeals court ruled his trial was fair.
“The practice of wiping out a jury verdict like it never occurred is not fair or equitable,’’ said Quinn, who took the rare step of personally arguing the case before the SJC. “Just to snap your finger and have that go away because the defendant died — it’s not fair.”
Moreover, by killing himself Hernandez is returned to the legal status of a man not even charged with a crime — instead of the man who was sentenced to life without parole following a three-month trial, Quinn said.
“It’s fundamentally unfair to think a person could obtain in death what they could not obtain in life,’’ Quinn said.
The two newest justices, who are among the five on the court appointed by Governor Charlie Baker, were the most active during the oral argument that was attended by Ursula Ward, the mother of Lloyd, whom Hernandez was convicted of killing in 2013.
Justice Scott L. Kafker and Justice Elspeth B. Cypher repeatedly suggested new approaches that might be used, including what lawyers described as the practice followed in Alabama where the conviction stands and a note is added to court records showing that the appeal was not completed.
Cypher also referred to the federal conviction of Ken Lay, a Texas energy executive who fleeced his employees out of their savings but died before appeal. That meant, Cypher said, the employees struggled when they tried to get their money back in civil courts.
“There are practical consequences, too,’’ Cypher noted. “Ken Lay died and that [conviction] was abated. Some of the victims did not get compensated because of that. That’s the wrong thing to do.”
A decision by the SJC is not expected for several weeks. Justice Barbara A. Lenk is not participating in this case.