“No procedural principle is more familiar to this Court than that a constitutional right, or a right of any other sort, may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” United States v. Olano, 507 U.S. 725, 731 (1993) (citing Yakus v. United States, 321 U.S. 414, 444 (1944)).

In the absence of an objection at trial, some issues are waived (prohibiting relief on appeal) and others are forfeited. Appellate courts will only grant relief on a forfeited issue if there is plain error. To show plain error:

Appellant has the burden of demonstrating: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the accused.” United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F., 2011).

The test for prejudice is a significant barrier to relief. It is not enough that there was error in the trial, because  “[a]ny trial error can be said to impair substantial rights if the harm is defined as being convicted at a trial tainted with fill-in-the-blank error.” Puckett v. United States, 556 U.S. 129, 142 (2009). In other words, the error is not the prejudice; there must be both some wrong and some harm caused by the wrong. Otherwise there is chaos, because if any mistake at trial can overturn a conviction, there would be no convictions.

In United States v. Fosler, 70 M.J. 225 (C.A.A.F., 2011), CAAF ruled that it was error for the military judge to deny the appellant’s trial-stage motion to dismiss an Article 134 specification (adultery) that did not allege a terminal element. Lance Corporal Fosler contested his guilt at trial before members, and the trial judge’s denial of his motion to dismiss affected substantial rights, chief among them “[t]he Constitution[al] protect[ion] against conviction of uncharged offenses through the Fifth and Sixth Amendments.” Fosler, 70 M.J. at 229. Courts-martial exist in a notice-pleading jurisdiction, meaning that a charge must notify the accused of the offense and its elements (satisfying the 6th Amendment), and protect him from double-jeopardy (satisfying the 5th Amendment), and Fosler claimed inadequate notice at trial and pleaded his innocence, creating a clear basis for relief.

But in the seven months since CAAF issued its opinion in Fosler, the court has received numerous claims that are far more speculative. Instead of an accused who professes his innocence and objects to a specification as insufficient, the court faces cases where the accused made no objection and, with the assistance of counsel and the illumination of the military judge, admitted his guilt to every element, often in exchange for some sentence limitation. They now come to CAAF as appellants, seeking relief because the specifications to which they pleaded do not state offenses under the newly-stated Fosler rule. But there is no doubt of their guilt, they failed to make the required timely assertion before the tribunal, and they received valuable consideration for their pleas.

Moreover, as a matter of law, the “unconditional guilty plea generally waives all pretrial and trial defects that are not jurisdictional or a deprivation of due process of law.” United States v. Jones, 69 M.J. 294, 299 (C.A.A.F., 2011). At best their objections are forfeit, requiring prejudice to a substantial right before they are entitled to relief. But no substantial right is at stake when there is no question of guilt, other than the right to be acquitted of a crime of which you are undoubtedly guilty. No interest of justice is served by invalidating an entirely just and accurate conviction, especially one obtained as part of a bargain between the government and the accused.

Unlike the exclusionary rule (for example) that is intended to deter police misconduct, applying the technical pleading rule from Fosler to invalidate convictions entered in accordance with unconditional guilty pleas fails to advance any interest of justice. Moreover, it protects no substantial right, other than the absurd notion of a right of a guilty man to go free.

12 Responses to “The right to get away with it”

  1. Cap'n Crunch says:

    In my view, an unconditional guilty plea case, except for issues involving the voluntariness and/or providence of the plea itself, shouldn’t be touched by appellate courts.  Insofar as Fosler cases, I think that NG/contested cases, with a objection, should come back.  No objection, look at plain error/prejudice.  And Guilty cases, waived.  In other words, I think Fosler got worked out.  Just my opinion (and I tend to lean far more on the defense side than Mr. Spilman).

  2. justsomeguy says:

    An accused pleads not guilty to a 134 specification that fails to state the terminal element.  A panel finds the accused guilty and the case is being reviewed on appeal.  Which element was the accused found guilty of beyond a reasonable doubt?

  3. Anonymous says:

    The accused would not be left free to “get away with it.”  He could be retried since no offense was ever before the trial court–hence the claim of “failure to state an offense.”  On a different note, you have to give CAAF credit for being so willing to dump its prior precedent.  First Fosler overturns 60 years worth of allowing the terminal element to be omitted.  And now Ballan casts aside the rule that you cannot test a defective spec for prejudice.  Of course, Fosler and Ballan are incompatible (see Baker’s dissent).  But still.  
     

  4. Zachary Spilman says:

    And now Ballan casts aside the rule that you cannot test a defective spec for prejudice.

    “Technically, a claim that the indictment does not charge an offense may be raised on a motion in arrest of judgment … But the courts of the United States long ago withdrew their hospitality toward technical claims of invalidity of an indictment first raised after trial, absent a clear showing of substantial prejudice to the accused — such as a showing that the indictment is so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had.” United States v. Watkins, 21 M.J. 208, 209-210 (CMA, 1986) (citing United States v. Thompson, 356 F2d 216, 226 (2d Cir., 1965) (cert. denied, 384 U.S. 964 (1966))).

