“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.