2023 (October Term)
B.M. v. United States, 84 M.J. 314 (an advisory opinion is a ruling on a legal question which cannot affect the rights of the litigants in the case before the court).
United States v. Hasan, 84 M.J. 181 (an issue is moot only if resolving it would not result in a material alteration of the situation for the accused or for the government).
(in this case, the removal of the SJA as the rater of the CCA judges did not moot the issue of whether the judges were required to recuse themselves from appellant's case where the CCA had decided motions on issues pertaining to the SJA before he was removed as the judges' rater and thereby calling the validity of those decisions into question).
2021 (October Term)
United States v. Anderson, 82 M.J. 82 (appellate courts can take judicial notice of law and fact just as a military judge can under MRE 201(b))
(in this case, where the government asked an appellate court to take judicial notice of the operational tempo of appellant’s command to justify the military judge’s post-trial delay in authenticating the record of trial, the court declined to do so where the government provided no information that made indisputable the operational tempo of the command).
2020 (October Term)
United States v. Navarette, 81 M.J. 400 (during the appellate process, RCM 1203(c)(5) allows that an appellate authority may order a psychiatric evaluation in accordance with RCM 706 if a substantial question is raised as to the requisite mental capacity of the accused; to put into question his capacity under RCM 1203(c)(5), an appellant must show there is a substantial question regarding his ability to conduct and cooperate intelligently in the appellate proceedings; the rule requires that an appellant establish a nexus between his mental impairment and his ability to participate intelligently in the proceedings).
2018 (October Term)
United States v. Navarette, 79 M.J. 123 (RCM 1203(c)(5) allows that an appellate authority may order a psychiatric evaluation in accordance with RCM 706 if a substantial question is raised as to the requisite mental capacity of the accused; the requisite capacity contemplated by RCM 1203(c)(5) is the capacity to conduct and cooperate intelligently in the appellate proceedings; in the absence of substantial evidence to the contrary, the accused is presumed to have the capacity to understand and to conduct or cooperate intelligently in the appellate proceedings; thus, the rule requires that an appellant establish a nexus between his mental impairment and his ability to participate intelligently in the proceedings; if an appellate court orders an RCM 706 hearing under RCM 1203(c)(5), it is within that court’s discretion to determine the scope of the inquiry and whether to include an inquiry into an appellant’s mental capacity at the time of trial and/or at the time of the offense).
(in order to obtain an RCM 706 inquiry at the appellate level, an appellant must make a showing that there is a sufficient reason to question either his mental capacity or mental responsibility; thus, an appellant must, at a minimum, articulate how his mental condition prevents him from being able to understand or participate in the proceedings; without such a nexus, appellant does not raise a substantial question as to his mental capacity).
(in this case, appellant failed to articulate how his mental condition affected his ability to participate in his appellate proceedings, and it was not an abuse of discretion for the lower court to require him to do so).
(in this case, it was not clear that the lower court appropriately considered the degree to which appellant suffered from serious mental illness that may have impacted his decision-making capacity during the period of appellate representation where appellant was involuntarily hospitalized twice for mental health issues during the time that his appellate defense counsel was preparing his appellate brief and where a hospital discharge summary and letter from appellant’s treating psychiatrist reported appellant’s ongoing and long-term struggles with mental health; accordingly, the case was remanded to the lower court to (1) give appellate defense counsel the opportunity to make a showing of nexus between appellant’s significant and documented mental health issues and his capacity to participate in appellate proceedings; and (2) give the lower court the opportunity to more fully evaluate appellant’s RCM 1203 motion in light of counsel’s representations and all other evidence relating to appellant’s mental capacity, particularly in regard to the events that unfolded during the period of appellate representation).United States v. McGriff, 78 M.J. 487 (denial of a petition, although it allows the decision below to stand, does not suggest that the CAAF either agree or disagree with the merits of a lower court’s resolution of the case).
(denial of a petition carries no support whatsoever for concluding that the lower court either correctly or incorrectly interpreted the scope and application of an issue).
United States v. Tovarchavez, 78 M.J. 458 (an appellant gets the benefit of changes to the law between the time of trial and the time of his appeal; in other words, on direct review, an appellate court applies the clear law at the time of the appeal, not the time of trial).
2016 (October Term)
United States v. Fetrow, 76 M.J. 181 (resolution of certified questions necessitates close examination of the language of the rule).
