United States v. Rorie

UNITED STATES, Appellee
v.
Gregory G. RORIE, Specialist
U.S. Army, Appellant
No. 02-0949
Crim. App. No. 20000964
United States Court of Appeals for the Armed Forces
Argued April 8, 2003
Decided July 1, 2003
ERDMANN, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and GIERKE, J., joined. EFFRON, J., filed a
separate dissenting opinion in which BAKER, J., joined.
Counsel
For Appellant: Lieutenant Colonel E. Allen Chandler, Jr.
(argued); Colonel Robert D. Teetsel and Major Jeanette K.
Stone (on brief); and Captain Fansu Ku.
For Appellee: Captain Christopher Graveline (argued); Lieutenant
Colonel Margaret B. Baines, Lieutenant Colonel Lauren B.
Leeker, and Major Jennifer H. McGee (on brief).
Amicus Curiae: Ming-Hsuan Chung (law student)(argued); Cary
Berkeley Kaye, Esq. (supervising attorney), Steven H.
Goldblatt, Esq. (director), and Scott Weidenfeller (law
student)(on brief) – For the Georgetown University Law
Center, Appellate Litigation Program.
Amicus Curiae: Eugene R. Fidell, Esq. (argued); Kevin J. Barry,
Esq., Stephen A. Saltzburg, Esq. and Philip D. Cave, Esq. (on
brief) – For the National Institute of Military Justice.
Amicus Curiae: Lieutenant Frank L. Gatto, JAGC, USNR (argued)
Colonel R. M. Favors, USMC (on brief) – For the Appellate
Government Division, Navy-Marine Corps Appellate Review
Activity.
Military Judge: Michael J. Hargis
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Rorie, No. 02-0949/AR
Judge ERDMANN delivered the opinion of the Court.
Appellant, Specialist Gregory G. Rorie, was tried by general
court-martial at Fort Polk, Louisiana. Pursuant to his pleas, he
was convicted of three specifications of wrongful distribution of
cocaine in violation of Article 112a, Uniform Code of Military
Justice [hereinafter UCMJ], 10 U.S.C. § 912a (2000). Appellant
was sentenced to confinement for two years and reduction to the
grade of Private E-1. On June 8, 2001, the convening authority
approved the sentence. On June 28, 2002, the Army Court of
Criminal Appeals affirmed the findings and sentence in a
memorandum decision. United States v. Rorie, ARMY 20000964 (A.
Ct. Crim. App. June 28, 2002).
Appellant died on August 31, 2002. On September 27, 2002,
Appellant’s detailed appellate defense counsel filed a Petition
for Grant of Review and a Motion to Abate with this Court. Upon
consideration of the Petition for Grant of Review and the Motion
to Abate, we specified and ordered briefs on the following two
issues:
ISSUE I
WHETHER THE FILING OF A PETITION FOR GRANT OF
REVIEW BY APPELLATE DEFENSE COUNSEL WAS
SUFFICIENT TO CONFER JURISDICTION ON THIS
COURT OR WHETHER JURISDICTION WAS RETAINED BY
THE UNITED STATES ARMY COURT OF CRIMINAL
APPEALS.
ISSUE II
IN THE EVENT THAT THIS COURT DOES HAVE
JURISDICTION, WHETHER THE PROCEEDINGS SHOULD
BE ABATED.
Prior to argument the parties agreed that this Court had
jurisdiction over the question of whether the proceedings and
2
United States v. Rorie, No. 02-0949/AR
conviction in this case should be abated ab initio. Therefore,
we proceed directly to consideration of the second specified
issue. For the reasons that follow, we hold that abatement ab
initio is neither appropriate nor required at this Court.
FACTS
The United States Army Court of Criminal Appeals reviewed
Appellant’s conviction and affirmed the findings and sentence in
a memorandum decision on June 28, 2002. On July 1, 2002,
Appellant’s initial appellate defense counsel prepared
correspondence to Appellant advising him that the Army court had
rendered a decision in his case. On July 5, 2002, the Deputy
Clerk of the Army court sent notice of the Army court decision to
Appellant by certified mail, return receipt requested.
On July 12, 2002, the United States Postal Service returned
the certified mail with the notation “Forward Time Exp Rtn to
Send.” Constructive service was therefore effected on July 5,
2002, as the appellate defense counsel had received a copy of the
decision and the decision had been deposited in the United States
mail to Appellant on that date. Article 67(b)(2), UCMJ, 10
U.S.C. § 867(b)(2) (2000).
Appellant had 60 days within which to petition this Court
for a grant of review, a period that would have expired on
September 3, 2002. On August 31, 2002, Appellant sustained
massive head trauma in an automobile accident and died. Upon
learning of Appellant’s death, appellate defense counsel sought
and obtained a copy of the death certificate. Subsequently, on
3
United States v. Rorie, No. 02-0949/AR
September 27, 2002, appellate defense counsel filed a Petition
for Grant of Review and a Motion to Abate the proceedings.
Upon consideration of the Petition for Grant of Review and
the Motion to Abate, this Court specified the previously noted
issues and directed that the parties file briefs.
BACKGROUND
Principals of Abatement ab initio
Appellant’s motion for abatement rests upon the general
concept that the death of an accused after conviction but before
completion of an appeal of right abates the entire proceeding
from its inception. If granted, abatement ab initio has the
effect of “eliminating or nullifying” the proceeding or
conviction “for a reason unrelated to the merits” of the case.
Black’s Law Dictionary 2 (7th ed. 1999). “[I]t is as if the
defendant had never been indicted and convicted.” United States
v. Logal, 106 F.3d 1547, 1551-52 (11th Cir. 1997).
Two reasons are commonly advanced in support of abatement ab
initio upon the death of a criminal defendant/appellant. The
first reason advanced relates to the interests of justice. The
7th Circuit Court of Appeals has noted that “the interests of
justice ordinarily require that [a defendant] not stand convicted
without resolution of the merits of his appeal” and echoed the
Supreme Court’s view that such an appeal “is an ‘integral part of
[our] system for finally adjudicating [the] guilt or innocence
[of a defendant]’.” United States v. Moehlenkamp, 557 F.2d 126,
128 (7th Cir. 1977)(quoting Griffin v. Illinois, 351 U.S. 12, 18
4
United States v. Rorie, No. 02-0949/AR
(1956)). See also United States v. Pogue, 19 F.3d 663, 665-66
(D.C. Cir. 1994).
