Lawyer: Let legislature decide if suicide cancels conviction

Apr 18, 2022, 2:33 AM | Updated: 2:57 pm

BATON ROUGE, La. (AP) — The Louisiana Supreme Court is preparing to hear arguments about a little-known rule that canceled the conviction of a white man who killed himself shortly after the start of his life sentence for killing a Black man.

Arguments recently filed by Kenneth Gleason’s lawyer contend that the Legislature is the proper body to decide whether to keep or reject the rule, which requires courts to set aside a conviction if a defendant dies while appeals are pending, The Advocate reported.

“If it is to be changed, it should be changed by the Legislature so that companion legislation recognizing the competing constitutional rights of both the defendants and the victims can be enacted,” wrote Katherine Franks, who is Gleason’s appellate attorney.

Prosecutors’ court papers say the Louisiana Supreme Court can change the rule, as high courts in other states have done. Justices have scheduled arguments for May 10.

Gleason, 27, of Baton Rouge, was found hanging in his cell in September, state prison officials said. A formal declaration of suicide has not been made, according to East Baton Rouge Assistant District Attorney Dylan Alge.

Gleason was convicted in April 2021 of first-degree murder of Donald Smart, who was shot on Sept. 14, 2017, as he walked to his overnight shift at Louie’s Café. The charge can be brought when there are multiple killings. In this case, prosecutors brought up the death of another Black man, Bruce Cofield, at a bus stop on Sept. 12, 2017. Gleason was not charged with Cofield’s murder.

Gleason also was accused of firing into the home of the only Black family on his street.

The state 1st Circuit Court of Appeal in Baton Rouge threw out Gleason’s conviction based on a doctrine called “abatement ab initio” — Latin for “abatement from the beginning.” It essentially erases the entire court record.

The East Baton Rouge Parish District Attorney’s Office has asked the court to reinstate the conviction, arguing the doctrine is outdated and hurts victims. The number of states that use it is dwindling, Alge wrote.

He wants the high court to call for a note in such cases stating that conviction removed a defendant’s presumption of innocence, but was appealed and was still in court when the defendant died. He said a number of states have adopted this procedure, called the “Alabama rule.”

Massachusetts’ high court used the Alabama rule in 2019 to reinstate the murder conviction of former New England Patriots football player Aaron Hernandez.

Hernandez was convicted of killing semi-professional football player Odin Lloyd in 2013 and then killed himself in 2015 after being acquitted of most charges in a separate double-murder case.

A district judge threw out Hernandez’s earlier conviction in 2017, saying precedent compelled her to do so.

The rule under which she acted is “outdated and no longer consonant with the circumstances of contemporary life,” the Massachusetts Supreme Judicial Court said.

The Tennessee Supreme Court made a similar ruling in 2019.

Alge has argued there has been a “seismic shift” in how society treats crime victims in the 46 years since the Louisiana Supreme Court found “abatement ab initio” valid.

Franks countered: “A trend in other jurisdictions … should not form the basis for the change in the absence of any action by the Legislature.”

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Lawyer: Let legislature decide if suicide cancels conviction