THIS STORY HAS BEEN FORMATTED FOR EASY PRINTING

Why, legally, Geoghan is now 'innocent'

By Rosanna Cavallaro, 8/29/2003

IT WOULD NOT BE surprising if some of the victims of John J. Geoghan's abuse were feeling that Geoghan is, at least in some respects, better off dead. Having been convicted for one episode in 1992 of sexual molestation of a child, and having been accused of some 100 more, the late, defrocked priest will nevertheless be, in criminal terms, forever innocent after the application of an obscure legal rule that requires vacating a conviction if the defendant dies while his appeal is pending. That rule of abatement was applied most recently upon the death of John Salvi, who did not even contest his involvement in the 1994 killing of two women at two abortion clinics. Yet, both he and Geoghan enjoy in death a status that they would have been very unlikely to enjoy had they lived. What accounts for this strange result?

Underlying the remedy that will be applied to Geoghan automatically as a result of his grisly murder last weekend is the proposition that a conviction in a criminal trial ought not to stick if it has not been reviewed by any appellate court. As the US Court of Appeals for the Seventh Circuit explained when it applied the rule as part of the federal criminal system, "When an appeal has been taken from a criminal conviction to the court of appeals and death has deprived the accused of his right to our decision, the interests of justice ordinarily require that he not stand convicted without resolution of the merits of his appeal, which is an integral part of [our] system for finally adjudicating [his] guilt or innocence."

Abatement, then, is the formal sleight-of-hand that restores a dead defendant to preconviction innocence, but the rule upon which abatement is based is more fundamental: that no one should be stigmatized by an untested and unreviewed conviction.

Appellate review is how we correct errors that occur at trial. Recent revelations about the frequency of error in capital cases, as well as episodes of widespread reliance on erroneous forensic evidence in both capital and noncapital cases, demonstrates the need to adhere to a system that includes such a method of error correction. Perhaps as important, appellate review underscores the importance in our legal culture of assuring that "justice must not only be done but must be seen to be done." By reviewing every criminal conviction, we ensure that punishment will not be imposed on anyone who does not truly deserve it, and that everyone, guilty as well as innocent, will take comfort in that assurance.

Stranger than the outcome in the Geoghan case is the fact that, notwithstanding its importance as a method of actual and perceived error correction, the right to appeal a criminal conviction does not enjoy constitutional protection in this country.

Although the rule of abatement is built upon the premise that the judgment of a trial court is not valid unless reviewed by an appellate court, states can choose to strip away that right. It is not part of the package of procedures, like the right to counsel and the right to a trial by jury, that are enumerated in the Constitution. And the US Supreme Court has resisted many invitations to add it to the list of untouchable constitutional rights. Yet, it would probably come as a surprise to most Americans that the right of appeal is not a sure thing, but is instead of relatively recent origin.

How many courtroom dramas have ended with the accused standing up and shouting that he will appeal? And, although we as a nation have been critical of countries that do not provide appellate review as part of their criminal process, we have yet to guarantee that review in our own state and federal courts. As a matter of our own evolving legal culture then, if not our Constitution, appeal has become an expected part of the process.

This is not to say that Geoghan was, in fact, innocent of the many crimes for which he did and did not stand trial, or that his appeal would have been successful. The criminal system now has no way of determining that. The many victims of Geoghan's abuse are understandably angered and perhaps even traumatized by the symbolism of a legal declaration that he is innocent.

There will undoubtedly be an outcry, as there was after Salvi's death, and an effort to change a rule that compels such a declaration. But the right of appeal that is the basis for the remedy is a right that we should all insist upon in a legal system that has the power to jail and execute its citizens. And to the extent that the abatement of convictions that have not been reviewed reaffirms our commitment to appellate review of all convictions, it is a rule that ought to be kept.

Rosanna Cavallaro as a professor of law at Suffolk University Law School.