2015 (September Term)
United States v. Cooley, 75 M.J. 247 (an accused should not be prejudiced by the appellate review process).
(when speedy trial allegations involve several specifications, each specification must be considered separately).United States v. Pease, 75 M.J. 180 (CAAF will not review certified issues when practically speaking, any action which it might take with respect to the certified issues would not materially alter the situation presented with respect either to the accused or the government).
2014 (September Term)
United States v. Bennitt, 74 M.J. 125 (an appellate court may not affirm an included offense on a theory not presented to the trier of fact).
United States v. Piolunek, 74 M.J. 107 (in US v. Barberi, 71 MJ 127 (CAAF 2012), CAAF set aside a general verdict for possession of child pornography; because four of six images presented to the members were found by the CCA not to constitute child pornography, CAAF reasoned that Stromberg v. California, 283 US 359 (1931), required it to set aside the verdict because it could not know whether the members based their verdict on those images; this case was wrongly decided; Barberi was not a case of Stromberg error; this case abrogates Barberi).
(in Stromberg v. California, 283 US 359 (1931), jurors were told that they could convict the appellant under any of three clauses of a statute; the jury returned a general verdict without specifying the clause under which it had convicted; the Supreme Court found one of the three clauses to be unconstitutional on grounds of vagueness and ruled that the conviction of the appellant, which so far as the record discloses may have rested upon that clause exclusively, must be set aside; Stromberg applies only where members may have convicted on the basis of an unconstitutional statute or legal theory; that is not this case, as neither the statute nor the legal theory presented to the members was constitutionally infirm).
(convictions by general verdict for possession and receipt of visual depictions of a minor engaging in sexually explicit conduct on divers occasions by a properly instructed panel need not be set aside after the CCA decides several images considered by the members do not depict the genitals or pubic region; this case involves a straightforward application of the “general verdict rule;” the longstanding common law rule is that when the factfinder returns a guilty verdict on an indictment charging several acts, the verdict stands if the evidence is sufficient with respect to any one of the acts charged; the record shows that the members were required to determine whether one or more of the twenty-two images constituted sexually explicit conduct based on the definition and explanation given by the military judge; the members then convicted appellant of possession and receipt of one or more depictions on divers occasions; because the CCA found that the evidence was legally and factually sufficient with respect to nineteen of the twenty-two images, and with no reason to disturb well-settled precedent on the application of the general verdict rule, appellant’s conviction stands).
2013 (September Term)
United States v. McPherson, 73 M.J. 393 (under Article 12, UCMJ, a confinee must exhaust his administrative remedies prior to judicial intervention, absent some unusual or egregious circumstance; this administrative exhaustion requirement furthers two related goals: (1) the resolution of grievances at the lowest possible level with prompt amelioration of the complaint while the prisoner suffers the condition, and (2) the development of an adequate record to aid appellate review).
United States v. Danylo, 73 M.J. 183 (the responsibility for providing the necessary resources for the proper functioning of the appellate system, including the Courts of Criminal Appeals, lies with the Judge Advocates General, who are required by Congress to establish those courts and, within the boundaries of judicial independence, to supervise them).
(all concerned with the military appellate system are expected to exercise the necessary institutional vigilance to ensure timely action on appeals, particularly those required by statute to be expedited).
United States v. Moss, 73 M.J. 64 (the decision whether to take an appeal to an appellate court is personal to an appellant).
2011 (September Term)
United States v. Barberi, 71 M.J. 127 (where a general verdict of guilt is based in part on conduct that is constitutionally protected, the Due Process Clause requires that the conviction be set aside).
(the longstanding common law rule is that when the factfinder returns a guilty verdict on an indictment charging several acts, the verdict stands if the evidence is sufficient with respect to any one of the acts charged; however, an exception to the general verdict rule is where one of the grounds of the conviction is found to be unconstitutional; if a factfinder is presented with alternative theories of guilt and one or more of those theories is later found to be unconstitutional, any resulting conviction must be set aside when it is unclear which theory the factfinder relied on in reaching a decision).
(if, under the instructions to the members, one way of committing the offense charged is to perform an act protected by the Constitution, the rule requires that a general verdict of guilt be set aside even if appellant’s unprotected conduct, considered separately, would support the verdict).
