U.S. v. Rorie, 58 M.J. 399

Trial Stages: Appeals: Generally

1. abatement ab initio of a conviction upon the death of appellant is neither appropriate nor required at CAAF
2. the first purpose advanced in support of the policy of abatement ab initio relates to the interests of justice and dictates that a defendant should not stand convicted without resolution of the merits of his appeal; CAAF believes that the initial review by a Court of Criminal Appeals provides a military defendant with a substantive legal and factual review; the interests of justice are further enhanced at the Courts of Criminal Appeals by an appellant’s broad right to personally assert matters before the military appellate courts
3. the second purpose advanced for abatement ab initio is that punishment in the criminal arena is personal and the death of the defendant eliminates the purpose of punishment; unquestionably, upon the death of a military defendant traditional punishments such as confinement and forfeiture become moot; however, CAAF believes there remains a substantial punitive interest in preserving otherwise lawful and just military convictions; for persons serving in uniform who are subject to court-martial and for the Government, military status and the nature of a discharge remain significant considerations; CAAF does not believe that the death of an appellant following the resolution of an appeal to the Court of Criminal Appeals moots the punitive purposes or substantial interests attached to a bad-conduct discharge, a dishonorable discharge, or a punitive dismissal from the service
4. another consideration to weigh in analyzing the abatement issue is the impact of abatement ab initio on victims’ rights; where there has been one level of appeal of right, abatement ab initio at CAAF frustrates a victim’s legitimate interest in restitution and compensation
5. CAAF finds further support for its decision not to adopt a policy of abatement ab initio in the nature of the Court’s petition jurisdiction; the discretionary nature of CAAF's petition jurisdiction is more analogous to the Supreme Court’s discretionary certiorari practice, and it does not deprive an appellant of any review of right by changing its policy with respect to abatement ab initio
6. the proper focus of cases dealing with abatement is upon the opportunity for an appeal of right and a conviction that can be relied upon as fair and just; moreover, there is nothing in the plain language of Article 71 imposing a congressional mandate for abatement ab initio; Article 71 no more compels that CAAF adopt a policy of abatement ab initio than it compels the United States Supreme Court to have such a policy with respect to its review of military convictions; the mere possibility that CAAF will exercise its discretion to find good cause for a grant of review does not transform into an appeal of right similar to that existing at the Federal Circuit Courts of Appeals
7. CAAF notes that the rule of abatement ab initio is a matter of policy in the Federal courts; it is not mandated by the Constitution or statute, nor has CAAF adopted it as part of its Rules of Practice and Procedure; absent direction from Congress or the President on this matter, CAAF is convinced that abatement ab initio is not a policy compelled by the interests of justice or its jurisdictional underpinnings

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. because an appeal to the Courts of Criminal Appeals is an appeal of right, CAAF leaves to those courts or the Judge Advocates General to establish the parameters of a policy of abatement in the event that an appellant dies pending review at a Court of Criminal Appeals

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. when an appellant dies pending an Article 67(a)(3) appellate review by CAAF, it will dismiss or deny the petition but will not abate the action ab initio; CAAF therefore adopts the rule established by the U.S. Supreme Court in Dove v. United States, 423 U.S. 325 (1976); Berry v. The Judges of the United States Army Court of Military Review, 37 M.J. 158 (C.M.A. 1993) and United States v. Kuskie, 11 M.J. 253 (C.M.A. 1981) are hereby overruled to the extent that they are inconsistent with this decision

Miscellaneous Matters: Judicial Review: Stare Decisis

1. CAAF is not unmindful of the importance that the doctrine of stare decisis plays in its decision-making; the doctrine of stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process
2. a decision to alter a policy of abatement ab initio does not fall into any of the categories identified as important areas within which to preserve precedent under stare decisis; the issue is not one of constitutional or statutory interpretation, nor has it been presented with any reliance interests of appellant
3. stare decisis is a principle of decision-making, not a rule, and need not be applied when the precedent at issue is unworkable or badly reasoned; admittedly, the current policy of abatement cannot be considered unworkable; however, CAAF believes that the weight of reason supports a change in the rule
4. CAAF may alter its policy in regard to abatement ab initio without being constrained by stare decisis; CAAF is less constrained by the doctrine of stare decisis in this instance because it is determining a matter of court policy rather than contemplating a change in the law or a change impacting upon an articulable right of an appellant