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Victims' Families Will Suffer for Aaron Hernandez's Suicide

How an obscure law upends the civil cases against the football star.

Presumed innocent on a technicality.

Photographer: Mike Ehrmann/Getty Images

After the prison suicide of former NFL player Aaron Hernandez on Wednesday, his conviction for murder, under appeal at the time of his death, is going to be reversed. This has nothing to do with Hernandez’s acquittal five days ago on separate murder charges. The reason is a fascinating and obscure doctrine known as “abatement ab initio.” Under Massachusetts law, a conviction that has not been finalized at the time of the defendant’s death is reversed back to the indictment “at the beginning” of the prosecution -- ab initio, in law Latin.

Legally speaking, the presumption of innocence therefore attaches to Hernandez. And that could have consequences for a range of purposes.

Probably the most salient is that the voiding of Hernandez’s conviction could make it much harder for the family of his victim, Odin Lloyd, to gain civil compensation.

Ordinarily, when someone has been convicted of murder or any other crime against person or property, it follows automatically that the victims will be able to collect civil damages. The question of civil liability is settled by the criminal conviction, and doesn’t have to be relitigated.

That’s because the burden of proof in a criminal case is higher than in a civil case. The way the legal system sees it, if it has been proved beyond a reasonable doubt in a criminal trial that you murdered someone, then it has also been proved to a preponderance of the evidence that you’re responsible for the death. And a preponderance of the evidence is typically the standard in a civil case. 1

This same structure in reverse explains why O.J. Simpson could be held civilly liable for the deaths of Nicole Brown Simpson and Ron Goldman after he was acquitted of murder. In the eyes of the law, there wasn’t proof beyond a reasonable doubt of his guilt -- but there was proof to a preponderance of the evidence that he was civilly responsible.

Lloyd’s mother, Ursula Ward, sued Hernandez several years ago. The case was still pending in 2015. It doesn’t appear to have been settled subsequently, probably at least in part because it made sense for both sides to wait until Hernandez exhausted his criminal appeals.

Now the suit will almost certainly become much, much harder. Lloyd’s family probably won’t be able to jump straight to the determination of the damages owed. It will have to prove once more in civil court that Hernandez was responsible for Lloyd’s death.

And that probably can’t happen just by reading the testimony from the criminal trial into the record. If the case is defended by the Hernandez estate, then the witnesses would have to testify again. And it might be hard to get them to agree to do so, because they wouldn’t automatically be entitled to immunity from prosecution and they wouldn’t want to incriminate themselves.

If this all seems a little ridiculous, two federal courts have at least partially agreed.

Their decision relates to the similar but not identical context of restitution orders that are typically made by criminal courts to victims, rather than as part of a separate civil trial. As described in this 2006 practice note, the U.S. Court of Appeals for the 3rd and 4th Circuits have both refused to vacate restitution orders after defendants’ deaths, even though the convictions that gave rise to the restitution orders were vacated.

Unfortunately for Lloyd’s family, I don’t think this legal logic would apply to their civil suit.

The other possible consequence of Hernendez’s conviction being voided may conceivably be better news for Lloyd -- and the families of the two victims in the murder case, who sued Hernandez civilly and whose suit could prevail even after last week’s acquittal.

It has to do with Hernandez’s $37.5 million contract with the New England Patriots that was in place when he was first charged 2013.

The contract included some $12.5 million in signing bonuses. Patriots canceled the contract as of the arrest, after some $9.25 million had apparently been paid to Hernandez. At least $3.25 million was outstanding.

The Patriots’ lawyer told a court in 2014 that “The Patriots believe under the terms of that contract that they owe not another penny to Mr. Hernandez.”

The basis for the Patriots’ cancellation of the contract may now be in doubt. It’s been reported that there was no “failure to perform” or “failure to report” clause in the contract. That means the probable basis for canceling the contract was a different clause in which he represented “that there weren't any existing circumstances when he signed his deal that would prevent his continued availability throughout the contract.”

If Hernandez committed the murders, then there were reasons he wouldn’t be available. But if legally speaking he didn’t commit those murders, the Patriots may owe his estate the $3.25 million -- and the victims’ families could get it.

If the Patriots wanted to be really persnickety, they could say that the families can’t make this argument because they’re also arguing that Hernandez committed the murders. But that would be very, very bad public relations -- and even the Patriots might not be willing to go there in this instance.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

  1. This doesn’t apply to the amount of damages, which aren’t determined in a criminal case; that still has to be litigated.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net

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