Death arguably disrupts appellate adjudication and may leave
an unreviewed conviction that is unsound, unlawful, or unjust.
Confidence may be lacking in such convictions; they should not
serve as the basis for finality. See Logal, 106 F.3d at 1552
(“[A] criminal conviction is not final until resolution of the
defendant’s appeal as a matter of right”); Pogue, 19 F.3d at 665-
66 (rejecting arguments against abatement ab initio even when the
conviction is based on a guilty plea). Thus, where “death has
deprived the accused of his right to [an appellate] decision,”
abatement serves the interests of justice by removing criminal
convictions that do not have the necessary basis for confidence
to support finality. Moehlenkamp, 557 F.2d at 128.
The second reason advanced is that the penal purposes of a
criminal proceeding are defeated by the death of the defendant.
Charges, trial, conviction, and sentences are directed at and
punish the individual. Those purposes can not be served after
the defendant has passed away. See United States v. Asset, 990
F.2d 208, 211 (5th Cir. 1993); United States v. Pomeroy, 152 F.
279, 282 (C.C.S.D.N.Y. 1907). “[S]huffling off the mortal coil
completely forecloses punishment, incarceration, or
rehabilitation, this side of the grave at any rate.” United
States v. Dudley, 739 F.2d 175, 177 (4th Cir. 1984).
Application by Federal and State Courts
Nonetheless, abatement is not the universal policy in the
federal and state courts. For a number of years, the United
5
United States v. Rorie, No. 02-0949/AR
States Supreme Court’s position on abatement lacked clarity.1 In
Durham v. United States, 401 U.S. 481 (1971), the Court
acknowledged its previous “ambiguity,” id. at 482, and adopted
the policy of abatement ab initio:
The unanimity of the lower federal courts
which have worked with this problem over the
years . . . is impressive. We believe they
have adopted the correct rule. Accordingly,
the motion for leave to proceed in forma
pauperis and the petition for a writ of
certiorari are granted. The judgment below
is vacated and the case is remanded to the
District Court with directions to dismiss the
indictment.
Id. at 483. Justice Blackmun dissented. In his dissent he found
a significant distinction in that the decedent was not exercising
an appeal of right. Id. at 484 (Blackmun, J., dissenting).
A few years later and without discussion, the Supreme Court
abruptly changed its position on abatement in Dove v. United
States, 423 U.S. 325 (1976). The entire opinion of the Court
consisted of the following:
The Court is advised that the petitioner died at New Bern,
N.C., on November 14, 1975. The petition for certiorari is
therefore dismissed. To the extent that Durham v. United
States, 401 U.S. 481 (1971), may be inconsistent with this
ruling, Durham is overruled.
Id. at 325. While the appeal to the Supreme Court was dismissed,
the underlying criminal conviction was left intact. Thus,
1
See, e.g., Singer v. United States, 323 U.S. 338, 346
(1945)(Court dismissed writ and “remanded to the District Court
for such disposition as law and justice require.”); United States
v. Johnson, 319 U.S. 503, 520 n.1 (1943)(dismissed writ and left
“disposition of the fine that was imposed to the Circuit Court of
Appeals.”); Menken v. Atlanta, 131 U.S. 405, 405
(1889)(considered the cause “abated” and ordered writ of error
dismissed); List v. Pennsylvania, 131 U.S. 396, 396 (1888)(“cause
has abated”).
6
United States v. Rorie, No. 02-0949/AR
abatement ab initio has not been a policy at the United States
Supreme Court since 1976.
On the other hand, the Federal Circuit Courts of Appeals
unanimously apply the policy when an accused dies before those
courts complete appellate review of a federal conviction.2 The
circuit courts have adhered to a policy of abatement ab initio
despite the Supreme Court’s decision in Dove, largely on the
basis that an appeal to the circuit court is a matter of right,
2
See United States v. Wright, 160 F.3d 905, 908 (2d Cir.
1998)(“[W]e normally vacate the judgment and remand to the
district court with instructions to dismiss the indictment.”);
United States v. Christopher, 273 F.3d 294, 297 (3d Cir.
2001)(“The rule of abatement is well established, and we adopt it
as the law in this Court. Thus, where a convicted criminal
defendant dies after filing an appropriate appeal, the conviction
will be abated and the case remanded to the District Court with
instructions to dismiss the indictment.”); United States v.
Dudley, 739 F.2d 175, 176 (4th Cir. 1984)(“requiring ultimately
that case be remanded . . . with direction to vacate ab initio,
as abated, the criminal proceedings.”); United States v. Asset,
990 F.2d 208, 210 (5th Cir. 1993)(“It is well established in this
circuit that the death of a criminal defendant pending an appeal
of his of her case abates, ab initio, the entire criminal
proceeding.”); United States v. Toney, 527 F.2d 716, 720 (6th
Cir. 1975)(conviction vacated and “remand[ed] the cause to the
District Judge with instructions to dismiss the indictment
against” the accused.); United States v. Moehlenkamp, 557 F.2d
126, 128 (7th Cir. 1977)(court followed its “established practice
by dismissing [the] appeal as moot, vacating the conviction . . .
, and remanding the case to the district court for dismissal of
the outstanding indictment[.]”); United States v. Littlefield,
594 F.2d 682, 683 (8th Cir. 1979)(“The death of a defendant in a
criminal case during the pendency of an appeal renders moot the
appeal and abates the cause against the deceased[.]”); D’Argento
v. United States, 353 F.2d 327, 328 (9th Cir. 1965)(“[T]he
prosecution abates on the death of the defendant.”); United
States v. Davis, 953 F.2d 1482, 1486 (10th Cir. 1992)(“dismiss
[the] appeal and remand the criminal judgment . . . to the
district court with instructions to vacate the judgment and
dismiss the underlying indictment.”); United States v. Logal, 106
F.3d 1547, 1551-52 (11th Cir. 1997)(“This circuit has adopted the
general rule that the death of a defendant during the pendency of
his direct appeal renders his conviction and sentence void ab
initio; i.e., it is as if the defendant had never been indicted
and convicted.”); United States v. Pogue, 19 F.3d 663 (D.C. Cir.
