Tennessee Supreme Court Abandons Doctrine of Abatement Ab Initio

August 7, 2019

The Tennessee Supreme Court today ruled unanimously that the Court of Criminal Appeals should no longer vacate convictions when criminal defendants die during an appeal guaranteed by law, known as an appeal as of right from the conviction.

In the case before the Court, Mr. Hassan Falah al Mutory was found guilty of reckless homicide. He appealed his conviction but died before the Court of Criminal Appeals could rule on the matter.  Mr. Mutory’s attorney then filed a motion asking the Court of Criminal Appeals to apply the doctrine of abatement ab initio, which the Tennessee Supreme Court first adopted in 1966. This doctrine requires appellate courts to vacate a defendant’s conviction and dismiss the indictment if the defendant dies during an appeal as of right from a conviction. The State opposed this motion, arguing that the doctrine of abatement ab initio now is inconsistent with the laws and public policy of Tennessee.  The Court of Criminal Appeals rejected the State’s argument, applied abatement ab initio, vacated Mr. Mutory’s conviction, and dismissed the indictment. 

The Tennessee Supreme Court granted the State permission to appeal.  The Supreme Court unanimously concluded that, due to changes in the public policy of Tennessee in the arena of victims’ rights, the doctrine of abatement ab initio should be abandoned.  Although some states allow an appeal to continue after a defendant’s death if other interests, such as restitution or probate or legal issues of broad application are at issue, the Supreme Court, by a four-to-one vote, concluded that no party had advanced an interest that would benefit from allowing Mr. Mutory’s appeal as of right to continue.  This same four-justice majority refrained in this case from adopting a final procedure to replace abatement ab initio but reinstated Mr. Mutory’s conviction and dismissed his appeal because no interest or evidence had been presented warranting continuation of the appeal.  The Supreme Court majority referred the issue to the Advisory Commission on the Rules of Practice and Procedure for further study and, if appropriate, for a recommendation of a procedure to replace the doctrine of abatement ab initio to apply when a defendant dies during the pendency of an appeal as of right from a conviction.  

Justice Sharon G. Lee filed a separate opinion concurring in part and dissenting in part. Justice Lee agreed with the Court’s decision to abandon the doctrine of abatement ab initio.  Justice Lee, however, did not go along with the Court’s decision to dismiss Mr. Mutory’s appeal.  In Justice Lee’s view, the Court should have adopted a procedure for appellate review of convictions involving fines, fees, restitution, or civil consequences to the defendant’s family or estate.  This approach, which balances defendants’ and victims’ rights, would provide a safeguard against the injustice of a wrongful conviction and the resulting financial costs to a family or estate. 

To read the majority opinion in State v. Mutory, authored by Justice Cornelia A. Clark, and the separate opinion, authored by Justice Sharon G. Lee, go to the opinions section of tncourts.gov.