If James 'Whitey' Bulger dies before appeal, so do convictions

Nov. 18, 2013 at 3:53 PM
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BOSTON, Nov. 18 (UPI) -- A legal doctrine could wipe out Boston mobster James "Whitey" Bulger's murder convictions if he dies while his appeal is pending.

The "abatement ab initio [from the beginning]" rule, which has been on the books for 110 years, expunges both convictions and indictments if they aren't upheld before the defendant dies, meaning that if Bulger, 84, dies behind bars waiting for his appeal, all charges and convictions against him will be dropped, the Boston Herald reported.

"In the eyes of the law, he would be better off dead. For the victims, this would be one more galling twist of the knife," Suffolk University law Professor Rosanna Cavallaro said Sunday.

"This is not purely ceremonial, and its applicability is very real," said Martin W. Healy, chief legal counsel for the Massachusetts Bar Association. "The appeal doesn't just disappear and the case isn't merely dismissed, but everything associated with the case is extinguished, leaving the defendant as if he had never been indicted or convicted."

Cavallaro said if Bulger dies before his appeal is decided, the law could have ramifications on whether the 
$19.5 million Bulger was ordered to pay his victims in restitution would stand.

"In some jurisdictions, those things also fall apart," Cavallaro said, "because they're contingent on [the defendant] being convicted."

Bulger's lawyer, Hank Brennan, who plans to file Bulger's notice of appeal this week, said he hasn't talked about abatement with his client.

"It's not even a consideration in my mind," Brennan said. "We're going to appeal and I expect to win."

Brennan also said Bulger doesn't plan to fight the restitution order while his appeal is pending.

"We wouldn't, at this point as a strategic tool, try and hold money hostage," Brennan said. "All the money should be given to the families."

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