1994)(adopting the general policy of abatement ab initio).
7
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whereas certiorari is discretionary review before the Supreme
Court. See, e.g., United States v. Christopher, 273 F.3d 294,
296 (3d Cir. 2001); United States v. Pauline, 625 F.2d 684, 685
(5th Cir. 1980); Moehlenkamp, 557 F.2d at 128.
The determination of whether and how much of a criminal
conviction to abate in the state courts varies considerably, with
most courts adopting some form of abatement.3 It is worth
noting, however, that a number of states have recently changed
their policies, moving away from abatement ad initio. See, e.g.,
State v. Salazar, 945 P.2d 996, 1003 (N.M. 1997)(noting that
several states have substantially changed or abandoned their
policies of abatement ab initio); State v. Clements, 668 So. 2d
980 (Fla. 1996); State v. Makaila, 897 P.2d 967 (Haw. 1995);
People v. Peters, 537 N.W.2d 160 (Mich. 1995).
Application by this Court
This Court has followed the policy of abatement ab initio
since 1953. In United States v. Mosher, 14 C.M.R. 229 (C.M.A.
1953)(summary disposition), we noted that the petitioner was
3
Tim A. Thomas, Annotation, Abatement of State Criminal Case by
Accused’s Death Pending Appeal of Conviction – Modern Cases, 80
A.L.R. 4th 189, 191-200 (1990 & Supp. 2002), identified seven
categories of state court policies on abatement: abatement ab
initio when a defendant/appellant dies pending resolution of his
appeal; abatement ab initio where the appeal in issue is an
appeal of right; abatement ab initio where the court has granted
a discretionary application for review, thereafter treating the
case as if the appellant had been given an appeal of right; the
case is not abated and the appeal may be prosecuted; the case is
not abated ab initio, but the appeal may not be prosecuted; a
personal representative may be substituted to avoid abatement ab
initio; or, the appeal abates without the superior court
addressing whether the proceedings are abated ab initio.
8
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deceased and “ordered that this cause be, and the same is, hereby
abated, and it is further ordered that the Petition for Grant of
Review be, and the same is, hereby dismissed.” Since these early
cases, we have routinely applied the policy of abatement ab
initio in summary fashion when an appellant died while his case
was pending at this Court.4
In United States v. Kuskie, 11 M.J. 253 (C.M.A. 1981), we
specifically addressed the question of whether cases pending
before this Court should be abated ab initio when a
petitioner/appellant dies. This Court adhered to the policy of
abatement ab initio and distinguished our review authority from
that of the United States Supreme Court:
It is true that this Court has referred to
itself as “the supreme court of the military
judicial system.” McPhail v. United States,
1 M.J. 457, 462 (C.M.A. 1976). Such a
characterization in itself, however, is not
sufficient to equate a military accused’s
right to petition this Court for review with
a petition for certiorari to the Supreme
Court. Such an equation ignores the
substantial differences in statutory language
between Article 67(b)(3) and 28 U.S.C.
1254(1). See 28 U.S.C. 1291. Moreover, it
is indifferent to the critical role this
Court plays in direct review of courts-
martial (Noyd v. Bond, 395 U.S. 683, 694, 89
S. Ct. 1876, 1882, 23 L. Ed. 2d 631 (1969)) as
the court of last resort in the military
justice system. Schlesinger v. Councilman,
420 U.S. 738, 751, 95 S. Ct. 1300, 1309, 43
L. Ed. 2d 591 (1975). Such distinctions are
central to a proper understanding of the Dove
decision. United States v. Pauline, 625 F.2d
4
See, e.g., United States v. McGill, 55 M.J. 462 (C.A.A.F.
2001)(summary disposition); United States v. Brown, 34 M.J. 22
(C.M.A. 1991)(summary disposition); United States v. Flannigan, 6
M.J. 157 (C.M.A. 1978)(summary disposition); United States v.
Johnson, 3 M.J. 391 (C.M.A. 1977)(summary disposition); United
States v. Ferguson, 23 C.M.A. 699, 50 C.M.R. 905 (1975)(summary
disposition).
9
United States v. Rorie, No. 02-0949/AR
684 (5th Cir. 1980); See Disposition of a
Federal Criminal Case When Defendant Dies
Pending Appeal, 13 U.Mich.L.J.Ref. 143, 147-
48 (Fall 1979). Moreover, in cases decided
by this Court since Dove v. United States,
supra, we have not adopted this approach to
the deceased-appellant situation. See United
States v. Flannigan, 6 M.J. 157 (C.M.A.
1978); United States v. Day, 5 M.J. 998
(C.M.A. 1976); United States v. Johnson, 3
M.J. 391 (C.M.A. 1977).
Id. at 254-55 (footnotes omitted).
Nevertheless, this Court’s policy on abatement ab initio
has not been without dissent. In Kuskie, Judge Cook disputed
that there were “substantial differences” between the Supreme
Court’s certiorari authority and this Court’s petition authority,
noting that both had the same “substantive nature as a permissive
appeal.” Id. at 256 (Cook, J., dissenting).
The lack of unanimity on this policy was further evidenced
in Berry v. The Judges of the United States Army Court of
Military Review, 37 M.J. 158 (C.M.A. 1993). There, a majority of
this Court abated Berry’s conviction ab initio because the
conviction was not final within the meaning of Article 71(c),
UCMJ, 10 U.S.C. § 871(c) (2000). Berry died seven days prior to
the expiration of his time within which to petition this Court.
While the majority focused on Article 71, it again rejected the
argument that this Court’s petition authority was akin to the
discretionary nature of certiorari review at the Supreme Court.
Rather, the majority found this Court’s authority “more
analogous” to that of the Federal Circuit Courts of Appeals. Id.
at 160.
