Copyright (c) 2002 University of Colorado Law Review, Inc.
University of Colorado Law Review
ARTICLE: BETTER OFF DEAD: ABATEMENT, INNOCENCE, AND THE EVOLVING RIGHT OF APPEAL
73 U. Colo. L. Rev. 943
Just before New Year's in 1994, John Salvi attacked two abortion clinics in Brookline, Massachusetts, firing dozens of shots that left two women dead and five others wounded. 1 A Massachusetts jury rejected his insanity defense - he did not contest having committed the murders - and sentenced him to two consecutive life terms. 2 Salvi appealed the convictions, but in a remarkable reversal, those convictions were erased before the appeal was heard. They were abated ab initio following his suicide in prison. Adhering to a rule that exists in both the federal system and the plurality of states, the appellate court not only dismissed Salvi's appeal, but also instructed the trial court to vacate the conviction and dismiss the indictment because Salvi's appeal had not been, and now could not be, resolved. 3
The effect of that procedural sleight-of-hand was to reinstate Salvi's pre-indictment presumption of innocence, an outcome more favorable than he could have hoped for on appeal. 4 Nothing about Salvi's defense at trial or on appeal had suggested he was innocent of the crimes charged. His lawyers challenged only his criminal responsibility for the assaults. 5 Yet, by virtue of suicide, Salvi is now immutably deemed as guiltless as he had been before the shootings. 6
An often unstated premise underlies the remedy of abatement ab initio: that appellate review of a conviction is so integral to the array of procedural safeguards due a criminal defendant that incapacity to obtain such review ...
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