Howell v. United States ( 1983 )

NEBEKER, Associate Judge,

with whom Associate Judge KERN joins, concurring:

I find it strange that this issue should command the time and energy of the court en banc. See District of Columbia v. Cooper, 445 A.2d 652, 657 (D.C.1982) (Kern, J., dissenting). I do so particularly because the en banc court has consumed its time to take a small step nowhere.

We have said that Harvey v. United States, 385 A.2d 36 (D.C.1978), is overruled. However, one might wonder about that, for we have, I submit, used different and con-cededly more precise words to declare the legal status of the prosecution. When an appeal is dismissed on a suggestion of death, our record, as well as the trial court record, reflects that fact. By operation of law the prosecution is abated. We now simply declare what was a legal fact anyway. No matter how we describe what we do with the case, the unavoidable fact is that there was a judgment of conviction and the defendant died before it could be affirmed or reversed. Even our en banc endeavors are entitled to their lighter moments.