Judges Crawford and Gierke dissented. In addition to
finding the facts of Berry’s case to be distinct from those
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United States v. Rorie, No. 02-0949/AR
present in Kuskie, the dissent noted a number of reasons
supporting a conclusion that abatement ab initio was not a
required consideration at this Court: (1) appellate jurisdiction
of this Court is similar to that of the Supreme Court; (2)
finality under Article 71(c) is an administrative matter that has
no impact upon determining whether an appeal was of right or
discretionary; and (3) the practice in this Court is not “more
analogous” to the Federal Circuit Courts of Appeals where the
appeal is one of right. 37 M.J. at 162-65 (Crawford, J., with
whom Gierke, J., joins, dissenting).
More recently, in United States v. Ward, 54 M.J. 390
(C.A.A.F. 2001), this Court declined to reconsider and abate the
proceedings where the appellant died seven days after this Court
had issued a decision in his case. In Ward, the Court focused on
the “interests of justice ordinarily require that [a defendant]
not stand convicted without resolution of the merits of an
appeal.” Id. at 391 (quoting Pogue, 19 F.3d at 665). We found
that the interests of justice were satisfied by “full review” and
that “abatement ab initio due only to death” was not required.
Id. at 391.
DISCUSSION
Resolution of the issues presented in this case requires not
only an inquiry into the principles of abatement ab initio, but
also an inquiry into the doctrine of stare decisis, as a change
in the Court’s position on abatement would overrule established
precedent of this Court.
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United States v. Rorie, No. 02-0949/AR
Abatement ab initio
As noted, case law sets forth two primary reasons in support
of the policy of abatement ab initio. The first purpose relates
to the interests of justice and dictates that a defendant should
“not stand convicted without resolution of the merits of his
appeal[.]” Moehlenkamp, 557 F.2d at 128 (citing Griffin, 351
U.S. at 18). See also Pogue, 19 F.3d at 665; Asset, 990 F.2d at
210-11. The post-trial and appellate processes under the Uniform
Code of Military Justice afford a military defendant with a
clemency review and three levels of appeal following a conviction
at the trial level: an initial appeal to a Court of Criminal
Appeals; an appeal to this Court; and an appeal to the U.S.
Supreme Court. See Articles 60, 66, 67, and 67a, UCMJ, 10 U.S.C.
§§ 860, 866, 867, 867a (2000).
We believe 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. See United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982).
The Courts of Criminal Appeals are unique and are vested
great power to do justice. United States v. Gibson, 51 M.J. 198,
202 (C.A.A.F. 1999). We have often expressed our confidence in
the Courts of Criminal Appeals and in the ability and expertise
of the “experienced and mature judges of the Courts of Criminal
Appeals[.]” United States v. Boone, 49 M.J. 187, 195 (C.A.A.F.
1998)(quoting United States v. Cook, 46 M.J. 37, 39 (C.A.A.F.
12
United States v. Rorie, No. 02-0949/AR
1997)). See also United States v. Eversole, 53 M.J. 132, 133
(C.A.A.F. 2000)(expressing confidence in the “expertise” of the
Court of Criminal Appeals).
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. See Asset, 990
F.2d at 211; Pomeroy, 152 F. at 282. Unquestionably, upon the
death of a military defendant traditional punishments such as
confinement and forfeiture become moot. However, we believe
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. We do 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.
Another consideration to weigh in analyzing this issue is
the impact of abatement ab initio on victims’ rights. In 1990
Congress adopted the “Victims of Crime Bill of Rights”. 42
U.S.C. § 10606 (2000). Subsequent to this Court’s decisions in
Kuskie and Berry, the Department of Defense revised Dep’t of
Defense, Directive 1030.1, Victim and Witness Assistance
(November 23, 1994) [hereinafter Directive 1030.1], to adopt the
provisions of 42 U.S.C. § 10606 as matters of Department of
Defense policy. United States v. Spann, 51 M.J. 89, 91 (C.A.A.F.
13
United States v. Rorie, No. 02-0949/AR
1999). Directive 1030.1 recognized the role of victims in the
criminal justice process and specifically provided:
Court-martial convening authorities and clemency and parole
boards shall consider making restitution to the victim a
condition of granting pretrial agreements, reduced sentence,
clemency, and parole.
Directive 1030.1, at para. 4.5.
It is not uncommon for pretrial agreements to contain
restitution provisions. We also note that adjudged and approved
fines, which create a debt, may have compensatory aspects. For
example, an adjudged fine may be based upon the fact that an
accused was unjustly enriched by offenses against the Government.
See Rule for Courts-Martial 1003(b)(3) discussion.
As noted, when abatement ab initio is applied “it is as if
the defendant had never been indicted and convicted.” Logal, 106
F.3d at 1551-52. Particularly where there has been one level of
appeal of right, abatement ab initio at this level frustrates a
victim’s legitimate interest in restitution and compensation.5
We find further support for our decision not to adopt a
policy of abatement ab initio in the nature of this Court’s
petition jurisdiction. The unique statutory jurisdiction of this
Court is distinct from both that of the Supreme Court and the
Circuit Courts of Appeals. We believe, however, that this
Court’s petition authority is more akin to the writ authority
5
The Supreme Court of Michigan recently recognized the
significance of victims’ rights when it substantially modified
its own approach to abatement in People v. Peters, 537 N.W.2d 160
(Mich. 1995). The Michigan Supreme Court stated that it was “not
persuaded that abatement ab initio, when applied to compensatory
sanctions, is consistent with Michigan law since the 1985
enactment of the Michigan Crime Victim’s Rights Act[.]” Id. at
161.
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exercised by the Supreme Court, particularly with respect to the
primary sources of appeals, the writ of certiorari and the
petition for grant of review. See 28 U.S.C. §§ 1254(1), 1257;
Article 67(a)(3).
While Appellant and Amicus National Institute of Military
Justice urged otherwise, there can be little doubt that this
Court exercises discretionary review with respect to our petition
docket. “[T]he question of what cases are heard by the [Court of
Appeals for the Armed Forces] is a matter of internal management,
properly left to that Court’s decision in accordance with
guidelines expressed in that Court’s rules.” S. Rep. No. 98-53,
at 34 (1983).6 The discretionary nature of this Court’s petition
jurisdiction is more analogous to the Supreme Court’s
discretionary certiorari practice. We do not deprive an
appellant of any review of right by changing our policy with
respect to abatement ab initio.
Circuit courts that have reviewed the policy of abatement ab
initio in the context of the Supreme Court’s rejection of such a
policy have focused on a fundamental difference in the
proceedings before the Supreme Court and the circuit courts.
