Supreme Judicial Court asked whether defendant's death voids forensic-testing order in Commonwealth v. Tanner

At oral argument before the Supreme Judicial Court, attorneys debated whether the death of defendant Sean Tanner requires vacating a superior court order for forensic testing under Section 278A.

David Mark, arguing for the Commonwealth, told the court that "the motion judge had no discretion to deny our motion to vacate," and framed his principal point as twofold: (1) the ordinary rule is that pending collateral proceedings terminate on the defendant's death, and (2) neither the text of Section 278A nor its legislative history shows a legislative intent to displace that ordinary rule.

Mark acknowledged that the statute uses mandatory language but told the court the statute does not address this particular eventuality and that both the Commonwealth and the defendant's side had searched legislative history without finding evidence the legislature contemplated posthumous testing. He also pressed the practical question whether testing now could produce the kind of unambiguous demonstration of actual innocence required to…