     

  5. stewie says:

    That’s just it, all of the hub-bub about Fosler from those who think like Mr. Spillman was that it overturned 60 years of precedent, but then this decision comes along and says, you know that part where we said failure to state an offense was more or less always fatal because it was about notice at the time of charging? Well…now you just need notice before the close of court. Remember the part about major changes requiring the consent of the accused? (which fixing a spec that fails to state an offense would be). Well, now you don’t actually need consent, just the accused saying he understands the change.
    The only way an accused “gets away with it” is if the government decides not to retry them with a properly charged specification. But there are plenty of things that do not require the accused to object at trial that are still no gos. It used to be failure to state an offense, it is still, for now, jurisdictional claims, and a few other things.
    I think there is in fact value in requiring that the accused is not faced at literally the last moment with a change to what he or she thought they were walking into the court-room to plead guilty to and the decision that comes therein.
    Judge Baker is correct that this decision is logically inconsistent with the basis for Fosler.
    As for unconditional guilty pleas not being touched? Yeah, can’t remotely buy off on that one.
     

  6. stewie says:

    “a showing that the indictment is so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had”
    Isn’t that exactly what the court found? the indictment (charge sheet) was so obviously defective that it fails to state an offense.
    Thus, it requires the military judge to fill in the information required to make it a stated offense, and if they don’t then one assumes it would still fall under a Fosler analysis vice a Ballan analysis.
    In short, contests and GPs without a trial judge’s “save” are treated the same, yes?
     

  7. Anonymous says:

     
    Yes, Watkins, like Marker and Herndon (terminal element can be omitted), missed the boat.  Read the quote from Watkins carefully–if the spec can reasonably be read to state an offense, why are we talking about prejudice?  It doesn’t make sense.  Also look at:
    United States v. Crafter, 64 M.J.209 (C.A.A.F. 2006): a facially deficient specification cannot be saved by reference to proof at trial.
    United States v. Mayo, 12 M.J. 286 (C.M.A. 1982): a specification fatally flawed because it does not contain an allegation of fact essential to proof of the offense charged is not restored to legal life by the government’s production at trial of evidence of the fact.
    United States v. Fleig, 37 C.M.R. 64(C.M.A. 1966): a specification that omits an essential element of the offense is a nullity.

  8. Zachary Spilman says:

    if the spec can reasonably be read to state an offense, why are we talking about prejudice?

    We’re talking about prejudice because there was no objection at trial (forfeiting the issue).

    The error at trial (that was forefited) isn’t that the spec must reasonably state an offense (the Watkins test), it’s that the spec must state or necessarily imply all of the elements. In Watkins, as in these new trailers, the spec doesn’t state or necesssarily imply, and there is error (and let’s call it plain). However, the Watkins test isn’t a test for error, it’s a test for prejudice (“prejudice to the accused – such as a showing…”).

  9. Peanut Gallery says:

    We’re talking about prejudice because there was no objection at trial (forfeiting the issue). The error at trial (that was forefited) isn’t that the spec must reasonably state an offense (the Watkins test), it’s that the spec must state or necessarily imply all of the elements. In Watkins, as in these new trailers, the spec doesn’t state or necesssarily imply, and there is error (and let’s call it plain). However, the Watkins test isn’t a test for error, it’s a test for prejudice (“prejudice to the accused – such asa showing…”).

    I think you missed Anon @ 2238’s point.  If Fleig et al stand for the proposition that failure to state an offense renders a nullity, how can that ever be forfeited?  It either states an offense or it doesn’t.  As C.J. Baker pointed out, why does the fact that it’s a guilty-plea somehow make it different?  If it doesn’t state an offense when it’s on the charge sheet, then there isn’t a crime.  Nobody is getting away with anything…save for the government by shoddy pleading.  If a 92 spec didn’t indicate that the order was lawful or in effect at the time, how does pleading guilty change anything?  You can’t plead guilty to violating an order that was unlawful or not in effect. 

  10. Zachary Spilman says:

    Well then let’s read that caselaw:

    In United States v. Crafter, 64 M.J. 209 (C.A.A.F., 2006), CAAF found that the specification was not fatally defective, but was susceptible to multiple meanings (and then affirmed the conviction). The court’s dicta regarding defective specifications, that ignores Watkins, is unpersuasive.

    United States v. Mayo, 12 M.J. 286, 294 (C.M.A. 1982): “As the allegations of the specification are supported by evidence, and the trial judge instructed the court members they had to find, beyond a reasonable doubt, that the accused’s conduct was prejudicial to good order and discipline [which was not alleged in the specification], the findings of guilty are unassailable.” Also, Watkins came along 4 years later.

    United States v. Fleig, 37 C.M.R. 64 (C.M.A. 1966): It’s unclear if this accused objected at trial, or even how he pleaded. This case was a derelict – ignored since 1990 – until the NMCCA cited it in 2010 in Fosler (to support the opposite of your position), and CAAF did the same in its 2011 Fosler opinion. Now it’s apparently fashionable to cite it in appellate briefs; hipsters everywhere.

    Hardly a compelling case for such a drastic remedy.

  11. stewie says:

    absolutely agree PG, and interestingly enough your point is what puts the cherry on top. This is only an issue for 134 cases, no one would or is arguing that this idea can apply to enumerated offenses…that you could leave out taking from a larceny case for example and just fill it in at the guilty plea.

  12. Peanut Gallery says:

    absolutely agree PG, and interestingly enough your point is what puts the cherry on top. This is only an issue for 134 cases, no one would or is arguing that this idea can apply to enumerated offenses…that you could leave out taking from a larceny case for example and just fill it in at the guilty plea.

    And as J. Ryan said in Ballan, the terminal element of Art 134 is just like any element of any offense under the UCMJ

    Why not just come right out and tell us all: “If you plead guilty to a 134, you also forfeit any deficiencies in pleading.”  

    or . . .

    “We take it back.  The terminal element is NOT just like any other element.”

    or . . .

    “We seem to have painted ourselves into a corner.  Chief Judge, do you mind handing us some fresh primer?”