The strange connection between a 1966 double-murder, the former Patriots star’s suicide, and a questionable legal theory is a tale that spans five decades.

In 1966, the town of Kingston, Massachusetts was rocked by a horrifying tragedy: Karl Eisen, a 40-year German immigrant, was accused of butchering his wife and oldest daughter to death with an axe. Eisen was later tried and convicted for murder, only to have his name cleared through a technicality because Eisen died in prison while the appeal of his conviction was still pending. The obscure legal doctrine that permitted Eisen’s posthumous exoneration receded to the background of Massachusetts law for more than 40 years, only to reappear in the public eye after the suicide of former Patriots tight end, Aaron Hernandez, who was convicted of murder in 2015.

A Bristol County judge found that Hernandez’s 2017 suicide, which occurred while his appeal was pending, required that the football star’s murder conviction be erased from history under an oddly-named legal doctrine known as “abatement ab initio.” Outrage ensued.

Fast forward to 2019, when the Massachusetts Supreme Judicial Court abruptly reinstated Hernandez’s conviction while declaring the “abatement ab initio” doctrine outdated. Buried in the SJC’s decision was a surprising figure: Karl Eisen, the Kingston axe murderer whose untimely death planted the seed of abatement ab initio in Massachusetts law.

Today, more than 50 years after the murders, a largely forgotten scar remains in Kingston, where the Eisen family lived. Justice came for Hernandez’s victims in the form of the SJC’s decision last month. Unfortunately, the same can’t be said for Margot and Gabrielle Eisen.

Hernandez Suicide Throws Spotlight on Obscure Legal Doctrine

Before the SJC’s decision in Hernandez, a Massachusetts defendant’s criminal conviction could be erased, and the criminal indictment dismissed, if the defendant died while his appeal of the conviction was still pending. In Commonwealth v. Hernandez, issued on March 13, the SJC abolished what it deemed this “outdated” doctrine of “abatement ab initio” (Latin for “from the beginning”) and made its ruling applicable to Hernandez’s case and all criminal cases that follow.

Now, when a defendant dies while appealing his criminal conviction, the conviction will not disappear. Instead, the appeal will be dismissed as moot and the trial court record will note that the conviction removes the defendant’s presumption of innocence, but that the conviction was neither affirmed nor reversed because the defendant died while the appeal was pending.

While many media outlets – and even some Massachusetts caselaw and commentary – described abatement ab initio as a “longstanding” practice in Massachusetts, the SJC actually reported that the doctrine was first acknowledged in an appellate decision here less than 45 years ago, in Commonwealth v. Eisen, 368 Mass. 813 (1975). (In contrast, other state courts reported applying the doctrine much earlier; for example, it was first referenced in Missouri in 1874, and in Colorado in 1904.)

The Hernandez court noted that even in Eisen, the Court did not formally adopt the doctrine; it merely stated that “[w]hen a criminal defendant dies pending his appeal, normally the judgment should be vacated and the indictment dismissed. This is the general practice elsewhere.” The Hernandez court characterized the Eisen decision (which was a “rescript,” or an appellate court’s mandate to the lower court disposing of an appeal) as “more notable for brevity than insight.” Indeed, the tersely worded Eisen decision in 1975 closed the legal book on a horrifying and tragic chapter in the history of the small town of Kingston, one which is now largely forgotten but which shocked the close-knit Massachusetts community to its core in the 1960s.

‘Help, help. Shoot me.’

On the morning of Saturday, November 5, 1966, 28-year-old Milton Young of Foster, Rhode Island was hunting fox in the woods near Sterling, Connecticut with his father. Out of the dense brush appeared a man in his early 40s, looking disheveled. As the man approached, Young could see that he was distraught and ill; he had apparently vomited on himself, and his pants were soiled.

In a thick German accent, the man cried out to Young and his father, “Help, help. Shoot me. I killed my wife and daughter. Call the police.” Authorities were summoned and took the man, Karl Eisen of Kingston, Massachusetts, to the state police barracks in Danielson, Connecticut.

Police throughout New England had been on the lookout for Eisen since the day before, when several of the man’s friends reported that Eisen had called them, saying his wife and daughter were dead. Kingston police went to the Eisen home; when no one answered the door, they entered through a window and discovered a nightmarish scene: Eisen’s wife Margot and the couple’s 14-year-old daughter Gabrielle were dead in the beds, still in their nightclothes, both victims of blunt force trauma to their heads. A pillow had been placed over Margot’s face, which was covered in blood.