2009 (September Term)
United
States v. Lloyd, 69 M.J. 95 (there is a
general rule that a legal theory
not presented at trial may not be raised for the first time on appeal
absent
exigent circumstances).
United
States v. Morton, 69 M.J. 12 (affirming a guilty
plea based on admissions to an offense to which an accused had not in
fact
pleaded guilty and which was not a lesser included offense of the
charged
offense was inconsistent with traditional due process notions of fair
notice).
(in light of the abiding
principle of fair
notice to an accused in the context of guilty pleas and an accused’s
right to
understand to what he is pleading guilty and on what basis, the
closely-related-offense doctrine, allowing an appellate court to uphold
a
conviction when the providence inquiry clearly establishes guilt of an
offense
different from but closely related to the crime to which the accused
has
pleaded guilty, is no longer viable, overruling United States v.
Hubbard,
28 MJ 203, United States v. Epps, 25 MJ 319, United States
v. Wright,
22 MJ 25, United States v. Graves, 20 MJ 344, and United
States v.
Felty, 12 MJ 438).
(after it was determined on
appeal that the
factual basis for an accused’s guilty pleas could not support
convictions for two
forgery specifications, the application of the closely-related-offense
doctrine
to affirm two violations of making a false official statements, an
offense that
was not an LIO of forgery, violated due process).
United
States v. Lubasky, 68 M.J. 260 (a change in the
subject of the larceny at the
appellate stage of review may not be analyzed and upheld as a nonfatal
variance: under the UCMJ and the RCMs,
“variance” occurs at trial, not the appellate level; while an appellate
court
may affirm an LIO to larceny under Article 59, UCMJ, larceny from one
person is
not an LIO of larceny from another person).
(the question whether a
variance to the
ownership of property in a charged larceny specification was fatal
would be one
an appellate court could answer if the factfinder had made findings by
exceptions and substitutions; as noted in RCM 918, exceptions and
substitutions
may be made by the factfinder at the findings portion of the trial; but
nothing
in either the UCMJ or the RCMs suggests that, at the appellate level,
crossing
out the alleged property owner in a larceny specification and inserting
the
name of some other owner is permissible; RCM 918 does not grant an
appellate
court the authority to make that change; while Article 59(b), UCMJ,
provides an
appellate court with the power to approve or affirm so much of a
finding as
includes an LIO where the evidence as to the greater offense is not
legally
sufficient, that provision does not provide authority for the
proposition that
larceny from one entity is an LIO of larceny from another entity).
United
States v. Miller, 67 M.J. 385 (appellate
courts are not free to revise the
basis on which a defendant is convicted simply because the same result
would
likely obtain on retrial; to uphold a conviction on a charge that was
neither
alleged in an indictment nor presented to a jury at trial offends the
most
basic notions of due process).
United
States v. Rodriguez, 67 M.J. 110 (where a time
limitation for an
appeal is derived from a statute, the taking of an appeal within the
prescribed
time is mandatory and jurisdictional; statute-based rules of limitation
are
distinguished from those having their origin in court-created rules;
there is
jurisdictional significance in the fact that a time limitation is set
forth in
a statute because only Congress may determine a lower federal court’s
subject-matter jurisdiction; in contrast, the rule-based time limit may
be
waived because the procedural rules adopted by a court for the orderly
transaction of its business are not jurisdictional and can be relaxed
by the
court in the exercise of its discretion; an important distinction
between the
jurisdictional statute-based limitations and those created within a
court’s
internal rules is that the courts have no authority to create equitable
exceptions
to jurisdictional requirements).
Denedo
v. United States, 66 M.J. 114 (in a BCD
special court-martial, the findings
and sentence approved by the convening authority are subject to direct
review
by the court of criminal appeals of the military department concerned;
in
addition to issues of law, the scope of review at the court of criminal
appeals
extends to factual sufficiency and sentence appropriateness; the
decisions of
the court of criminal appeals are subject to direct review in the CAAF
on
issues of law; cases in which the CAAF have granted review or have
otherwise
provided relief are subject to direct review in the Supreme Court by
writ of
certiorari; a judgment as to the legality of the proceedings becomes
final upon
the completion of direct review by the court of criminal appeals and
(1)
expiration of the time for filing a petition for review with the CAAF
without
such a filing (and without the case otherwise being under review at the
CAAF),
(2) rejection of a petition for review by the CAAF, or (3) completion
of review
by the CAAF, subject to requirements regarding potential review by the
Supreme
Court; in addition, various forms of executive action are required
before the
results of a court-martial become final; once such action is taken,
Article 76,
UCMJ, provides, in pertinent part, that orders publishing the
proceedings of
courts-martial and all action taken pursuant to those proceedings are
binding
upon all departments, courts, agencies, and officers of the United
States,
subject to certain explicit exceptions).
