In an article published in the February 2015 edition of The Army Lawyer, Colonel James A. Young, USAF (Ret.) considers CAAF’s January 2014 decision in United States v. Moss, 73 M.J. 64 (C.A.A.F. 2014) (CAAFlog case page), in the context of the fugitive disentitlement doctrine. The article is titled Absent Without Leave on Appeal and the Fugitive Disentitlement Doctrine, and it is available here.
CAAF’s opinion in Moss was something of a novelty. The appellant was charged with desertion, but two weeks before trial she absconded. She was subsequently tried, convicted, and sentenced in absentia, and the CCA affirmed. CAAF then granted review, but the appellant remained absent and the court split 3-2 to find that the appellant’s continued absence (and her failure to ever clearly authorize an appeal to CAAF) deprived the court of jurisdiction because “the decision to appeal to [CAAF] is personal to an appellant.” 73 M.J. at 69.
Col Young analyzes the majority and dissenting opinions in Moss, and then considers the fugitive disentitlement doctrine:
In Ortega-Rodriguez v. United States, the Supreme Court noted that “[i]t has been well settled for well over a century that an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his appeal.” The justifications for such a rule are: (1) concerns about the enforceability of the appellate court’s judgment against the fugitive; (2) escape is “tantamount to waiver or abandonment” of the right to appeal; (3) “[i]t discourages the felony of escape and encourages voluntary surrender”; and (4) “[i]t promotes the efficient, dignified operation” of the appellate court. But there are limitations to the court’s discretion to dismiss. There must be “some connection between a defendant’s fugitive status and the appellate process, sufficient to make an appellate sanction a reasonable response.”
Young, supra, at 5. He concludes that military caselaw muddies the waters of the applicability of this doctrine in court-martial appeals, and that “CAAF should adopt this discretionary doctrine.” Young, supra, at 7.
Yet one can only hope that CAAF will not soon have an opportunity to do so.