Upstairs, someone had piled bureau drawers in front of a small door. Police removed the drawers and opened the small door, which opened into a tiny bedroom. Gabrielle was on the bed, with a blanket folded over her face. She was under the covers, but her left arm was visible across her chest. It appeared she suffered defensive wounds likely incurred while trying to fend off her attacker; her hand was gashed and her thumb was nearly severed. An axe with traces of blood and human hair was found behind a clothes rack in an upstairs bedroom.

Today, murder-suicides involving parents and children are sadly commonplace. In 1966, times were different. News of the murders stunned neighbors and friends of the Eisen family. One newspaper reported that a neighborhood girl, who attended Silver Lake High School with Gabrielle, “was overcome when she learned of her friend’s death as she got off her school bus Friday afternoon.” They usually took the bus to school together, but Gabrielle hadn’t gone to school on either Thursday or Friday.

Surviving the Hitler Youth and a Soviet Gulag to Land in Kingston, MA

According to newspaper accounts, Karl Eisen was born in Germany and joined the Hitler Youth when he was barely a teenager (which was mandatory at the time, even over a parent’s objection). At age 17, during World War II, Eisen became a lieutenant in the German army and commanded a group of tanks. Not long after his commission, Eisen was captured by the Russians. Conditions in Soviet prison camps were brutal; scholars agree that more than 1.1 million German POWs died in Soviet camps. Eisen spent around five years in the sprawling maze of Siberian prison camps that dotted the Russian countryside following the war, where starvation, beatings and forced labor were commonplace.

Following his return to Germany, Eisen married his wife Margot. Gabrielle was born around 1952. In 1956, the family moved to the U.S. and had three more children. The family lived in the Massachusetts suburbs of Lakeville and Middleboro before settling in Kingston in 1963. Karl, Margot and Gabrielle eventually became U.S. citizens, and settled into a typical middle-class life.

The family was well-liked by their neighbors, according to news accounts. Eisen worked as a manager at an appliance store in Plymouth. He was friendly with his customers, who reported he often expressed affection for his children. Eisen was reportedly admired for his talent for creating professional window displays, as well as his service to the local PTA.

But life in a small town, even 20 years after the end of WWII, was not always easy for the Eisen family. Eisen reported being the victim of discrimination at a time when anti-German sentiment still ran strong in parts of the US. According to Eisen’s employer, the family was harassed by unknown strangers who hung a swastika in front of their home, anonymously called their home whispering about “Nazi” movies on TV, and calling the Eisen children “Krauts.”

A Mother’s Illness Sparks Desperation and Violence

Life seemed especially difficult for Eisen’s wife Margot, who, unlike her husband, apparently had no family nearby. According to news accounts, neighbors described Margot as “blue” in the months before the murders. Her health reached a crisis point in March 1966, when she was admitted to Taunton State Hospital, for two months. Margot’s hospitalization forced Eisen to take a leave of absence from the appliance store to care for their four children, who ranged in age from 14 to 4.

In September 1966, the Eisens’ 6-year-old son started first grade at Kingston Elementary School. He reportedly had a difficult time adjusting. Things started looking up for the family, however, when Karl Eisen took a new job at a propane gas company in Wareham. The job paid him more than Eisen’s long-time appliance store position. For Halloween, the family decorated their yard with a jack-o-lantern and the children reportedly went trick-or-treating.

But Eisen may not have been the devoted family man that his friends and neighbors thought they saw. In October 1966, according to trial testimony, Eisen confronted a female acquaintance and implored her to “go away with him.” If she didn’t, he said he would kill himself, along with his wife and the children. Later that month, he called the woman again, repeating the threat. The next month, Eisen made good on his promise.

An Insanity Plea Fails to Explain Incriminating Statements

According to his trial testimony, Eisen did not eat at all on Wednesday, November 2, 1966. He drank some alcohol but did not feel well. He arrived home at 10 or 10:30 p.m. and went to bed, still feeling miserable. During the night, he testified that he heard someone crying, and that he could not awaken his wife, who did not move. He went upstairs to his sons’ room and tucked them in. The next thing he remembered was awakening in broad daylight, kneeling by his son’s bed. He went downstairs and discovered his wife dead, and covered her face with a pillow. He went upstairs and discovered 14-year-old Gabrielle also dead in her bedroom. He then woke up the three other children and drove them to a motel in Connecticut.

Two witnesses testified at Eisen’s murder trial that Eisen had called each of them on Friday, November 4, reporting that his wife and daughter were dead. Their tips led Kingston police to the family home later that day, where they discovered the bodies. The other three children were found safe and unharmed at the motel in Connecticut. Eisen was arrested in Connecticut and extradited to Kingston on November 5.