(under
the exhaustion of remedies doctrine, courts outside the military
justice
system normally refrain from collateral review of courts-martial until
all
available military remedies are exhausted).
(as
a general matter, courts outside the military justice system will not
entertain habeas petitions by military prisoners until all available
military
remedies have been exhausted; however, the exhaustion requirement is
prudential
rather than jurisdictional; the circumstances of a particular case
might
warrant consideration of a habeas petition by an Article
(even when remedies have been
exhausted, the
scope of collateral review outside the military justice system is
constrained
by the requirement to consider whether the military justice system has
given
full and fair consideration to the claims at issue; de novo review is
appropriate only if the military justice system manifestly refused to
consider
those claims).
(a writ of error coram nobis
requests the
court that imposed the judgment to consider exceptional circumstances,
such as
new facts or legal developments, that may change the result).
(the decision of the court of
criminal appeals
on a writ petition is subject to appellate review).
(coram nobis permits
continuation of
litigation after final judgment and exhaustion or waiver of any
statutory right
of review, but only under very limited circumstances; although a
petition may
be filed at any time without limitation, a petitioner must meet
stringent
threshold requirements: (1) the alleged
error is of the most fundamental character; (2) no remedy other than
coram
nobis is available to rectify the consequences of the error; (3) valid
reasons
exist for not seeking relief earlier; (4) the new information presented
in the
petition could not have been discovered through the exercise of
reasonable
diligence prior to the original judgment; (5) the writ does not seek to
reevaluate previously considered evidence or legal issues; and (6) the
sentence
has been served, but the consequences of the erroneous conviction
persist).
United
States v. Roach, 66 M.J. 410 (the
responsibility for appointing appellate
counsel rests with the Judge Advocate General under Article 70, UCMJ,
but the
authority to control the case rests with the courts of criminal
appeals).
(if an accused becomes
unreasonable in his
demands, he may forfeit his right to any appellate assistance by
counsel).
(a court of criminal appeals
has a number of
options in the event of disagreement between counsel and client,
including: (1) direction for both client
and counsel to separately file their assignments of error; and (2) a
requirement for the Judge Advocate General to appoint substitute
counsel as a
predicate to further appellate proceedings).
(if the accused unreasonably
refuses to proceed
with assigned or substitute counsel, the court of criminal appeals
should stay
the proceedings for a period adequate to allow service upon the accused
of the
order permitting counsel to withdraw, and giving him sufficient time to
meet
the new situation; in the order releasing counsel, there should be
included a
notice that different military counsel will not be made available to
accused
and he must either represent himself or obtain civilian counsel).
(although courts of criminal
appeals have a
broad mandate to review the record of trial unconstrained by
appellant’s
assignments of error, that broad mandate does not reduce the importance
of
adequate representation; where individual civilian counsel’s failure to
act is
working to the detriment of an appellant, military appellate counsel
may not
stand by idly, because they remain responsible for protecting the
interests of
their client; as officers of the court as well as appellate defense
counsel,
military counsel have an obligation to comply with court orders and
protect the
interests of their client; in that regard, military appellate counsel
can
pursue a number of options to fulfill their obligations to the court
and their
client in the event that civilian counsel does not make a timely
filing; each
of these options would provide the court with a filing on the merits,
including
the appellant’s views, the position of military appellate defense
counsel, and
pertinent explanatory material regarding the posture of the case).
(where a court of criminal
appeals does
nothing to enforce its order that military defense counsel file an
assignment
of merits by a date certain, it errs in deciding the case without
assistance of
counsel and denies appellant the assistance of counsel guaranteed by
Article 70
and the plenary review contemplated by Article 66).
