Attorney Paula D. Norkaitis, Senior Litigation Counsel in the Tom Bolt & Associates, P.C. Litigation Practice Group,  recently was successful in arguing a case for the principle of abatement with regard to criminal convictions in the U.S. Virgin Islands.

Norkaitis had represented defendant, Edwardo Carmona, Jr., who was convicted at trial of first degree murder by a jury before the Honorable Michael Dunston. Carmona was sentenced to life imprisonment on April 4, 2008.

Within a week of his sentencing, Norkaitis filed a timely notice of appeal and appealed the judgment against Carmona and his conviction. Carmona was fatally shot during an escape from prison on September 21, 2008.  Subsequently, Attorney Norkaitis filed a motion with the U.S. Virgin Islands Supreme Court asking the Court to vacate Carmona’s convictions on the legal principle of abatement. The U.S. Virgin Islands Supreme Court granted Attorney Norkaitis’ motion to vacate defendant’s convictions stating:

"Although Carmona filed a general notice of appeal, he died before submitting an opening brief.    In Durham v. United States, 401 U.S. 481,91 S.Ct. 858, 28 L.Ed.2d 200 (1971) the Supreme Court adopted the “abatement rule”, holding that “(d)eath pending direct review or a criminal conviction abates not only the appeal, but also all proceedings had in the prosecution from its inception. Id at 483, 91 S.Ct at 860) .   United States v. Moehlenkamp 557 F.2d 126, 128(7th Cir.1977) sets forth that the rationale underlying the abatement rule is that “the interests of justice ordinarily require that (a defendant) 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.” The Third Circuit has followed a similar line of reasoning. See United States v. Christopher 273 F.3d 294 (3d Cir. 2001).
"It is reassuring to note that the U.S. Virgin Islands Supreme Court has now agreed with the arguments that our TBA litigation team put forth on appeal and accordingly has adopted the abatement principle." Norkaitis said.