In United States v. Fosler, 70 M.J. 225, 227 (C.A.A.F. 2011), CAAF reversed nearly 60 years of military jurisprudence and decided that a specification under Article 134 fails to state an offense if it does not allege a “terminal element.” In United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012), the court limited the application of Fosler by finding that in the context of a guilty plea, such a specification is still defective, but that the protections provided by a military plea inquiry are adequate to avoid material prejudice to a substantial right. But in United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012), the court expanded Fosler (where the appellant objected at trial) to include situations where no objection is raised at trial, ruling that if the government does not cure the lack of notice caused by the defective specification during the trial, despite the lack of objection, the error materially prejudices the accused’s right to notice and the conviction must be set-aside.
The court’s decision in Humphries was a vindication for those (like our Colonel Sullivan) who wondered how the court could deny relief in Ballan when Rule for Courts-Martial 907 states that failure to state an offense is a nonwaivable ground for dismissal, and that “a charge or specification shall be dismissed at any stage of the proceedings if . . . . the specification fails to state an offense.” While CAAF rejected the edict of this provision in Humphries – eschewing automatic reversal and instead conducting a plain-error analysis – the court embraced the practical consequence of the RCM in its decision dismissing the charge.
But there is a hazard in Humphries.
American jurisprudence penalizes the failure to object at trial. In 2009, writing for a seven justice majority of the Supreme Court, Justice Scalia explained:
If a litigant believes that an error has occurred (to his detriment) during a federal judicial proceeding, he must object in order to preserve the issue. …
If an error is not properly preserved, appellate-court authority to remedy the error (by reversing the judgment, for example, or ordering a new trial) is strictly circumscribed. There is good reason for this; anyone familiar with the work of courts understands that errors are a constant in the trial process, that most do not much matter, and that a reflexive inclination by appellate courts to reverse because of unpreserved error would be fatal.
This limitation on appellate-court authority serves to induce the timely raising of claims and objections, which gives the district court the opportunity to consider and resolve them. … And of course the contemporaneous-objection rule prevents a litigant from ‘sandbagging’ the court—remaining silent about his objection and belatedly raising the error only if the case does not conclude in his favor.
Puckett v. United States, 556 U.S. 129, 134-135 (2009) (internal citations and quotation marks omitted). This contemporaneous objection rule is well-recognized in military jurisprudence, and is embodied in Military Rule of Evidence 103. Failure to object at trial either waives the error (prohibiting later relief) or forfeits the error (permitting relief only after increased scrutiny). See United States v. Olano, 507 U.S. 725 (1993); United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008). In the federal system, that increased scrutiny turns on the question of prejudice, specifically whether the error “affected the appellant’s substantial rights.” Puckett, 556 U.S. at 129. In courts-martial, the question is muddied by the fact that Article 59(a) requires a finding of “material prejudice to a substantial right of the accused,” but the underlying principles of forfeiture or waiver due to failure to object are the same.
However, the error is not the prejudice (unless the error is in the narrow class of “structural errors”). See Puckett, 556 U.S. at 142. See also The right to get away with it. Judge Ryan’s majority opinion in Humphries clearly explains that in the case of a defective Article 134 specification, the error (omitting elements on the charge sheet thereby failing to state an offense) is distinct from the prejudice (lack of notice of the terminal element(s)). Humphries, slip op. at 20. Moreover, the court makes it clear that the appellant has the burden of demonstrating both the error and the prejudice. Humphries, slip op. at 12.
This burden – that the appellant must demonstrate the prejudice in cases involving plain error – is clearly established in Supreme Court precedent:
When the defendant has made a timely objection to an error and Rule 52(a) [preserved error] applies, a court of appeals normally engages in a specific analysis of the district court record-a so-called “harmless error” inquiry-to determine whether the error was prejudicial. Rule 52(b) [plain error] normally requires the same kind of inquiry, with one important difference: It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice. … This burden shifting is dictated by a subtle but important difference in language between the two parts of Rule 52: While Rule 52(a) precludes error correction only if the error “does not affect substantial rights” (emphasis added), Rule 52(b) authorizes no remedy unless the error does “affec[t] substantial rights.”
Olano, 507 U.S. at 734-735 (citations omitted) (emphasis added). But this rule has an uncertain pedigree in military jurisprudence. Last century, CAAF ruled that “if the errors were of a constitutional dimension, the test is whether the reviewing court is able to declare a belief that it was harmless beyond a reasonable doubt.” United States v. Adams, 44 M.J. 251, 252 (C.A.A.F. 1996) (internal quotation marks omitted). However, Adams was a case with preserved error (the appellant objected at trial). Nevertheless, two years later CAAF ruled that in a plain error analysis, where constitutional error is at stake, “the burden shift[s] to the Government to show that the error was not prejudicial.” United States v. Powell, 49 M.J. 460, 465 (C.A.A.F. 1998) (citing Adams, 44 M.J. at 252). Then, for more than a decade, CAAF repeatedly cited Powell for the principle that in a plain error analysis of a constitutional error, the burden shifts to the government to disprove prejudice beyond a reasonable doubt. See United States v. Carpenter, 51 M.J. 393 (C.A.A.F 1999); United States v. Avery, 52 M.J. 495, 498 (C.A.A.F. 2000); United States v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005); United States v. Brewer, 61 M.J. 425, 430 (C.A.A.F. 2005); United States v. Paige, 67 M.J. 442, 449 (C.A.A.F. 2009); United States v. Flores, 69 M.J. 366, 369 (C.A.A.F. 2011).