(courts of criminal appeals
have broad powers
to issue orders to counsel to ensure the timely progress of cases
reviewed
under Article 66; such actions must be taken in a manner consistent
with the
requirements of Article 70, UCMJ; when counsel appears to be
unresponsive, the
court has a variety of actions it may take, including:
(1) holding a status conference with the
parties to inquire into the reason for the delay in filing; (2)
ordering
appellate defense counsel to show cause as to why they could not file
their
brief on time; (3) warning counsel that flagrant disregard of the
court’s rules
for timely filing of briefs could result in suspension or disbarment
from
practice before the court; (4) asking the Judge Advocate General to
direct the
assignment of additional or substitute counsel; or (5) appointing
another
member of the bar to represent appellant on a pro bono basis).
(when appellant has requested
representation
on appeal that does not appear to be forthcoming, a court of criminal
appeals
must ensure that military counsel are performing their primary
obligation to
comply with court orders and protect the interests of the client).
(if the court of criminal
appeals determines
that circumstances warrant proceeding without a brief filed by
appointed
military appellate counsel, the court must first provide adequate
notice to
appellant so that appellant can determine whether to request substitute
counsel
under Article 70, obtain civilian counsel at the appellant’s expense,
or waive
the right to counsel and proceed pro se).
(where appellate defense
counsel made multiple
requests for extension of time and those filings raised substantive
issues of
concern, the court of criminal appeals erred in presuming a merits
submission
and in not providing notice to appellant and giving appellant a
reasonable
opportunity to proceed in an alternative fashion with substitute
counsel,
retained counsel, or pro se).
(even when difficulties in the
relationship
between Article 70 counsel and appellant may be attributable to
appellant,
appellant must still be given a reasonable opportunity to proceed in an
alternative fashion with substitute counsel, retained counsel, or pro
se).
United
States v. Ober, 66 M.J. 393 (an appellate
court cannot affirm a criminal
conviction on the basis of a theory of liability not presented to the
trier of
fact; to uphold a conviction on a charge that was neither alleged in an
indictment nor presented to a jury at trial offends the most basic
notions of
due process).
(while
it is appropriate for an appellate court to affirm a lesser included
offense in
a guilty plea case, an accused has a right to know
to what offense
and under what legal theory he or she is pleading guilty; this fair
notice
resides at the heart of the plea inquiry).
(in
a contested case involving a guilty plea to a clause 3 offense under
Article
134, a reviewing court must consider whether or not the prosecution
proceeded
on the premise or theory that the conduct alleged under clause 3 was
also
prejudicial to good order or service discrediting in order to affirm
lesser
included offenses under clauses 1 or 2 in the event the clause 3 theory
is
invalidated; in such a case, the members will normally have been
instructed as
to the alternative theory; this is consistent with the principle that
an
appellate court may not affirm on a theory not presented to the trier
of fact
and adjudicated beyond a reasonable doubt).
United
States v. Melson, 66 M.J. 346 (when colorable
claims of ineffective
assistance of counsel are raised on appeal, in those cases where the
government
can obtain an affidavit from trial defense counsel, the government
should
continue to endeavor to complete the appellate record promptly by
obtaining
such an affidavit and avoid any undue delay).
United
States v. Navrestad, 66 M.J. 262 (an appellate
court may not affirm
a conviction on a theory not presented to the trier of fact; to do so
offends
the most basic notions of due process, because it violates an accused’s
right
to be heard on the specific charges of which he or she is accused).
2007
(direct judicial review
provides the final judgment as to the legality of the proceedings in a
case involving a punitive separation; the determination that a
proceeding was lawful, however, does not constitute the final action on
the sentence in a case involving a punitive separation; after legal
review is completed, a punitive separation is further reviewed as a
matter of executive discretion under Article 71, UCMJ; that portion of
a sentence providing for dismissal of an officer may not be executed
until approved by the Secretary concerned; with respect to enlisted
personnel, a dishonorable or bad-conduct discharge may be ordered
executed only by the officer then exercising general court-martial
jurisdiction over the accused except as otherwise prescribed by the
Secretary concerned; that officer has the power to remit or suspend any
unexecuted portion of the sentence).
2006
United
States v. Moreno, 63 M.J. 129 (the procedures used in deciding
appeals must
comport with the demands of the Due Process and Equal Protection
Clauses of the
Constitution).
United
States v. Ribaudo, 62 M.J. 286 (an appellant is entitled to an
appeal of
right and his death prior to completion of that appeal generally
entitles him
to abatement of the proceedings ab initio).
