Heard: November 8, 2018.
Firearms. Death. Practice, Criminal, Capital case, Death of
Supreme Judicial Court granted an application for direct
M. Quinn, III, Assistant District Attorney (Shoshana Stern,
Assistant District Attorney, also present) for the
M. Thompson (Linda J. Thompson also present) for the
Healey, Attorney General, & Eric A. Haskell, Assistant
Attorney General, for the Attorney General & another,
amici curiae, submitted a brief.
Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, &
appeal, the Commonwealth asks us to reconsider the viability
of 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. The justification for the adoption of the
doctrine has never been explicated, and several compelling
arguments weigh against it. Indeed, many other jurisdictions
have, with increasing frequency in recent years, rejected the
doctrine and followed alternative approaches. The
Commonwealth urges us either to abandon the doctrine
altogether or to recognize an exception to the doctrine
where, as has been suggested may have been the case here, a
defendant commits suicide to prevent the application of the
doctrine and thereby collaterally to benefit surviving family
members, heirs, or other beneficiaries.
conclude that the doctrine of abatement ab initio is outdated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 a direct appeal
as of right challenging his conviction 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. We conclude that this approach, which
otherwise applies only prospectively, should apply in the
a jury trial, the defendant was convicted of, among other
things, murder in the first degree and sentenced to the
mandatory term of life imprisonment with no eligibility for
parole. About two years later, the defendant
died while awaiting assembly of the record
for his appeal.
defendant's appellate counsel filed a suggestion of death
and motion to abate in the trial court, requesting that the
court dismiss the defendant's appeal,  vacate his
convictions, and dismiss the underlying indictments. The
Commonwealth opposed the latter two requests. After hearing,
the judge, who was also the trial judge, issued a thorough
and reasoned memorandum of decision concluding that she was
bound by precedent emanating from this court to apply the
doctrine of abatement ab initio. Consequently, she allowed
defense counsel's motion, dismissed the defendant's
notice of appeal, vacated his convictions, and dismissed the
indictments. We granted the Commonwealth's application
for direct appellate review.
State of the law.
doctrine of abatement ab initio provides that the death of a
defendant "pending direct review of a criminal
conviction abates not only the appeal but also all
proceedings had in the prosecution from its inception."
Durham v. United States, 401 U.S. 481, 483 (1971)
(per curiam). "That is, the appeal does not just
disappear, and the case is not merely dismissed. Instead,
everything associated with the case is extinguished, leaving
the defendant as if he had never been indicted or
convicted" (quotation and citation omitted). United
States v. Estate of Parsons, 367 F.3d
409, 413 (5th Cir. 2004) . The doctrine "is not grounded
in the constitution or in statute, but is instead a
court-created common law doctrine" (citation omitted) .
People v. Griffin, 328 P.3d 91, 92
(Colo. 2014) . See Bevel v.
Commonwealth, 282 Va. 468, 478 (2011) ("It does
not appear that abatement of a criminal case is addressed by
statute in any jurisdiction in the United States");
State v. Webb, 167 Wash.2d 470,
474 (2009) (lack of "authority holding as a
constitutional matter that abatement of a conviction is
required when a defendant dies pending an appeal").
origin of the doctrine "is unclear, with little or no
evidence of its application prior to the late nineteenth
century. . . . These early decisions were occasionally quite
terse and provide little insight into the reasons the courts
elected to abate a case or not, or even as to what aspect of
the case was being abated -- the appeal only or the entire
prosecution" (citation omitted). Bevel, 282 Va.
at 475. "Despite the common acknowledgement that
abatement ab initio is well-established and oft-followed . .
., few courts have plainly articulated the rationale behind
the doctrine." Estate of Parsons, 367 F.3d at
413. Or, as another court put it, 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" (citations omitted). People
v. Ekinici, 191 Misc.2d 510, 516-517 (N.Y.
S.Ct. 2002). In many respects, this describes the evolution
of the doctrine of abatement ab initio in Massachusetts.
Abatement in Massachusetts.
been suggested on several occasions, including by the trial
judge in her memorandum of decision, by a commentator on
appellate procedure, see J.F. Stanton, Appellate Procedure
§ 5:56 (3d ed. Supp. 2017), and even by this court in a
recent summary disposition, see Commonwealth vs. Luke,
SJC-11629, order (July 21, 2016), that the doctrine of
abatement ab initio represents the "longstanding"
practice in Massachusetts. 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,
especially when contrasted with other jurisdictions. See,
e.g., Griffin, 328 P.3d at 93 (doctrine first
recognized by Supreme Court of Colorado in 1904);
State v. West, 630 S.W.2d 271
(Mo.Ct.App. 1982) (tracing doctrine to Supreme Court of
Missouri case from 1874).
would be a stretch to suggest, as the defendant does here,
that the doctrine of abatement ab initio was
"formally" adopted by this court in Ei_s_en, 368
Mass. at 813. That decision, a rescript, is more notable for
brevity than insight. We did not declare that we were
adopting the doctrine, nor did we comment on the potential
benefits or shortcomings of its approach or that of any other
approach. We simply stated that "[w]hen a criminal
defendant dies pending his appeal, normally the
judgment should be vacated and the indictment dismissed. This
is the general practice elsewhere" (emphasis added) .
