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National Crime Victim Law Institute

Commonwealth v. Hernandez, --- N.E.3d ---, No. SJC-12501, 2019 WL 1141521 (Mass. Mar. 13, 2019)

March 21, 2019

Defendant appealed as of right following his convictions for murder in the first degree and other offenses, but died while waiting assembly of the record for appeal.  The Superior Court dismissed the notice of appeal, vacated the convictions, and dismissed the indictments under the doctrine of abatement ab initio.  The commonwealth applied for direct appellate review, urging the court to abandon the doctrine.  The court concluded that the doctrine of abatement ab initio was “outdated and no longer consonant with the circumstances of contemporary life, if, in fact, it ever was.”  In reaching this conclusion, the court noted both that Massachusetts had very few cases applying the doctrine, and none explaining the rationale other than that it appeared to be the majority approach when adopted; now, most jurisdictions were turning away from the doctrine.  Thus, although when the doctrine was established in Massachusetts it may have been the preferred or majority approach, that is no longer the case.  The court recognized the importance of stare decisis, but further recognized the doctrine was not absolute.  Considering the consequences of abatement ab initio to victims and family members of the defendant, the court found it to be appropriate to examine the reasons underlying the doctrine: finality and punishment.  Although the finality principle is fundamental to our system of justice, it is no longer presumed that a defendant is innocent after conviction; rather, a convicted defendant is presumed guilty despite the pendency of appeal.  As to the punishment principle, although punishment is a major goal of the criminal justice system, there are other interests that also need to be considered: “through State Constitutions, statutes, and other avenues, the justice system acknowledges the rights and interests of the victims of crime.”  The court recognized that “[w]hen a serious crime has been committed, the victims and survivors, witnesses, and the public have an interest that the guilty not only be punished but that the community express its condemnation with firmness and confidence.”  The court concluded that the correct course was 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 denied because the defendant died.  The trial judge’s order allowing the defendant’s motion to abate prosecution, dismissing the defendant’s notice of appeal, vacating his convictions, and dismissing the indictments was reversed.