(once a court of criminal
appeals issues
its decision under Article 66(c), UCMJ, an appellant has received his
appeal of
right and is no longer entitled to application of the policy of
abatement ab
initio, even if the period to request reconsideration of that decision
has not
expired; discretionary authority to reconsider a decision does not
alter the
conclusion that an appellant’s appeal of right is complete when the
lower court
issues its decision).
(in the event a court of
criminal appeals
grants reconsideration and withdraws its initial decision or
opinion, an
appellant’s appeal of right cannot be said to be complete until a new
decision
or opinion is issued; similarly, where a court of criminal appeals
decides to
consider a case en banc, Article 66, UCMJ, review cannot be considered
complete
until the decision of the court en banc is issued; however, there is no
basis
in law to alter the policy determination of a court of criminal appeals
that an
appellant who dies after a decision under Article 66(c), UCMJ, has been
issued
is not entitled to abatement of the proceedings against him ab initio;
to the
extent that the CAAF decisions in United States v. Roettger, 17
M.J. 453
(C.M.A. 1984) and United States v. Lange, 18 M.J. 162 (C.M.A.
1984) are
inconsistent with this decision, those cases are overruled).
(should an appellant die prior
to an
opinion on reconsideration or en banc by a court of criminal appeals,
that
appellant would have died prior to completion of his appeal of right
and
therefore be entitled to abatement ab initio; however, should a court
of
criminal appeals deny a motion for reconsideration or a hearing en
banc, the
initial decision or opinion of the court remains valid for purposes of
abatement ab initio).
(in light of the fact that the
Judge
Advocates General have not acted to establish a uniform rule for the
courts of
criminal appeals, and to ensure consistency among the service courts of
criminal appeals, the CAAF extends the following rule to each service
court: where an appellant dies after a court of criminal appeals’
decision affirming the findings and sentence under Article 66(c), UCMJ,
the
appellant is not entitled to abatement ab initio).
Loving
v. United
States, 62 M.J. 235 (every federal appellate court has a special
obligation
to satisfy itself of its own jurisdiction).
2005
United
States v. Jones, 61
M.J. 80 (this Court’s well-established approach to supplementing the
factual
record with affidavits while a case is on appeal is as follows:
if the
affidavit is factually adequate on its face to state a claim of legal
error and
the Government either does not contest the relevant facts or offers an
affidavit that expressly agrees with those facts, the court can proceed
to
decide the legal issue on the basis of those uncontroverted facts; by
considering
such unrebutted declarations, the court is not engaging in factfinding;
rather,
it is applying the law to unrebutted facts contained within the record,
which
is a standard role of an appellate court).
United
States v. Mizgala, 61 M.J. 122 (appellate review of a litigated
speedy
trial motion under Article 10, UCMJ, is not waived by a subsequent
unconditional guilty plea).
2004
United
States v. Chisholm, 59 MJ 151 (an advisory opinion
is an
opinion issued by a court on a matter that does not involve a
justiciable case
or controversy between adverse parties; courts established under
Article III of
the Constitution may not issue advisory opinions; courts established
under
Article I of the Constitution, such as this Court, generally adhere to
the
prohibition on advisory opinions as a prudential matter).
(in the present case, where the court of criminal appeals had
jurisdiction
to review the accused’s court-martial conviction under Article
66(b)(1), UCMJ,
was obligated by Article 66(b)(1) to address the validity of the
findings and
sentence of the court-martial, and was presented with a concrete
dispute
between adverse parties regarding the appropriateness of the sentence
in light
of unreasonable post-trial delay, the opinion of the court did not
constitute
an impermissible advisory opinion).
(the parties in a subsequent case are free to argue that specific
aspects of
an opinion should be treated as non-binding dicta, but such a
possibility does
not transform a decision into an inappropriate advisory opinion).
(the certified issue questions whether a pertinent portion of the
opinion
below represents a valid analysis of the law concerning the post-trial
responsibilities of a military judge, and whether that aspect of the
opinion
constitutes a precedential holding or non-binding dicta; these are the
type of
questions that may be resolved in the normal course of trial and
appellate
litigation, should such questions arise in an adversarial setting in a
future
case; in the present case, however, neither party has challenged the
post-trial
actions of the military judge who presided at the accused’s
court-martial, and
the accused has no personal stake in the outcome of any views that this
Court
might express on the post-trial responsibilities of military judges; in
the
absence of a challenge by a party to a concrete ruling by a military
judge in an
adversarial setting, the Court concludes that consideration of the
certified
issue would be premature).
