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 justify continuing the proceedings.

Justice questioning focused on the procedural posture: an assented-to motion for testing led to a superior court order; the Commonwealth later moved to vacate that order and the superior court denied the motion. The justices asked whether the superior court's denial should be reviewed for abuse of discretion and, if so, whether the circumstances here fell outside the range of reasonable alternatives.

Defense counsel Jessica Dormitzer, joined by Jack Langa, said the case presented a narrow question about a motion filed while the defendant was alive and urged that testing should not be vacated simply because the moving party later died. Dormitzer argued Section 278A serves multiple constituencies: the moving defendant, victims or the victim's estate, the court, and prosecutors. She told the court that the statute's purpose extends beyond a single remedy and includes obtaining information that can "further the truth," which in this case could include identifying a third-party DNA profile from fingernail scrapings and prompting further investigation.

Justices pressed both sides on factual and practical points. They asked why fingernail clippings had not been produced for testing and whether any failure to produce materials reflected intentional noncompliance; Mark said the apparent failure to produce those clippings was "a mistake by the state police lab" rather than an effort by the Commonwealth to evade the order. The court also discussed whether a positive CODIS hit on fingernail DNA would by itself exonerate Tanner, with counsel and the court agreeing that a single test result might not, alone, produce an unambiguous exoneration but could prompt further inquiries.

The court also explored representation issues after death. Several justices noted the general rule that an attorney's authority terminates with a client's death and asked whether Dormitzer had authority to continue representing Tanner or should seek appointment as a limited-purpose representative for the estate. Dormitzer acknowledged the issue had not been briefed and said she would investigate obtaining proper authority.

Other points of practical consequence discussed included chain-of-custody and confidentiality concerns if testing proceeds posthumously, who would receive test results under Section 278A, and whether the statute's standing requirement is assessed at the time of filing (Dormitzer and precedent cited by counsel said standing is determined at filing).

No final decision was announced during argument. The appeal asks the Supreme Judicial Court to decide whether the superior court erred in refusing to vacate the testing order and, more broadly, how Section 278A operates when the original moving defendant dies after securing an order for testing.

Provenance: portions of this article draw directly on the parties' oral arguments and the court's questioning recorded in the argument transcript, including David Mark's opening ("the motion judge had no discretion to deny our motion to vacate") and Jessica Dormitzer's framing of the statute's purposes.