In Commonwealth v. Hernandez the Supreme Judicial Court of Massachusetts (SJC) decided it will no longer follow  “the common-law doctrine of abatement ab initio, whereby, as was the case here, a criminal conviction is vacated and the indictment is dismissed after the defendant dies while his direct appeal as of right challenging that conviction
is in process.”

In this high profile case, the defendant was convicted of first degree murder. Two years later, he “died while awaiting assembly of the record for his appeal. The defendant’s appellate counsel filed a suggestion of death and motion to abate in the trial court, requesting that the judge dismiss the defendant’s appeal, vacate his convictions, and dismiss the underlying indictments.”

The Superior Court judge allowed the motion and the Commonwealth appealed the decision.  The SJC reversed the judge’s ruling, and “concluded that the doctrine of abatement, ab initio is outdated and no longer consonant with the circumstances of contemporary life, if, in fact, it ever was. Rather, when a defendant dies irrespective of cause, while his direct appeal …is pending, the proper course is 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.” The Court noted “the two reasons advanced in favor of abatement ab initio”: (1) “that a conviction should not stand until a defendant has had the opportunity to pursue” an appeal, and (2) “‘that the criminal justice system exists primarily to punish and cannot effectively punish one who has died.’”  The Court’s view is that these principles do not justify preserving the abatement ab initio in Massachusetts. The Court stated that “the doctrine has not been a long-standing or historic staple of Massachusetts common law.”

Although “the Federal courts apply the doctrine … as of right when a defendant dies during the pendency of an appeal,” only “eighteen States and the District of Columbia apply the doctrine.” “Many other jurisdictions have … in recent years rejected the doctrine and followed alternative approaches.” “Some have opted to allow the appeal to proceed, although most limit the issues that can be considered. Others have opted not to allow the appeal to proceed and … the underlying conviction and any related fines and restitution orders remain fully or partially intact. Still others follow an approach whereby … the appeal can continue if a motion to substitute a new party is made either by a representative of the defendant’s estate, the defendant’s attorney of record, the State, or another party and, in the absence of such a motion, either the appeal is dismissed and the conviction stands or the appeal, conviction, and indictment are abated. The Commonwealth urges us to adopt this ‘substitution’ approach or, in the alternative, the so-called ‘Alabama rule,’ which provides that, when an appellate court abates an appeal upon the death of the defendant, … it ‘shall instruct the trial court to place in the record a notation stating that the fact of the defendant’s conviction removed the presumption of the defendant’s innocence, but that the conviction was appealed and it was neither affirmed nor reversed on appeal because the defendant died while the appeal of the conviction was pending and the appeal was dismissed.’” In “rejecting the substitution approach advocated by the Commonwealth,” the Court reasoned that “beyond the State as the   representative of society, and, to the extent permitted, the victim, we do not see that there are any other surviving interests that are rightly pursued within the context of a criminal prosecution.” The Court noted that “under our approach, a convicted defendant is not denied any appellate rights, and especially is not deprived of such rights in a discriminatory manner.

In this case the defendant’s “appeal and the criminal prosecution of which it is a part come to an end for the simple reason that, by whatever cause, he died. The record will accurately reflect the case as it was at the time of death; it will reflect the status quo.”