Don’t like overturning of serial killer’s conviction after his death? Take it up with lawmakers, defense says. | Courts

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A little-known rule used by an appeals court to void Baton Rouge serial killer Kenneth Gleason’s conviction after he died while trying to overturn the verdict is still good law, and only state legislators can changes it, his lawyer told Louisiana’s top court.

“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,” Katherine Franks, who is Gleason’s appellate attorney, argues in documents filed recently. at the state Supreme Court.

The high court announced in February, three months after the state 1st Circuit Court of Appeal in Baton Rouge threw out Gleason’s conviction, that it would review that decision. Last week, the justices scheduled a hearing for May 10.

The 1st Circuit, at Franks’ request, used a little-known common law doctrine known as “abatement ab initio” to toss Gleason’s conviction. The doctrine requires courts to set aside a conviction if the defendant dies while his appeals are pending.

Gleason, 27, was found hanging in his Angola cell in September, a month after he was sentenced to life in prison for his April first-degree murder conviction.

The East Baton Rouge Parish District Attorney’s Office filed its written arguments with the Supreme Court early last month, arguing that it’s past time to scrub the “outdated” doctrine, which the office argues is “illogical and hurtful” to victims in the Gleason case and the citizens of Louisiana.

Prosecutors want Gleason’s conviction reinstated.

In Latin, the phrase abatement ab initio means “abatement from the beginning.” The doctrine abates not only the appeal but also all proceedings in the prosecution from its inception.

Franks, in recently filed written arguments of her own, says the 1st Circuit “did not err insofar as it applied this Court’s precedent.”

“The State is seeking a departure from existing precedent,” the notes.

East Baton Rouge Assistant District Attorney Dylan Alge acknowledged in his Supreme Court brief that the appellate court “relied on controlling precedent from this Court to justify its actions,” but he also noted that a “dwindling number of states still follow abatement ab initio.”

The District Attorney’s Office wants the high court to adopt what is referred to as the “Alabama Rule,” which multiple jurisdictions have adopted. The rule allows for a note in the trial court record that says a conviction removed a defendant’s presumption of innocence, but that the conviction was appealed and was neither affirmed nor reversed because the defendant died.

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

The Alabama Rule was used by the highest court in Massachusetts to overturn the vacating of former New England Patriots football player Aaron Hernandez’s first-degree murder conviction. He committed suicide in prison in 2017 while his appeal was pending. He was serving a life sentence.

The trial judge in that case threw out Hernandez’s conviction, citing the abatement ab initio doctrine, but the Massachusetts Supreme Judicial Court reversed the judge in 2019 and completely abandoned the doctrine.

The Tennessee Supreme Court also abandoned their state’s five-decade-old abatement ab initio procedure in 2019, calling it “obsolete” and saying its continued application “would do more harm than good.”

Alge has argued that there has been a “seismic shift” in how society treats crime victims since the Louisiana Supreme Court’s adoption 46 years ago of abatement ab initio.

Gleason was found guilty in the Sept. 14, 2017, shooting death of Donald Smart, 49, as the Black man walked along Alaska Street just north of the LSU campus to his overnight shift at Louie’s Café.

To convict Gleason, a White man, on the first-degree murder charge, which can be brought when there are multiple killings, the jury also had to find that he fatally shot Bruce Cofield, 59, two days earlier, as Cofield, who also is Black, sat at a bus stop near the intersection of Florida Boulevard and South Acadian Thruway.

Gleason also was accused of firing into the home of the only Black family on his street in the Hickory Ridge subdivision off Coursey Boulevard over a four-day span in 2017.

Alge reminded the high court that Gleason “put an entire city on edge” by “targeting a particular minority group.”

But Franks says the question presented to the Supreme Court is “solely a legal one” and she asks that the court not consider the facts, which she alleges have been introduced in the state’s written arguments “for their emotional impact and to affect the decision. “

Gleason was sentenced to life in prison without parole in August and arrived at the Louisiana State Penitentiary on Sept. 20. He was found hanging in his cell two days later.

Alge says a formal declaration of suicide has not been made.

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