Finally, in 2011, this questionable burden shift was quietly abandoned, when CAAF ruled that the appellant does in fact bear the burden of showing prejudice in a plain error case involving constitutional rights. United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011) (constitutional rights to notice and to not be convicted of an uncharged offense). Humphries continues this tradition of quietly abandoning the burden shift announced in Powell, without expressly overruling it, by stating in a footnote:
To be clear, it is Appellee’s burden to prove material prejudice to a substantial right, see Girouard, 70 M.J. at 11…
Humphries, slip op. at 21, N.10 (emphasis added). But while CAAF cited Girouard for the test for prejudice in Humphries, the court retreated from the application of this test employed in Girouard, and its nearly-companion case McMurrin, by not requiring a demonstration that but for the error, the outcome would have been different. Girouard, 70 M.J. at 11 (“But for the error Appellant would not have been convicted of negligent homicide.”); United States v. McMurrin, 70 M.J. 15, 20 (C.A.A.F. 2011) (“But for the error Appellant [sic] would not have been convicted of negligent homicide.”). This too is done quietly, and in a footnote:
We disagree that [United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004)] which held that the prejudice burden in the federal system requires the showing of a reasonable probability that, but for the error claimed, the result of the proceeding would have been different, controls this case…
Humphries, slip op. at 16, N.7 (marks and internal citation omitted). And so in Humphries, the burden is on the appellant to demonstrate prejudice, but he is not held to the full measure of that burden as recognized by both the Supreme Court and CAAF.
Three seminal Supreme Court cases involving plain error analysis emphasize the heavy burden that the appellant must overcome to show prejudice. In Olano, the Supreme Court made it clear that “the [plain] error must have been prejudicial: It must have affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734 (emphasis added). In Dominguez, the Court required a “showing of a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.” Dominguez, 542 U.S. at 81-82 (marks omitted) (emphasis added). In Puckett, the Court restated the rule from Olano, and then analyzed the government’s breach of a plea-agreement term and noted that “[t]he defendant whose plea agreement has been broken by the Government will not always be able to show prejudice, either because he obtained the benefits contemplated by the deal anyway ( e.g., the sentence that the prosecutor promised to request) or because he likely would not have obtained those benefits in any event (as is seemingly the case here).” Puckett, 556 U.S. at 141-142 (emphasis added).
Similarly, military caselaw places a heavy burden on the appellant when he fails to object at trial. In Fisher, the Court of Military Appeals stated that “[i]n order to constitute plain error, the error must not only be both obvious and substantial, it must also have had an unfair prejudicial impact on the jury’s deliberations.” United States v. Fisher, 21 M.J. 327, 328 (C.M.A. 1986) (internal quotations omitted) (emphasis added). In Riley, CAAF determined that “[improper testimony of an agent regarding the appellant's invocation of his right to remain silent] posed a heightened risk that the members felt invited, consciously or subconsciously, to infer that a truly innocent accused has nothing to hide behind assertion of these privileges. United States v. Riley, 47 M.J. 276, 280 (C.A.A.F. 1997) (emphasis added). In Powell, CAAF explained that “the military rules have a higher threshold than the federal rules in that they require plain error to materially prejudice substantial rights.” Powell, 49 M.J. at 464 (emphasis added). And, as discussed above, in McMurrin and Girouard, CAAF granted relief for a pair of convictions of a LIO that wasn’t a proper LIO based on the fact that “but for the error Appellant would not have been convicted.” Girouard, 70 M.J. at 11 (emphasis added); McMurrin, 70 M.J. at 20 (emphasis added).
But in Humphries, CAAF finds prejudice without holding the appellant to this full burden.The court finds that the required notice of the terminal element is not “extant” in the trial record because the government failed to mention a terminal element in opening or closing, the government failed to tie any specific evidence to either terminal element, and the government argued that because the married accused had sex with someone not his wife he was guilty of “adultery” (an inaccurate statement of the law that also did not draw an objection). The majority gives little weight to the fact that the trial defense counsel argued in closing argument that the government had failed to prove a terminal element, and completely ignores the fact that the Article 32 investigator’s report did address the terminal elements (a fact noted by Judge Stucky’s dissent at page 8). The court identifies no specific facts or factors that show material prejudice, but instead finds the prejudice somewhere in the “totality of the circumstances in this case.” Humphries, slip op. at 21. This analysis and result are only possible because the court specifically disclaims the need to find a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.