Appeals to the Circuit Courts of Appeal are of right. See 28
U.S.C. §§ 1291-1292 (2000). On the other hand, writs of
certiorari are granted on a discretionary basis. See 28 U.S.C.
§§ 1254, 1257 (2000). Thus, “[t]he prevailing practice of the
6
See also Eugene R. Fidell, Guide to the Rules of Practice and
Procedure for the United States Court of Appeals for the Armed
Forces 126-28 (10th ed. 2001)(making several references to the
discretionary nature of this Court’s petition review).
15
United States v. Rorie, No. 02-0949/AR
Supreme Court to dismiss petitions for certiorari upon the death
of the convicted defendant . . . does not readily transfer to the
Courts of Appeals.” Christopher, 273 F.3d at 296. See also
Pauline, 625 F.2d at 685; Moehlenkamp, 557 F.2d at 128.
After the Supreme Court abandoned its policy of abatement ab
initio in Dove, a number of courts focused on the nature of the
Supreme Court’s discretionary certiorari jurisdiction as a
critical factor in determining whether to maintain their own
policies of abatement. Among the several Circuit Courts of
Appeals to look at this aspect of the issue, there was consensus
that an appellant’s appeal of right to the circuit courts was a
substantial distinction that supported maintaining a policy of
abatement ab initio. See, e.g., Christopher, 273 F.3d at 296;
United States v. Davis, 953 F.2d 1482, 1486 (10th Cir. 1992);
United States v. Schumann, 861 F.2d 1234, 1236 n.1 (11th Cir.
1988); Moehlenkamp, 557 F.2d at 128.
Finally, we note 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 have we adopted it as part of
the Rules of Practice and Procedure for this Court. Absent
direction from Congress or the President on this matter, we are
convinced that abatement ab initio is not a policy compelled by
the interests of justice or the jurisdictional underpinnings of
this Court.
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Stare Decisis
We recognize that our holding today is contrary to our
existing precedent and are not unmindful of the importance that
the doctrine of stare decisis plays in our decision-making. See
United States v. Tualla, 52 M.J. 228, 230-31 (C.A.A.F. 2000);
United States v. Boyett, 42 M.J. 150, 154-56 (C.A.A.F. 1995).
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.” Payne v. Tennessee, 501 U.S. 808, 827 (1991).
The doctrine plays a key role in a number of areas. The
doctrine is “most compelling” where courts undertake statutory
construction. Hilton v. South Carolina Public Ry. Comm’n, 502
U.S. 197, 205 (1991); Patterson v. McLean Credit Union, 491 U.S.
164, 172 (1989). It comes into play in constitutional
interpretation where “correction through legislative action is
practically impossible[.]” Payne, 501 U.S. at 828 (quoting
Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 407 (1932)
(Brandeis, J., dissenting)). But see Harris v. United States,
536 U.S. 545, 556 (2002)(stare decisis less important in
constitutional cases). The doctrine is important in “property
and contract rights, where reliance interests are involved[.]”
Payne, 501 U.S. at 828. Additionally, the doctrine plays a role
in ensuring that decisions of superior courts are not ignored or
overturned by inferior courts. See United States v. Allbery, 44
M.J. 226, 227-28 (C.A.A.F. 1996).
17
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A decision to alter a policy of abatement ab initio does not
fall into any of the categories identified above as important
areas within which to preserve precedent under stare decisis.
The issue before this Court is not one of constitutional or
statutory interpretation, nor have we been presented with any
“reliance interests” of Appellant.
“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’.” Tualla, 52 M.J. at 231
(quoting Payne, 501 U.S. at 827). Admittedly, the current policy
of abatement cannot be considered “unworkable.” We believe,
however, that the weight of reason, as discussed in the preceding
section of this opinion, supports a change in the rule.
First, Berry focused in part upon the impact of finality
under Article 71. We believe that this focus was misplaced. 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 we 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 second asserted premise for abatement ab initio at this
Court is the distinction drawn between the nature of review by
petition at this Court and review by certiorari at the Supreme
Court. See Berry, 37 M.J. at 160; Kuskie, 11 M.J. at 254-55.
The mere possibility that this Court will exercise its discretion
18
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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. See 28 U.S.C. § 1291 (2000). See
also Berry, 37 M.J. at 164 (Crawford, J., dissenting).
Thus, we believe that this Court may alter its policy in
regard to abatement ab initio without being constrained by stare
decisis. We are less constrained by the doctrine of stare
decisis in this instance because we are 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. “The
determination of a disposition to be made of proceedings cast
into limbo by the death of the defendant-appellant appears, to
us, to be one of policy only.” Whitehouse v. State, 364 N.E.2d
1015, 1016 (Ind. 1977).
CONCLUSION
We therefore adopt the rule established by the U.S. Supreme
Court in Dove. When an appellant dies pending an Article
67(a)(3) appellate review by this Court, we will dismiss or deny
the petition but will not abate the action ab initio.7 Berry and
Kuskie are hereby overruled to the extent that they are
inconsistent with this decision. In view of our conclusion that
an appeal to the Courts of Criminal Appeals is an appeal of
right, we leave to those courts or the Judge Advocates General to
7
As the issue of abatement of an appeal involving capital
punishment or an appeal certified by a Judge Advocate General are
not before the Court, those issues will be reserved for another
day. See Article 67(a)(1)-(2), Uniform Code of Military Justice,
10 U.S.C. § 867(a)(1)-(2) (2000).
19
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establish the parameters of a policy of abatement in the event
that an appellant dies pending review at a Court of Criminal
Appeals.
DECISION
The Motion to Abate the Proceedings is denied, and the
Petition for Grant of Review is dismissed.
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EFFRON, Judge, with whom BAKER, J., joins (dissenting):
The lead opinion overrules fifty years of precedent on the
subject of abatement. Today’s decision is contrary to the
express terms of the Uniform Code of Military Justice
[hereinafter UCMJ], the consistent treatment of abatement by our
Court dating from the earliest days of practice under the Code,
the treatment of cases in the federal civilian courts of
appeals, and the prevailing practice under state law.