2003
United
States v. Rorie, 58 MJ 399 (abatement ab initio of
a
conviction upon the death of appellant is neither appropriate nor
required at
CAAF).
(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).
(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).
(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).
(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).
(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).
(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).
2002
United
States v. Tyndale, 56 MJ 209 (although appellant’s
case
was tried while United States v. Scheffer, 44 MJ 442 (1996),
was the
state of the law with respect to admissibility of polygraph evidence in
military trials, the court determined to apply the Supreme Court
decision in United
States v. Scheffer, 523 U.S. 303 (1998), retroactively and review
the trial
judge’s admission of a government polygraph as rebuttal to defense
polygraph
evidence for plain error).
United
States v. Cravens, 56 MJ 370 (an appellate court
is not an
appropriate place to relitigate a motion to admit expert testimony
under
Mil.R.Evid. 403).
United
States v. Campbell, 57 MJ 134 (a system through
which the
military appellate courts address post-trial issues such as unlawful
command
influence and prosecutorial misconduct is well established within the
military
judicial process - military appellate courts return cases to the trial
level
when it becomes necessary to develop facts not contained within the
record of
trial, and where affidavits do not suffice).
2001
United
States v. Ward, 54 MJ 390 (the death of appellant
after
his case had been affirmed by the Court of Appeals for the Armed Forces
does
not provide a basis for reconsideration and abatement of the
proceedings
where: (1) the interests of justice have been satisfied by
resolution of
the merits of the appeal by the highest court, and first civilian
court, in the
military justice system; and (2) the petition for reconsideration and
abatement
did not demonstrate how court’s decision overlooked or otherwise failed
properly to apply the facts or law critical to the original decision).
United
States v. Dinges, 55 MJ 308 (whether a
victim/witness was
given immunity under a mistaken belief that the victim/witness was
under 16
years of age was moot where the government never called the
victim/witness to
testify).
2000
United States v. Tualla,
52 MJ 228 (under stare decisis, adherence to precedent 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 system; but stare decisis need not be
applied when precedent is unworkable or badly reasoned).
United States v. Reed,
54 MJ 37 (there is no requirement in law that appellate courts in
general or a Court of Criminal Appeals in particular must articulate
its reasoning on every issue raised by counsel).
1999
United
States v. Schuler, 50 MJ 254 (under common law doctrine
of
abatement, if the act underlying a conviction is rendered no longer
unlawful by
a new statute during direct review, the proceedings must be terminated
in favor
of the appellant; this doctrine has been restricted, however, by the
general
federal savings statute, 1 USC § 109).
(general federal savings statute, 1 USC § 109, has been interpreted
by
Supreme Court to abolish common law doctrine of “abatement” to the
extent that
the successor statute retains the basic offense and does not substitute
a right
for a crime).
United
States v. Johnston, 51 MJ 227 (when cases arrive at the
Courts
of Criminal Appeals with defective staff work, they are not ready for
review
and should be promptly returned to the convening authority before
appellate
counsel and appellate courts expend effort on reviewing other aspects
of a case
that may be affected by a proper review and action by the convening
authority).
United
States v. Gray, 51 MJ 1 (normally, appellate review is
limited
to matters presented at trial, but post-trial affidavits are
appropriate to
decide petitions for new trial under Article 73, to clarify collateral
matters
such as claims of unlawful command influence or denial of effective
assistance
of counsel, and to determine whether a post-trial sanity hearing should
be
ordered).
(Court of Military Review had basis for summarily denying
appellant’s motion
to abate proceedings where evidence before that court revealed no
permanent
deficits from appellant’s apparent drug overdose).
United
States v. Barron, 52 MJ 1 (failure to attach certain
notes as an
appellate exhibit did not preclude meaningful appellate review
where: (1)
there was no request by the defense that the notes be attached to the
record;
(2) the notes involved discovery of inculpatory matter rather than
exculpatory
information; and, (3) appellant’s claim of error could be resolved
without
specific knowledge of their content).
United
States v. Davis, 52 MJ 201 (when faced with conflicting
affidavits, a factfinding hearing must be ordered unless the appellate
filings
and the record of trial was a whole compellingly demonstrate the
improbability
of facts in an appellant’s otherwise adequate affidavit, in which case,
appellant’s factual assertions may be discounted and the legal issues
decided
on the record).