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2020 Rutgers Univ. L. Rev. Commentaries 28 (2020)

handle is hein.journals/rgsusty2020 and id is 1 raw text is: RUTGERS UNIVERSITY LAW REVIEW COMMENTARIES MARCH 2,2020 ABATEMENT AB INITIO IN NEW JERSEY AND THE EVOLVING LEGAL LANDSCAPE Jason Kornmehl* Table of Contents I. IN TR O D U CTIO N ......................................................................................2 8 II. ABATEMENT AB INITIO OVERVIEW........................................................29 III. ABATEMENT IN NEW JERSEY ...............................................................32 IV. CONCLUSION ........................................................................................37 I. INTRODUCTION What is the effect of a criminal defendant's death while an appeal challenging a conviction is pending? At one point, both federal and state courts provided a fairly uniform answer: death pending appeal required that the judgment of conviction be vacated and the indictment dismissed.i In other words, courts generally treated the defendant as if he or she had never been charged.2 Because the defendant's death discontinued all proceedings ab initio (from the beginning), this common law doctrine came to be known as abatement ab initio.3 Several criminal cases involving high profile defendants, such as former NFL football player Aaron Hernandez, who died while their appeals were pending, have brought this once-obscure doctrine to the forefront.4 Recently, courts have begun to reexamine abatement ab initio, and in the past year, at least three state courts of last resort have moved away from automatically vacating a defendant's conviction.s Although many jurisdictions continue to apply the abatement ab initio -Jason Kornmehl is an attorney practicing in New York. 1. See Alexander F. Mindlin, Note, 'Abatement Means What It Says: The Quiet Recasting of Abatement, 67 N.Y.U. ANN. SURV. AM. L. 195, 204-05 (2011). 2. Timothy A. Razel, Dying to Get Away With It: How the Abatement Doctrine Thwarts Justice And What Should Be Done Instead, 75 FORDHAM L. REv. 2193, 2196 (2007). 3. See id. 4. See Patrick H. Gallagher, The Aaron Hernandez Case: The Inconsistencies Plaguing the Application of the Abatement Doctrine, 53 GoNz. L. REv. 263, 266 (2018). 5. See, e.g., State v. Al Mutory, 581 S.W.3d 741 (Tenn. 2019); Payton v. State, 266 So. 3d 630 (Miss. 2019); Commonwealth v. Hernandez, 118 N.E.3d 107, 120 (Mass. 2019). 28 RUTGERS UNIVERSITY LAW REVIEW COMMENTARIES MARCH 2, 2020

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