In June 2013, Aaron Hernandez, former professional football player for the New England Patriots, was charged with the slaying of his acquaintance, Odin Lloyd. While being tried for the Lloyd murder, Hernandez was indicted for his alleged role in a 2012 double homicide in Boston that took the lives of Daniel de Abreu and Safiro Furtado. Hernandez allegedly shot the men to death over a spilled drink.  In April 2015, a jury convicted Hernandez of first-degree murder (as defined by MA ST 265 § 1) for killing Lloyd, and sentenced him to life in prison without the possibility of parole pursuant to MA ST 265 § 2.  He ultimately was acquitted of the double homicide.

On April 19, 2017, Hernandez was found hanging by bedsheets in his cell inside the Souza-Baranowski Correctional Center.  He was pronounced dead an hour later. The following day Hernandez’s attorneys filed a motion for abatement. Six days later they filed a motion to vacate his murder conviction.

The legal principle abatement ab initio (“abatement”) controls in the Commonwealth of Massachusetts. Abatement generally applies where a defendant dies before exhausting appeals, allowing a court to vacate judgment and to dismiss the charging instrument (complaint or indictment), thus abating the entire prosecution. A rationale for the principle is stated in U.S. v. Moehlenkamp , which reasoned:

“… [W]hen an appeal has been taken from a criminal conviction to the court of appeals and death has deprived the accused of his right to our decision, the interests of justice ordinarily require that he not stand convicted without resolution of the merits of his appeal, which is an ‘integral part of (our) system for finally adjudicating (his) guilt or innocence.'”

Abatement has been granted to past high-profile defendants such as John C. Salvi III and John J. Geoghan. The Salvi case is especially relevant as its facts bear a striking resemblance. Salvi III was convicted and sentenced to life for the 1994 murders of two abortion-clinic receptionists. He committed suicide in prison in 1996 before his appeal could be heard. Judge Barbara Dortch-Okara later voided his convictions.

On May 9, 2017, Aaron Hernandez’s murder conviction was vacated by Superior Justice E. Susan Garsh.  Based upon a trust he created prior to his suicide, there is speculation he knew of the abatement law and hoped the New England Patriots would be ordered to pay funds to his estate. Specifically, Hernandez hired a Boston law firm to file proper documentation with the Bristol County Probate and Family Court for the “AJH Irrevocable Trust.” A leading national treatise, Bogert’s Trusts and Trustees, informs that irrevocable trusts contain devices to protect beneficiaries from claims of creditors: (1) permanent forfeiture of control of trust assets by the settlor (in this case, Hernandez) and (2) discretionary authority in the trustee. Attorney Matthew Berlin, a trustee, confirmed that AJH Irrevocable Trust assets are “not part of the probate estate,” implying the assets are protected from lawsuits, creditors, etc. Hernandez’s attorneys did not disclose the trust beneficiary, but it would not be unreasonable to believe it is his young daughter.

Additionally, Aaron Hernandez left a suicide note addressed to his fiancée, in which he requests she “look after” certain individuals whose names were redacted. He also told her, “You’re rich,” further suggesting Hernandez believed his family would receive a financial windfall.

The New England Patriots terminated Hernandez’s contract within a few hours of his arrest for the Lloyd murder pursuant to a conduct clause in the collective-bargaining agreement executed by the National Football League (“NFL”) and the National Football League Players Association (“NFLPA”). Justice Garsh’s grant of abatement could disqualify Aaron Hernandez’s criminal conviction as a basis for contract termination. However, it is possible the arrest alone suffices to trigger the conduct clause. This matter will likely be preeminent in the forthcoming legal battle over millions of dollars the Patriots may be obligated to pay. Furthermore, wrongful death suits often utilize criminal convictions as factual basis. Odin Lloyd’s mother filed such a suit against Aaron Hernandez in 2013.

As issues are litigated, Westlaw will continue to publish judicial opinion and commentary.

For additional information on topics similar to the one in this article, the following searches may be run on Thomson Reuters Westlaw:

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This post was written by Stanley Rule, senior attorney editor with Thomson Reuters.