In the case of Commonwealth v. Aaron J. Hernandez the Supreme Judicial Court of Massachusetts in an opinion written by Judge Elspeth B. Cypher wrote that the : “doctrine of abatement ab initio is outdated and no longer consonant with the circumstances of contemporary life, if, in fact, it ever was.” That doctrine is that if a defendant convicted of murder (or any other crime) dies before his conviction is heard on appeal then the conviction is vacated and it is to be assumed it never happened.
How does a longstanding doctrine that has been in existence in Massachusetts since its inception as a state suddenly become outdated? What does it mean that it was never consonant with the circumstances of contemporary life? When did that contemporary life begin that destroyed traditional jurisprudence?
Under Common Law if a person convicted died before his appeal was heard the conviction would be set aside as if it had never happened. The Common Law was brought into our jurisprudence from England where we accepted such doctrines as a contract needed two or more parties; or if two people agree to a contract one cannot come in later and say he didn’t agree but remained silent (silence is considered assent); or if one person stands by and lets another person build a shed on his land he cannot later come in and force him to remove it. (He is estopped from doing it because of his failure to act when he should have acted.)
In the opinion replete with citations to other courts the judge tells us what other courts have said about the doctrine. One noted, “Despite the common acknowledgement that abatement ab initio is well-established and oft-followed . . . , few courts have plainly articulated the rationale behind the doctrine.” Another said the: “rule that an action abates with the death of a party is one of antiquity” and “[t]he reason for the rule has been lost in antiquity”
The bottom line is that in Massachusetts that doctrine was so well understood that no one contested it. In Norfolk County John Kivlan tried a case involving the murder of two individuals at clinics in Brookline that performed abortions. After much work and a well contested trial he secured the conviction of John Salvi who would shortly after being sentenced to prison take his own life. Despite Kivlan’s objections the doctrine of ab initio was applied. Salvi’s convictions were vacated. Kivlan wanted to appeal the judge’s decision. Everyone told him that it would be a waste of time. The long traditional approach would not be changed.
That was how it was done. The Salvi case ended as did thousands of cases before it because tradition was respected (stare decisis). None were appealed. Now here comes a little bit of judicial trickery. Cypher wrote: “The first reported
appellate case acknowledging the doctrine in Massachusetts, however, was issued in 1975. See Commonwealth v. Eisen, 368 Mass. 813, 813-814 (1975). It strains credulity then to suggest that the doctrine has been a long-standing or historic staple of Massachusetts common law.
This shows how respect for traditional law can be turned against those who respect it. Cypher writes as she did not know of the traditional practice. Maybe she didn’t and if that is the case she shouldn’t be where she is.
She wrote as if the first time the issue arose in the Massachusetts courts was in 1975. Why didn’t she know that the doctrine never was in the appellate courts before because it was so well established and well accepted that no one bothered to appeal it. To pretend otherwise and suggest it has not been “a long standing or historic staple of Massachusetts common law” shows either an abysmal lack of understanding of the law or it is an attempt to fool those who lack that understanding.
I would expect better from the SJC.
As a side note I would suggest to the SJC that it is not consonant with contemporary life to have a judge who “worked in the Bristol district attorney’s office, as an assistant district attorney, and later as Chief of its appellate division” write an opinion on an appeal by the District Attorney for Bristol County.