The Appellant dies, now what

Many years ago, I had a client kill himself at the DB after his Dubay hearing but before he got the good news--the Dubay judge found IAC and recommended a new trial. His case was abated — it was a mandatory review case, and briefs had been filed. His wife and children did get his death benefits (there was a time when SGLI was questionable, but that resolved because there's no "suicide" clause. There is history and law on this issue of death-on-appeal. But first, AFFCA has entered an order in United States v. Cox, No. ACM 26038 (A.F. Ct. Crim. App. Jun. 5, 2026) (Order) on the question--now what.

On 10 October 2025, a special court-martial composed of officer members convicted Appellant, contrary to her pleas, of one specification of wrongful use of a Scheduled I controlled substance in violation of Article 112a, Uniform Code  of Military Justice, 10 U.S.C. § 912a. She was then sentenced by the military judge to hard labor without confinement for 75 days, restriction to the limits of  Ramstein Air Base for 60 days, reduction to the paygrade of E-4, and a reprimand. Also on 10 October 2025, Appellant signed an Air Force (AF) Form  304, Request for Appellate Defense Counsel, requesting representation by an appellate defense counsel. On 4 November 2025, the convening authority took no action on the findings and the sentence. On 12 November 2025, the military judge signed the entry of judgment. On 27 January 2026, Appellant received the Government’s notice of her right to appeal before this court pursuant to Article 66(b)(1)(A), UCMJ, 10 U.S.C. § 866(b)(1)(A). Appellant died on 22 March 2026.

On 20 April 2026, this court received a notice of direct appeal from counsel for Appellant in the above-styled case, pursuant to Article 66(b)(1)(A), UCMJ. Counsel stated this notice of appeal was filed on Appellant’s behalf, who died on 22 March 2026. We docketed the case on 23 April 2026. In our notice of docketing, the court deferred decision as to timeliness of Appellant’s appeal awaiting the record of trial and whether this court has jurisdiction to hear this appeal under Article 66, UCMJ, given that Appellant died before the notice of direct appeal was filed with this court. The court received the record of trial on 6 May 2026, and based on the procedural background of this matter, we accept Appellant’s notice of direct appeal as timely.

Now what? The abatement issue is novel under the new statute, as it permits an appellant to obtain a non-jurisdictional CCA review. There is a bit of history of death-on-appeal issues. My rough count suggests at least 20 military cases over the years.

United States v. Jackson, 38 M.J. 744 (A.C.M.R. 1993).

Berry v. Judges of the United States Army Court of Military Review, 37 M.J. 158 (C.M.A. 1993). Berry died before his time to petition CMA/CAAF expired, and the court applied abatement under the older rule. 

United States v. Robinson, 60 M.J. 923 (A. Ct. Crim. App. 2005). (ACCA initially affirmed, but Robinson had died before ACCA issued that initial decision. On reconsideration/vacatur/abatement, ACCA abated the proceedings. CAAF later described Robinson as correctly decided because “death during the pendency of an appeal of right abates the proceedings ab initio.”

​United States v. Ward, 54 M.J. 390 (C.A.A.F. 2001) (No abatement where CAAF had completed full review and appellant died during the reconsideration period).

United States v. Rorie, 58 M.J. 399 (C.A.A.F. 2003). Overruled Berry to the extent is was inconsistent with Rorie. Probably the best case for a general overview of the issue.

Nonetheless, abatement is not the universal policy in the federal and state courts. For a number of years, the United States Supreme Court's position on abatement lacked clarity. 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, 46 L. Ed. 2d 531, 96 S. Ct. 579 (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, 28 L. Ed. 2d 200, 91 S. Ct. 858 (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, 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. 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, 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.

58 M.J. 401-02.

Your browser does not support viewing this document. Click here to download the document.

Updating with United States v. Galliano, CGCCA.

Your browser does not support viewing this document. Click here to download the document.