I_d. at 813-814, and cases cited. We concluded:
"The asserted general importance of certain issues and
counsel's able presentation of his client's appeal do
not justify a different result. Any personal interest in
vindication which a member of the defendant's family may
have is not sufficiently substantial to warrant our deciding
the appeal. . . . Although given an opportunity to do so,
neither the Commonwealth nor the defendant's counsel has
advanced any other reason why a decision on this appeal
should be made" (citations omitted).
Id. at 814. We remanded for dismissal of the
ensuing forty-four years, we have applied the doctrine to a
direct appeal as of right from a conviction in two reported
decisions, both rescripts, both even terser than Ei_s_en.
First, in Commonwealth v. Harris,
379 Mass. 917 (1980), we essentially restated our holding and
reasoning from Eisen and remanded for dismissal of
the indictment. In Commonwealth v.
Latour, 397 Mass. 1007 (1986), again citing
Eisen, we stated that, "[w]hen a criminal
defendant dies pending his appeal, the general
practice is to dismiss the indictment" (emphasis
added), and concluded, in even briefer terms than either
Eisen or Harris, that "[t]here is
nothing about the issues raised in this appeal that leads us
to vary this general rule." Id. Accordingly, we
remanded for dismissal of the complaint. Id.
cases make up the universe of appellate jurisprudence on the
doctrine before us. In sum, abatement ab initio is
"normally" or "generally" the rule,
although it appears to be so for no other reason than because
that was the practice elsewhere.
Federal courts apply the doctrine of abatement ab initio when
a defendant dies during the pendency of an appeal as of
right. In Durham, 401 U.S. at 481, which we cited in
Eisen, 368 Mass. at 814, the defendant filed a petition for
writ of certiorari seeking review of the decision of a
Federal Court of Appeals affirming his criminal conviction.
While the petition was pending, he died. Durham,
supra. The United States Supreme Court, after noting
that lower Federal courts had been "unanimous" and
"correct" in holding that abatement ab initio
applies when a defendant dies while direct review of a
criminal conviction is pending, granted the writ, vacated the
conviction, and remanded with directions to dismiss the
indictment. I_d. at 483. Five years later, the Court
overruled Durham in another per curiam decision that
became known for its brevity:
"The Court is advised that the petitioner died at New
Bern, N.C., on November 14, 1975. The petition for certiorari
is therefore dismissed. To the extent that Durham .
. . may be inconsistent with this ruling, Durham is
Dove v. United States, 423 U.S.
325 (1976) (per curiam). See United States
v. Pauline, 625 F.2d 684, 685 (5th Cir.
1980) (Dove overruled Durham in "42
cryptic, enigmatic words"). The United States Courts of
Appeals have, with the exception of one that has not
addressed the issue, continued to apply the doctrine when a
defendant dies pending a direct appeal as of right, having
either expressly or implicitly concluded that Dove
overruled Durham only with respect to the
disposition of petitions for certiorari, a discretionary form
of appeal. There has been some divergence among
the Federal courts concerning whether there should be an
exception to abatement for restitution orders imposed for
compensatory, as opposed to penal, purposes,  and whether
the doctrine requires reimbursement of fines that have been
paid prior to the defendant's death,  although
both issues have been the subject of renewed scrutiny after
the Supreme Court held in Nelson v.
Colorado, 137 S.Ct. 1249, 1252 (2017), that due
process requires the refund of fees, court costs, and
restitution paid by a defendant when the underlying
conviction has been invalidated and no retrial will occur.
it may have been arguable when Eisen was decided in
1975 that the doctrine of abatement ab initio was the
majority approach, the "more recent trend offers courts
options in deciding how an appeal should be handled upon the
death of an appellant." Statev.Salazar, 123 N.M. 778, 785 (1997). Abatement ab
initio is far from the "general practice" now,
there being, depending on how granular one chooses to define
the categories, anywhere from three to seven different
approaches followed when a defendant dies during the pendency
of a direct appeal of a conviction. Compare Statev.Hollister, 300 Kan. 458, 465-466 (2014)
(discussing three general approaches), with Surlandv.State, 392 Md. 17, 19-20 (2006)
(identifying five ...