In The Hazard of Humphries, I wrote extensively about CAAF’s decade-and-a-half-long struggle to adopt the Supreme Court’s test for plain error, which is error that may be remedied on appeal despite being forfeited by the failure to make a timely objection at trial (as opposed to an error that is preserved by a timely objection, or error that is waived by an intentional relinquishment at trial).

On Monday, December 3, 2012, after CAAF hears oral argument in United States v. Bowersox, No. 12-0398/AR, the court will hear oral argument in United States v. Clifton, No. 12-0486/AR. At first glance, Clifton looks like a case about when it is error for a military judge to deny a court-martial member’s request to call additional witnesses. However, I believe that this case is really about CAAF’s slow-but-steady move to the full, four-prong test for plain error:

First, there must be an error or defect – some sort of deviation from a legal rule – that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the district court proceedings. Fourth and finally, if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error – discretion which ought to be exercised only if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings. Meeting all four prongs is difficult, as it should be.

Puckett v. United States, 556 U.S. 129, 135, (2009) (marks and citations omitted). See also United States v. Humphries, 71 M.J. 219, 220 (C.A.A.F. 2012) (Stucky, J. dissenting) (“There are four elements to the Supreme Court’s plain error doctrine.”).

In 2009, Specialist Clifton was convicted by a general court-martial composed of members with enlisted representation, contrary to his pleas, of making a false official statement and aggravated assault, in violation of Articles 107 and 128, UCMJ. He was sentenced to confinement for six months and a bad-conduct discharge. His convictions were for actions leading to injuries sustained by his infant daughter, and at trial his defense was that the injuries were really caused by his wife.

After closing arguments, one of the enlisted members asked to recall two witnesses: a medical provider and the Appellant’s wife. The request to recall a medical provider was disapproved because the military judge found that all of the testifying medical providers had “been permanently excused,” and the request to call the Appellant’s wife was disapproved because the judge found that “we have closed all of the evidence.” Trial and Defense Counsel were asked if they had any objections to these denials, and both stated that they had none.

The Army CCA reviewed the court-martial, and considered an assignment of error relating to the military judge’s denial of the member’s request. The CCA found that “the absence of a defense objection to the military judge’s actions does not equate to waiver.” Slip op. at 3. The court then considered the error, and found that the military judge abused his discretion in denying the member’s request based on a lack of evidence in the record that the judge considered the four factors required by United States v. Lampani, 14 M.J. 22, 26 (C.M.A. 1982) (difficulty and delay; materiality; possibility of a claim of privilege; and, objections of the parties).

However, the court found that the error did not prejudice the Appellant (and likely benefited him, considering the strength of the Government’s case), noting:

Under Article 59(a), UCMJ, in order to grant relief, the military judge’s error must have materially prejudiced appellant’s substantial rights. Because the error is a nonconstitutional one, the government must demonstrate “the error did not have a substantial influence on the findings.” Rios, 64 M.J. at 569 (quoting United States v. Berry, 61 M.J. 91, 97 (C.A.A.F. 2005) (additional citations omitted)).

Slip op. at 3 (emphasis added). But Berry was a case with preserved error (i.e., the defense objected to the testimony of a Government witness), and Rios was a case, like Clifton, with either a forfeited or waived error, because the defense did not object to the military judge’s denial of a member’s request. In other words, the ACCA has the plain-error test wrong, and had it wrong in Rios too.

I see this as the real question in this case: Was the military judge’s error (assuming it was error) in denying the member’s request: preserved (no), forfeited (maybe), or waived (I think so), when the trial defense counsel said he had no objection to the military judge’s action? And, if it was forfeited, should an appellate court grant relief?

CAAF then granted review of the following issue:

Whether the Army Court of Criminal Appeals erred when it determined the military judge committed error by denying a panel member’s request to call two additional witnesses for questioning, but found this error to be harmless.

Much of the Appellant’s brief rehashes the underlying issue of the denial of the member’s request being error. But the brief also argues that the error was not harmless because “it is not evident from the record that the Appellant’s counsel made a tactical decision not to object to the military judge’s ruling,” (Appellant’s Br. at 14) and “the error was not harmless because the government cannot prove the error did not have a substantial influence on the findings” (Appellant’s Br. at 16).

In the Government’s brief, the Government’s counsel argues that “[t]he defense’s agreement with the military judge’s ruling to not allow a member to recall two witnesses either: a) waived the issue for appeal, or b) was consistent with their strategy to argue reasonable doubt, and therefore any potential for the panel member in question to resolve an lingering doubt would have been detrimental to appellant.” Gov’t Br. at 5. The brief does a fact-intensive analysis of each witness’s testimony to demonstrate that “the Government’s evidence was overwhelming, especially in light of the two confessions appellant made.” Gov’t Br. at 23. “Therefore, any error . . . was harmless beyond a reasonable doubt.” Gov’t Br. at 26.

In a reply brief, the Appellant argues that since the Government did not appeal the CCA’s decision that the Appellant did not waive the error at trial, that finding is now the law of the case and the Government’s argument that the error was waived is (essentially) mooted. But by just reading the granted issue, it looks like the question of waiver is in dispute at CAAF. The ACCA would have “erred when it determined the military judge committed error” if the lack of objection from the Defense waived any error.

None of the briefs clearly address the question of who has to demonstrate what in this case, and both appear to embrace the ACCA’s conclusion that the Government must demonstrate that the error is harmless. But because the Appellant did not object at trial, the error was at least forfeited, meaning that “it is Appell[ant]s burden to prove material prejudice to a substantial right.” United States v. Humphries, 71 M.J. 209, 217 N.10 (C.A.A.F. 2012) (citing United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011)). So the ACCA’s assignment of the burden is wrong, and I think CAAF will put the burden to demonstrate prejudice squarely on the Appellant (who will be unable to bear it). I also believe that CAAF will ultimately find that this error was waived, and affirm the conviction on that basis.

And, in the process, I believe the court will show its readiness to move yet another step closer to the full, four-prong test for plain error.

Case Links:
ACCA opinion
Blog post: CAAF grant
Appellant’s brief
Appellee’s (Government) brief
Appellant’s Reply Brief
Blog post: Argument preview

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