Statutory requirements under the UCMJ
This case is about the statutory provisions of the UCMJ
governing finality. In particular, this case addresses the
issue of finality in cases subject to review in our Court when
the death of the Appellant occurs before statutory proceedings
have been completed in our Court. The UCMJ contains three
pertinent statutory provisions. When the findings and sentence
of a court-martial have been approved by a Court of Criminal
Appeals, the decision of that court becomes the “final judgment
as to the legality of the proceedings” under Article 71(c),
UCMJ, 10 U.S.C. § 871(c) (2000) without further review by our
Court if one of the following conditions has been met: (1) the
service member withdraws an appeal of a non-capital case; (2)
the service member does not file a timely petition for review
United States v. Rorie, No. 02-0949/AR
and the case is not otherwise under review by our Court; (3) our
Court rejects a petition for review.
Although the finality language in Article 71(c) refers to
cases in which a punitive separation has been adjudged, Rule for
Courts-Martial 1209 [hereinafter R.C.M.], makes it clear that
the same considerations apply to all courts-martial reviewed by
the Courts of Criminal Appeals, regardless of the nature of the
sentence:
R.C.M. 1209. Finality of courts-martial
(a) When a conviction is final. A court-
martial conviction is final when:
(1) Review is completed by a Court of
Criminal Appeals and –
(A) The accused does not file a
timely petition for review by the Court
of Appeals for the Armed Forces and the
case is not otherwise under review by
that court; and
(B) A petition for review is
denied or otherwise rejected by the
Court of Appeals for the Armed
Forces[.]
R.C.M. 1209 is consistent with the finality provisions of
Article 76, UCMJ, 10 U.S.C. § 876 (2000), and the direct review
provisions of Article 67(a), UCMJ, 10 U.S.C. § 867(a) (2000).
Article 76 provides that the proceedings of a court-martial are
“final and conclusive” only when “approved, reviewed, or
affirmed as required by [the UCMJ].” Article 67(a) describes
two classes of cases within our jurisdiction that involve
2
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mandatory review – capital cases and cases submitted to our
Court upon certification of the Judge Advocate General
concerned. Article 67(a)(1)-(2). With respect to a third class
of cases – petitions by a service member - Article 67 provides:
(a) The Court of Appeals for the Armed
Forces shall review the record in -
. . .
(3) all cases reviewed by a Court of
Criminal Appeals which, upon petition of the
accused and on good cause shown, the Court
of Appeals for the Armed Forces has granted
a review.
The use of the term “shall review” in Article 67 is significant.
Compare 10 U.S.C. § 101(e)(1)(2000)(“‘shall’ is used in an
imperative sense”) with id. § 101(e)(2)(2000)(“‘may’ is used in
a permissive sense.”) Although Article 67(a)(3) provides our
Court with much greater flexibility than the Article III courts
of appeals in terms of deciding which cases to review, we do not
have the unfettered discretion of the Supreme Court to deny
review regardless of the merits of the case. Compare 28 U.S.C.
§ 1291 (2000)(providing the Article III courts of appeals with
“jurisdiction of appeals from all final decisions of the
district courts” except where a statute provides for direct
review in the Supreme Court) with 28 U.S.C. §§ 1254(1), 1257-
1259 (2000)(describing cases that “may be reviewed” by the
Supreme Court by writ of certiorari). As noted in a treatise on
3
United States v. Rorie, No. 02-0949/AR
military law, “Counsel familiar with Supreme Court practice
should not confuse the ‘good cause’ standard [under Article 67]
with certiorari. Those courts that may review a case by issuing
a writ of certiorari are not required to hear a case merely
because a party demonstrates viable legal issues requiring
relief.” Legal Services, Dep’t of the Army, Pamphlet No. 27-
173, Trial Procedure 247 (1992).
The combination in Article 67 of mandatory language (“shall
review”) and a flexible standard (“upon good cause shown”)
reflects congressional intent to provide service members with a
significant opportunity to obtain review by an independent,
civilian tribunal, without requiring our court to grant full
review in every case. See United States v. Byrd, 53 M.J. 35,
36-37 (C.A.A.F. 2000)(citing H.R. Rep. No. 81-491, at 6-7
(1949); S. Rep. No. 97-146, at 36 (1981)). See also S. Rep. No.
98-53, at 34 (1983).
Statutory interpretation
Courts-martial exercise limited, statutory jurisdiction
over specific persons. See Articles 2-3, UCMJ, 10 U.S.C.
§§ 802, 803 (2000); see R.C.M. 201(b)(4). The accused is the
defendant at a court-martial, and the UCMJ does not authorize
substitution of another person as a party to the court-martial
if the accused dies either during or after trial.
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Shortly after the UCMJ was enacted, our Court confronted
the question of what action could be taken under the Code when
an appellant died prior to final review of the legality of the
proceeding. In United States v. Mosher, 14 C.M.R. 229 (1953),
the Court was informed through a motion for abatement that the
appellant had died subsequent to action on the case by the Board
of Review – the predecessor of today’s Courts of Criminal
Appeals. Our Court granted the motion for abatement and
dismissed the petition for grant of review. Id. at 229. For
over fifty years, our Court consistently has granted motions for
abatement when the appellant dies prior to issuance of a
decision by our Court, as noted in the lead opinion. ___ M.J.
(9).
Stare Decisis
Reliance on precedent as a critical guidepost in deciding
cases – the doctrine of stare decisis – is essential to the fair
administration of justice. As the Supreme Court has emphasized,
“it is indisputable that stare decisis is a basic self-governing
principle within the Judicial Branch, which is entrusted with
the sensitive and difficult task of fashioning and preserving a
jurisprudential system that is not based upon ‘an arbitrary
discretion.’” Patterson v. McLean Credit Union, 491 U.S. 164,
172 (1989)(quoting The Federalist No. 78, at 490 (A.
5
United States v. Rorie, No. 02-0949/AR
Hamilton)(H. Lodge ed. 1988). Adherence to precedence “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.” Payne
v. Tennessee, 501 U.S. 808, 827 (1991).
Because stare decisis is a principle of judicial decision
making, not a rule, a precedent may be overruled when it is
“unworkable or . . . badly reasoned.” Id., quoted in United
States v. Tualla, 52 M.J. 228, 231 (C.A.A.F. 2000). The role of
precedent is particularly important in matters involving
statutory interpretation:
[A]ny departure from the doctrine of stare
decisis demands special justification . . .