Judge Ryan gives three reasons for this lesser burden in footnote 7:
Dominguez-Benitez is inapposite given that: (1) any objection by [Humphries] at trial would have been futile based on the law at the time — which also alleviates the “sandbagging” concerns noted in Puckett; (2) this is a contested case, not a guilty plea case; and (3) the rights at issue are constitutional.
Humphries, slip op. at 16, N.7 (internal citation omitted). This isn’t particularly convincing. First, the issue is not the failure to object, as that would have preserved the error (as in Fosler), and even if it were, this conflates the preservation of error with the demonstration of prejudice. Next, that Dominguez involved a guilty plea and Humphries was contested is not significant, because the “but-for” test for prejudice is embodied in military jurisprudence distinct from Dominguez (McMurrin and Girouard), and the test in Olano (“must have affected the outcome”) is substantially the same. Finally, the constitutional nature of the error just doesn’t matter to the test for prejudice, because the Powell burden shift is an inaccurate, and abandoned, statement of law.
The issue, and the hazard, are that the way for an accused to get relief under Humphries is to not raise the issue at the time of trial – to sandbag the trial court and then claim lack of notice on appeal.
Consider: Had the trial defense counsel in Humphries presented evidence that the adulterous intercourse was not prejudicial or discrediting, or sought a bill of particulars, or made the terminal elements a central theme in argument, or discussed them in pretrial motions, or objected to the specification, or to the instructions, or to the trial counsel’s inaccurate statement of the law in closing, or perhaps even had the defense raised the issue at any time before the JAG’s second certification of the case to CAAF, the court might have determined that the defense had some notice that the government had to prove either or both terminal elements. Only because the defense did none of these things, and seemingly ignored the terminal element until the very end, was the court able to find that “there is not a single mention of the missing element, or of which theory of guilt the Government was pursuing, anywhere in the trial record.” Slip op. at 21.
An argument could be made that any objection would have been futile, as Fosler had not yet been decided when Humphries went to trial. However, CAAF did not tailor Humphries (or Fosler) to address such concerns, perhaps by applying Humphries only retroactively to cases already tried, or by applying Fosler only prospectively. Instead, the court’s opinion gives trial defense counsel faced with a defective specification a reason to do nothing, waiting to complain only if the accused is convicted.
That this hazard is real is already apparent in the actions of a Court of Criminal Appeals. Just over a month before CAAF decided Humphries, the NMCCA decided United States v. Hunt, 71 M.J. 538 (N-M. Ct. Crim. App. April 30, 2012) (en banc). In Hunt, the CCA rejected a plain error challenge to a defective Article 134 specification, noting that:
There was no request for a bill of particulars, no argument as to whether the elements were supported, no surprise stated or objection raised when the elements were provided to the members in instructions before counsel arguments, no confusion or indication that the defense was misled by the pleadings, and no claim, prior to the pleadings before this court, that the specification was in any way defective.
Hunt, 71 M.J. at 539 (citation omitted). Notably, in this pre-Humphries case, the CCA focused on the inaction of the trial defense counsel. But a month after Humphries, the CCA employed remarkably similar analysis – focusing on the things not done - to reach the opposite result in United States v. Key, No. 201100417 (N-M. Ct. Crim. App. July 10, 2012) (unpublished):
The pretrial proceedings did not make any mention of the terminal element. During the opening statement, the Government did not mention the element nor did they mention that they were going to introduce any direct evidence that might satisfy the element. No direct evidence was put on by the Government as to the service discrediting nature of the conduct or the prejudice to the good order and discipline of the armed services. No mention of the missing element was made in the closing arguments and since this was a military judge alone trial, there were no instructions given.
Key, slip op. at 10. In Key the NMCCA totally reverses course from Hunt, and focuses on the inaction of the government. Both Hunt and Key were tried pre-Fosler, and both involve defective 134 specification. But in Hunt the CCA looked for some indication that the result would have been different had the specification not been defective, while in Key the court looked for some action by the government that might alleviate the error.
This fixation on the government in a plain error prejudice analysis, led by CAAF’s decision in Humphries, only breeds inaction by the defense, since had the defense raised the issue of a defective specification, or presented an aggressive defense of the terminal elements, it would have prompted a government response, undercutting the basis for relief.
In 2002, Chief Judge Crawford reminded the majority of CAAF that “the Supreme Court has time and again emphasized that preventing sandbagging is critically important in determining whether to notice plain error.” United States v. Baker, 57 M.J. 330, 338 (C.A.A.F. 2002) (Crawford, C.J. dissenting). The Hazard of Humphries is the disregard of those words.
• AFCCA’s first opinion
• AFCCA’s second opinion
• Appellant’s (government) brief
• Appellee’s brief
• Cross-appellant’s brief (Fosler issue)
• Cross-appellee’s (government) brief (Fosler issue)
• Oral argument audio
• Blog post: Argument recap
• CAAF’s opinion
• Blog post: Opinion analysis
• Blog post: The Hazard of Humphries