by David M. Reutter
Confronted with the appeal of a defendant who died on November 10, 2022, the Supreme Court of Louisiana reversed its own precedent and refused to abandon his prosecution. With that, the Court decided that the doctrine of abatement ab initio is “obsolete and inconsistent with our positive law.”
At issue was the case of Kenneth Gleason, a white man convicted of the 2017 first-degree murder of a Black stranger, Donald Smart. For that, Gleason was sentenced to life in prison without the possibility of parole, probation, or suspension of sentence.
In September 2021, while still in a two-week COVID-19 quarantine after arriving at the state penitentiary in Angola, Gleason fatally hanged himself in his cell. He left behind some unanswered questions – no murder weapon was ever found – along with a pending appeal to his conviction. So the Louisiana Appellate Project filed an appeal on his behalf under the doctrine of abatement ab initio. As the high court later explained, “abatement ‘from the beginning’ provides that when a defendant dies during the pendency of a direct appeal, the appeal be dismissed, the conviction and sentence vacated, and the indictment dismissed.”
In Gleason’s case, the appellate court did just that: It dismissed the appeal, vacated the conviction, and remanded the case to the trial court with instructions to dismiss the indictment.
Sounds reasonable, right?
The defendant was still fighting his conviction when he died, so was his guilt finally proven? The Court had adopted abatement ab initio in State v. Morris, 328 So.2d 65 (La. 1976), and “[w]hile the historical origins of the rule are unclear, early justification in the United States appeared premised on the acknowledgment that punishment of a deceased defendant is futile.” Moreover, the Court added, the “surviving family has an interest in preserving, unstained, the memory of the deceased defendant or his reputation.”
So the Court in 1976 decided: Why hound the defendant past the grave?
To which the Court in 2022 answered: Because of “change to the positive law in areas of victims’ rights and restitution.”
Arguing for reversal of Morris, the State urged the Court to adopt the “Alabama Rule” and dismiss the appeal, while maintaining the conviction with a notation in the record that the defendant died, leaving the conviction neither affirmed not reversed.
But overruling precedent requires “consideration of three factors” the Court recalled, citing State v. Harris, 340 So. 3d 845 (La. 2020). The first is “whether the precedent was egregiously wrong when decided, or later revealed as such by subsequent legal or factual understandings.” The next is “the precedent’s negative jurisprudential or real-world effects.” And the last is whether “overruling the precedent [would] unduly upset reliance interests.”
So the Court got down to work. The 1998 “codification of victims’ rights in the Louisiana Constitution touches on both the first and second factors,” the Court began, deciding that the animus behind the constitutional amendment “runs counter to the emphasis Morris placed on the defendant’s reputation.”
First, there’s the matter of restitution. Reaching across the continent to quote the Washington Supreme Court’s ruling in State v. Devin, 158 Wn.2d 157 (2006), the Louisiana high court said that “abatement ab initio ‘threatens to deprive victims of restitution that is supposed to compensate them for losses caused by criminals.’”
Stretching even farther, all the way to Alaska and its Supreme Court, the Louisiana justices added that “[m]onetary considerations aside, ‘interests of the victim and the community’s interest in condemning the offender persist even after the defendant’s death,’” quoting State v. Carlin, 249 P.3d 752 (Alaska 2011).
As for the last factor, “Courts question whether such [reliance] interests merit … a solution wherein a defendant’s appeal is treated as successful though it was never actually adjudicated,” the Court said, zipping back across the country to cite the Supreme Judicial Court of Massachusetts in Commonwealth v. Hernandez, 481 Mass. 582 (2019).
In that ruling, the underlying criminal case was also sensational, and former NFL player Aaron Hernandez died in prison while an appeal to his murder conviction was pending. Holding that his conviction should be noted “neither affirmed or reversed,” the Massachusetts high court also abandoned abatement ab initio in that state.
While Louisiana’s constitution guarantees a right to appeal, “the lack of an appeal does not necessarily render a conviction illegitimate,” the Louisiana justices said. True, numerous courts have observed that conviction removes the presumption of innocence. Moreover, “a (dead) defendant on appeal is no longer capable of being punished” – what the Court called the “punishment principle.”
But this principle “ignores that the State has an interest in preserving a presumptively valid conviction,” as well as “the advent of victims’ rights legislation.” Now that the Louisiana Constitution codifies victims’ rights, “[a]batement of the conviction subordinates the victims’ constitutional guarantees of fairness, dignity, and respect to the reliance interests of the convicted,” the Court said.
Thus, the doctrine of ab initio was abandoned in Louisiana. The appellate court’s ruling was reversed, the appeal dismissed, and the case remanded with directions for the trial court to note “in the record that while the conviction removed defendant Kenneth Gleason’s presumption of innocence, it was neither affirmed or reversed on appeal due to his death.”
In a rousing partial dissent, Justice Scott J. Crichton couldn’t get past the “heinous nature of the hate crimes in this case” – though Gleason was never charged with a hate crime. Agreeing that abatement ab initio is “obsolete in Louisiana law,” Chrichton wanted the note in Gleason’s record to state simply: “Appeal Dismissed; Conviction Final.”
The justice also “question[ed] the Louisiana Appellate Project’s use of resources to defend this case, all the way to the Louisiana Supreme Court, at the expense of defending incarcerated indigents in other appellate matters, notwithstanding the fact that the public defender system has very tight resources.” See: State v. Gleason, 349 So. 3d 977 (La. 2022).
Additional source: The Advocate
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