. [T]he burden borne by the party advocating
the abandonment of an established precedent
is greater where the Court is asked to
overrule a point of statutory construction .
. . for here, unlike in the context of
constitutional interpretation, the
legislative power is implicated, and
Congress remains free to alter what we have
done.
Patterson, 491 U.S. at 172-73 (citations and internal quotations
omitted).
The lead opinion would overturn a half-century of
consistent precedent on the ground that our precedent is based
upon a “policy” that is not “compelled by the interests of
6
United States v. Rorie, No. 02-0949/AR
justice or the jurisdictional underpinnings of this Court.” __
M.J. (17). The issue before us, however, does not involve a
choice among competing public policy alternatives. Our
precedent involves a matter of statutory interpretation, in
which the legal policy preferences of the judiciary yield to
precedent unless the proponents of change demonstrate that the
interpretation is either unworkable or badly reasoned.
As the lead opinion acknowledges, abatement under our
precedent is not unworkable. __ M.J. (18). The lead opinion’s
suggestion that “the weight of reason supports a change in the
rule” of abatement, falls far short of demonstrating that the
rule is “poorly reasoned.” __ M.J. (18).
The statutory basis for our current precedent was reviewed
in Berry v. Judges of the United States Army Court of Military
Review, 37 M.J. 158, 159-60 (C.M.A. 1993)(discussing the
finality provisions in Article 71.) The opinion noted that our
precedent was consistent with the prevailing practice in the
Article III courts of appeals and the statutory language
governing review of petitions in our Court. Id. at 160
(discussing Article 67(a)(3)).
The lead opinion offers several reasons for overruling
Berry. First, the lead opinion states that abatement is not
required by the express language of Article 71. ___ M.J. (18).
Under the lead opinion’s theory, the decision of the Court of
7
United States v. Rorie, No. 02-0949/AR
Criminal Appeals would constitute the final judgment of the
legality of the proceedings in this case even though the
decision was not final under the express requirements of Article
71. The majority’s assertion that nothing in Article 71
“compels” the statutory interpretation set forth in Berry does
not provide the appropriate test for overruling precedent. The
issue before us is whether our precedents are so poorly reasoned
that they must be overturned. Given the consistency between
abatement, the language of Article 71, and the President’s
interpretation of the pertinent statutes in R.C.M. 1209, that
case has not been made.
Second, the lead opinion states that our precedent is
premised on “the distinction drawn between the nature of review
by petition at this Court and review by certiorari at the
Supreme Court.” __ M.J. (18)(citing Berry, 37 M.J. at 160,
United States v. Kuskie, 11 M.J. 253, 254-55 (C.M.A. 1981)).
Neither case, however, held that our precedent on abatement was
premised upon the distinction between the nature of our review
and the nature of review in the Supreme Court; rather, in each
case the merits of the analogy between review in our Court and
review in the Supreme Court was raised by the Government as an
argument for overturning our precedent. Each opinion explained
why the Government’s argument was unpersuasive. See Berry, 37
M.J. at 160; Kuskie, 11 M.J. at 254-55.
8
United States v. Rorie, No. 02-0949/AR
The lead opinion reiterates the suggestion, rejected in
Berry and Kuskie, that we should overturn our precedents by
analogizing review in our Court to review in the Supreme Court.
___ M.J. (6-8, 14-16). The opinion notes that the Supreme Court
in the 1970s first adopted a policy of abatement, ___ M.J.
(6)(citing Durham v. United States, 401 U.S. 381 (1971)), and
then abandoned it five years later without explanation, ___ M.J.
(6)(citing Dove v. United States, 423 U.S. 325 (1976)). The
lead opinion also observes that the Article III courts of
appeals have continued consistently to apply abatement, even in
the aftermath of Dove, noting that several courts have explained
the difference in terms of the distinction between the
discretionary review in the Supreme Court and appeal as a matter
of right in the courts of appeals. ___ M.J. (7-8). Building
upon the distinction between abatement in the courts of appeals
and non-abatement in the Supreme Court, the lead opinion
suggests that because our review of petitions for “good cause”
under Article 67(b)(3) is more analogous to discretionary review
in the Supreme Court than appeal as of right in the circuit
courts, we should follow the Supreme Court’s non-abatement
policy, as advocated by prior dissenting opinions in this Court.
___ M.J.(14-16).
There are several problems with this argument. First, the
fact that Berry and Kuskie did not involve unanimous opinions
9
United States v. Rorie, No. 02-0949/AR
does not provide a reason for abandoning our precedents. In
this regard, the Supreme Court’s consideration of the
relationship between prior dissents and stare decisis in
Patterson is instructive. In Patterson, the Court considered
whether to overrule Runyon v. McCrary, 427 U.S. 160
(1976)(interpreting a federal statute as prohibiting racial
discrimination in private schools admissions). With respect to
the effect of prior divisions on stare decisis, the Court said:
The arguments about whether Runyon was
decided correctly in light of the language
and history of the statute were examined and
discussed with great care in our decision.
It was recognized at the time that a strong
case could be made for the view that the
statute does not reach private conduct, but
that view did not prevail. Some Members of
this Court believe that Runyon was decided
incorrectly, and others consider it correct
on its own footing, but the question before
us is whether it ought now to be overturned.
491 U.S. at 171-72 (citations omitted)(declining to overturn the
Court’s precedent). We are in a similar situation. The issue
is not whether we now agree that Berry was decided correctly or
incorrectly, “the question before us is whether it ought now to
be overturned.”
Second, the issue is not whether our practice is so
analogous to review in the Supreme Court that we should adopt a
“policy” of abatement. The issue before us is a matter of
statutory interpretation. The current case, like the similar
10
United States v. Rorie, No. 02-0949/AR
cases we have reviewed over the past 50 years, requires us to
interpret the mandate of Article 67(b)(3) –- that we “shall
review” petitions “upon good cause shown” -- in light of the
finality provisions of Article 71 and Article 76. See also
R.C.M. 1209.
