I have a hard time getting excited about stories involving professional athletes. The particulars of why privileged sports millionaires commit heinous crimes get enough discussion elsewhere and don’t advance much understanding of public policy or economics or the general welfare.
However, former Patriots footballer Aaron Hernandez’s escape from guilt by suicide raises a counterpoint in South Dakota law. In 2015, Hernandez was convicted of killing a former friend. He went to prison but was still appealing when he killed himself last week. Massachusetts follows the legal doctrine of abatement ab initio, which says that if a defendant dies before conviction has been finalized, the defendant remains innocent, as presumed before prosecution began.
If Hernandez had committed his crime and his suicide in South Dakota, he’d still be guilty. In 2008, the South Dakota Legislature approved House Bill 1271 wrote abatement ab initio out of state law. If a defendant dies before sentencing, the court enters a judgment of conviction and can impose a sentence collecting restitution, court costs, and costs of prosecution (SDCL 23A-27-49). A representative of the defendant’s estate may carry on appeals (SDCL 23A-27-50). That representative has thirty days to file that appeal (SDCL 23A-32-20). A representative of a deceased defendant may continue a pending appeal by filing a motion for substitution within sixty days of the defendant’s death (SDCL 23A-32-21).
Rep. Rich Engels sponsored 2008 HB 1271; the only people to vote against it were Reps. Jim Bradford, Tom Hackl, Roger Hunt, Tim Rave, and Manny Steele.
By killing himself, Hernandez won the same legal result as a successful appeal. In South Dakota, his death would not have put him or his estate beyond the reach of the long arm of the law.
That’s an ugly thought. What if the deceased is later found innocent by some legal group that gives a whodunit about shoddy convictions? It ain’t like that never occurs in our judicial system.
Your premise that under “abatement ab initio” a suicide would work as an acquittal and insulate the accused’s estate from liability is incorrect. A victim still has the right to pursue a civil remedy even after an acquittal. Recall the OJ Simpson acquittal followed by a huge civil judgment against OJ for committing the very acts he was acquitted of in the criminal case.
And typically restitution orders are much more limited than damage awards in civil suits. A victim would be crazy to try to continue an prosecution where he has to prove his case beyond a reasonable doubt when he has a civil remedy that requires only a preponderance of the evidence and allows jurors to decide damages, including for losses that criminal restitution awards do not cover, such as compensation for pain and suffering.
It makes no sense to me that someone like Hernandez who was found guilty by a jury automatically has that conviction abated (thrown out) when he committed suicide – just because an appeal is pending. Who is to say he would win that appeal? Why should the family of the victim be denied a conviction that the jury gave them and that no appeals court has taken away?
When someone pleads guilty or is found guilty the presumption of innocence is gone. A conviction should stand unless and until the convict or his estate prevails on appeal. And the victim’s family should have whatever restitution the court of criminal conviction awards them. That shouldn’t be automatically thrown out either when a convict kills him/herself. It makes me wonder if Hernandez was aware that his conviction would be thrown out if he died while it was on appeal. Did he kill himself so that he would be considered an innocent man in the eyes of the law when his appeal didn’t look promising? Was this one last indignity directed at the family of his victim? I’m glad SD gives precedence to a jury’s verdict over an arbitrary and antiquated legal theory.
My thought was, ‘Will this make Odin Lloyd alive’m
True, bear—the family can still pursue a civil case. But isn’t “insulate” still an accurate term? It’s much easier for victims to win a civil case if the defendant has a guilty verdict on the record. Erasing that verdict creates some “insulation”—not a bullet-proof defense, but a lot better than a conviction.
Cory, evidence of prior convictions is normally inadmissible in civil litigation. The fact that one jury convicted a defendant for the same behavior he is being sued for in the civil suit may show what the criminal jury believed or found, but such evidence has no relevance to proving the defendant’s behavior or credibility in a separate civil case.