At the trial, the evidence showed that Margot Eisen had been killed by a single axe blow to the head, and Gabrielle died of nine blows to the head. Multiple witnesses, including Connecticut and Kingston police officers, described incriminating statements Eisen made in the days after the murders. Eisen’s medical expert testified that he was insane on the date of the crime and days that followed, and that Eisen’s descent into depression began around the time his wife was hospitalized in March 1966, leaving Eisen alone to support the family and care for the children. Even the state’s medical expert testified that Eisen was “mentally ill and no longer rational” from March 3 (the date Eisen testified that he found the bodies) through March 7, when he was already in police custody. One could speculate that his mental health may also have been affected by his years of service in Hitler’s military, as well as whatever brutality he may have suffered during his years as a POW at the hands of the Soviets. Regardless, the jury rejected Eisen’s insanity defense, and he was convicted of two counts of first-degree murder.

On appeal to the state Supreme Judicial Court, Eisen argued that his incriminating statements should not have been admitted at trial because he was mentally incompetent at the time the statements were allegedly made. In its 1971 decision Commonwealth v. Eisen, the SJC held that Eisen’s statements were admissible, “not only as to his guilt but also as evidence of his competency to make them.” In so holding, the court relied on the 1934 case of Commonwealth v. Zelenski, quoting, “An insane person is not necessarily an incompetent witness.” The SJC unceremoniously affirmed Eisen’s convictions.

A Shocking Reversal in Federal Court: New Trial Ordered for Eisen Due to Insanity

After his convictions were upheld by the state’s highest court, Eisen turned to the federal courts. He petitioned the federal district court in Boston for a writ of habeas corpus (Latin for “produce the body”), a process that essentially allows a federal court to determine whether a state’s highest court has wrongfully imprisoned the defendant. Eisen’s petition was initially denied, but he appealed the denial to the U.S. Court of Appeals for the First Circuit, which reviewed the case.

Rather than focusing on Eisen’s competency at the time he made the incriminating statements, the First Circuit reviewed the voluntariness of his statements while in police custody. The court expressed “substantial doubt” that the trial court applied the correct test to determine the voluntariness of Eisen’s custodial statements to police, adding, “[T]he court failed to take into account that the defendant’s insanity may have deprived him of his freedom of choice, the essence of his ability to make a voluntary confession.”

The First Circuit determined that the trial judge did not “appear to recognize that insanity related to the issue of volition as well as to the issue of competence.” It also pointed out that in the Zelenski decision, on which the SJC grounded its holding, “[c]ompetency, not voluntariness, was at issue…” The First Circuit concluded that since insanity may deprive a person of his or her ability to make a voluntary confession, the trial judge’s failure to clearly consider whether Eisen’s incriminating statements to police after his arrest “were the product of a rational intellect” mandated a reversal of his petition.

The Court ordered the federal district court to grant Eisen’s petition for habeas corpus, unless Eisen received a new trial “within a reasonable time set by the [federal] district court.”

Abatement Ad Initio Absolves a Convicted Murder in Odd SJC Decision

What happened next is set out in Commonwealth v. Eisen, the case at the root of the recent Aaron Hernandez decision. Eisen was re-tried in the Massachusetts Superior Court sometime between 1971 and 1975, and this time convicted of second-degree murder. Eisen again appealed the conviction to the SJC, which heard oral arguments in the case. Sometime after the oral arguments, but before the SJC could render a decision on his convictions, Karl Eisen died.

Following Eisen’s death in 1975, the SJC stumbled into abatement ad initio. The Court’s decision neither used the Latin phrase in its decision, nor expressly endorsed the doctrine, but the result was the same: the SJC vacated the judgment of conviction and ordered the Superior Court to dismiss the indictment against Eisen.

The SJC’s decision included an intriguing caveat: “Any personal interest in vindication which a member of the defendant’s family may have is not sufficiently substantial to warrant our deciding the appeal.” The SJC’s decision suggests that at least one relative of Karl Eisen – the man who allegedly murdered his wife and daughter with an axe – had urged the court to hear Eisen’s appeal, and exonerate him for his family’s murder, even after his death.

Instead of hearing his appeal after Eisen’s death, the SJC offered a different kind of vindication: abatement ad initio. It took 44 years and a murderous NFL star’s suicide for the Court to change its mind.

About the Author: Kimberley Keyes is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts and East Sandwich, Massachusetts. She is also a mediator for South Shore Divorce Mediation. Before law school, she worked as a newspaper reporter and editor in several South Shore communities, including Kingston.

Schedule with Kimberley Keyes today at (781) 253-2049 or send her an email at kkeyes@lynchowens.com.