Third, the issue is not how we should resolve this question
as a matter of first impression. Under the doctrine of stare
decisis, the burden is on those who would change the precedent
to demonstrate that our Court’s interpretation of the law is so
poorly reasoned or unworkable that it should be abandoned.
Fourth, the brief memorandum decision in Dove applying a
policy of non-abatement in the Supreme Court and the circuit
court opinions applying a policy of non-abatement cited in the
lead opinion, ___ M.J. (7-8, 16) involve specific statutes cast
in terms quite different from the applicable provisions of the
UCMJ. Compare 28 U.S.C. § 1254(1)(wholly discretionary review
in the Supreme Court), and 28 U.S.C. §§ 1291-1292 (2000)(appeal
as of right to the circuit courts), with Article
67(b)(3)(providing that our Court “shall review” petitions “upon
good cause shown”) and Article 71(c)(setting forth express
conditions governing final determinations as to the legality of
court-martial proceedings). At best, the comparison between the
practice of non-abatement at the Supreme Court and abatement at
the courts of appeals provides fodder for a policy debate
11
United States v. Rorie, No. 02-0949/AR
regarding the competing merits of each approach. What is
important from the perspective of the current case is that the
differing practices in the Article III courts demonstrate that
they have not rejected abatement, and that the policies
developed in those courts do not take into account the specific
statutory provisions of the UCMJ. In the context of stare
decisis, where the proponents of abandoning precedent must show
that our Court’s position is “poorly reasoned,” the differing
views of the Article III courts do not demonstrate that our
prior cases have misconstrued the interrelationship among
Articles 67, 71, 76 and R.C.M. 1209.
Finally, the Supreme Court also has emphasized the
relationship between precedent and congressional action for
purposes of considering stare decisis. In Hilton v. South
Carolina Public Ry. Comm’n, 502 U.S. 197 (1991), the Court
considered whether to overturn the precedent of Parden v.
Terminal Railway of Alabama Docks Department, 377 U.S. 184
(1964)(construing various federal statutes as permitting a cause
of action against a state-owned railroad in state court). In
the course of concluding that the precedent should not be
overturned, the Court said:
Congress has had almost 30 years in which it
could have corrected our decision in Parden
if it disagreed with it, and has not chosen
to do so. We should accord weight to this
continued acceptance of our earlier holding.
12
United States v. Rorie, No. 02-0949/AR
502 U.S. at 202. With respect to the issue before us, Congress
has had over 50 years to overturn Mosher and has chosen not to
do so. Of particular note, the year after our 1981 decision in
Kuskie, the Department of Defense submitted to Congress a
comprehensive legislative proposal, including revision of the
appellate review process, which led to enactment of the Military
Justice Act of 1983, Pub. L. No. 98-209, 97 Stat. 1393. See S.
Rep. No. 98-53, at 1, 7-11 (1983). The legislation, which
included amendments to Articles 67 and 71, did not address
abatement. Congressional inaction, which may stem from many
causes, should be viewed with caution for purposes of statutory
interpretation. Under Hilton, however, such inaction provides
additional grounds for concluding that the proponents of
changing our interpretation of the UCMJ have not surmounted the
hurdle imposed by the doctrine of stare decisis, particularly in
light of the broad language used by the President in the
implementation of the pertinent statutory provisions. See
R.C.M. 1209.
State court practice
The lead opinion observes that while most states apply some
form of abatement, a number of states recently have moved in a
different direction. ___ M.J. (8). A number of those states,
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United States v. Rorie, No. 02-0949/AR
however, as a matter of state law, permit an appeal to proceed
on the merits, based on the interests of society, the defendant,
and the defendant’s estate in appellate resolution of the case.
See, e.g., Gollott v. State, 646 So. 2d 1297 (Miss. 1994); State
v. McDonald, 424 N.W.2d 411 (Wis. 1988); State v. McGettrick,
509 N.E.2d 378 (Ohio 1987); State v. Jones, 551 P.2d 801, 803-04
(Kan. 1976); Commonwealth v. Walker, 288 A.2d 741, 742 (Pa.
1972). Such a result, however, is not possible under the UCMJ,
which makes no provision for substitution of a party. As a
result, the lead opinion finds it necessary in the present case
to dismiss the appeal, contrary to the approach of a significant
number of states that have modified their abatement rules. The
inconsistency between the majority’s decision and the approach
of those states underscores the need for any change in this area
to reflect comprehensive legislative consideration rather than
piecemeal judicial action.
Policy considerations
The lead opinion offers a number of policy reasons for not
applying abatement, including confidence in the capabilities of
the Courts of Criminal Appeals, societal interests in the
preservation of a judgment of conviction, and the impact on
victims rights. ___ M.J. (12-14). These are important policy
concerns, and should be given full consideration in the
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United States v. Rorie, No. 02-0949/AR
appropriate forum in terms of balancing the relative merits of
abatement and appellate review. Given the wide variety of means
in which abatement has been applied or modified at both the
state and federal level, however, these concerns do not resolve
the issue of how any change should be implemented in the
military justice system. Consideration of a new approach to
abatement requires attention to a number of difficult questions,
including:
(1) If the accused dies while the case is pending review by
the convening authority, should the decision of the court-
martial constitute the final judgment as to the legality of the
proceedings?
(2) If the death occurs prior to a decision by a Court of
Criminal Appeals, should the decision of the court-martial and
action of the convening authority constitute the final judgment?
(3) If death occurs following a decision by the Court of
Criminal Appeals, should there be an opportunity for further
review on the merits through substitution of a party?
(4) If death occurs while a case is under mandatory review
by our Court under Article 67(b)(1) (capital cases) or Article
67(b)(2) (certified cases), can the review proceed on the
merits?
(5) Assuming one party is the United States in such a case,
who is the other party?
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These are critical questions, all opened but left
unanswered by the lead opinion. Our current precedent may or
may not represent the best policy choice, but it is clear,
workable, and based on statute. Under the lead opinion, we face
the possibility of years of litigation to resolve conflicting
decisions at the command level, by individual services, and by
the Courts of Criminal Appeals. Because this is a matter of
statutory interpretation, we should sustain our precedent,
relying on Congress to address these concerns and balance the
interests of appellants, their families, victims, the armed
forces, and society at large.
16