Even if the prior jurors’ opinion had some relevance, which it doesn’t, a court would have to weigh the probative evidentiary value of a prior jury verdict against the prejudicial effect it would have on a neutral new jury. The danger of a verdict based of deference to the criminal jury, rather than the actual evidence presented in the civil case, would keep the conviction out. Thus, leaving the conviction in place, rather than dismissing the criminal charge, would not assist a plaintiff in a civil lawsuit.
Incidentally, evidence of a prior acquittal is likewise normally inadmissible in a civil lawsuit based upon the same conduct. Sauce for the goose is sauce for the gander I guess.
Aaron was innocent till proven guilty, then he was proven guilty beyond a shadow of a doubt, then he did not see hope to prove himself innocent so he gave up and killed himself. Not a sign of an innocent person. He had just seen someone get exonerated so he saw the difference between that case and his own. Maybe he was afraid of those he testified against. But like anyone else, he should be exonerated only if he can be proven innocent, based on facts, not based on if he is dead or alive.
Our legal system is designed to give the accused a fair trial and avoid mistaken convictions. Hence we have appeals to make sure that a jury is properly instructed, that only admissible evidence is considered by the jury, and that there are no other errors that deny due process or result in improper convictions.
Arguments that a jury’s verdict should be the end of the inquiry if the accused dies while the case is on appeal overlooks the reality that trial judges make mistakes every single day across the country by allowing improper evidence or by incorrectly instructing the jury, among many other possible mistakes.
I doubt that Roger or Ror would want to declare someone guilty based on a jury verdict if the prosecution knowing presented perjured testimony, or if the judge instructed the jury that it had no other choice than conviction.
The reality of mistakes at trial are the reason for the normal rule that a conviction will be vacated if the defendant dies before the appeals have finished.
A corresponding question is: Should a defendant who is indicted for a crime be considered guilty if he dies before trial? After all a grand jury determined that he was probably guilty, and he didn’t prove his innocence before he died? Or go another step backward, should someone arrested by the police who dies before indictment be considered guilty since the police would not have arrested him absent some indication he committed a crime?
A slippery slope indeed.
You have entirely missed the point of South Dakota’s law, bearcreekbat. Our law is superior to the rule of abatement ab initio followed in Massachusetts because in SD the jury’s verdict (or a guilty plea) is not arbitrarily thrown out based upon whether the person is dead – rather than based upon whether the person is innocent. South Dakota’s law allows the estate to prosecute an appeal on behalf of a deceased convict the same as that person could do for him/herself. The opportunity to have a conviction thrown out is exactly the same if the person is alive or dead.
The second paragraph of your post above sets up a false strawman for your to knock down, because nobody is arguing that an appeal should be denied even to a deceased convict. Our law allows an appeal to move forward with the estate substituted for the deceased. And the questions at the end of your last post rise to the level of disingenuousness.
Bear, the Boston Globe says, “…Hernandez’s criminal conviction was introduced as part of the liability portion of the civil suit….” Are you saying that’s an unusual circumstance?
Cory, in my limited experience it would be unusual for a court to admit evidence of a prior conviction as proof against the defendant in a civil case. I am unaware of any rule of evidence that would permit this evidence in South Dakota or in federal courts. It appears that SDCL 19-19-404(b) covers prior convictions and as I read that statute I see no exceptions for a criminal conviction that is based on the same facts as a pending civil case. There may be another statute that I missed that specifically allows such evidence.
If the story in the Globe is accurate (I am not a subscriber so I can’t access your link to the story), there are a couple possible explanations. Massachusetts may have a statute specifically allowing such evidence, as some states have adopted such a rule.
An older law review article (1956) explains:
http://scholar.smu.edu/cgi/viewcontent.cgi?article=3995&context=smulr
A newer essay from a private medical malpractice attorney states:
https://www.thomsonrogers.com/resources/the-admissibility-of-criminal-convictions-in-civil-trials/
Ror is correct about substitution of a personal representative for a deceased defendant in the criminal appeal. I incorrectly assumed the appeal would be dismissed as moot, but the conviction would stand under the new law. I was not aware that our statute authorized the defendant’s estate to pursue the appeal. Since the defendant’s death no longer moots the appeal Ror is correct and my prior comment was incorrect.