Back in November, I speculated that United States v. Clifton, No. 12-0486/AR, 71 M.J. 489, which CAAF reviewed to determine “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,” was really about the court’s slow-but-steady move to the full, four-prong test for plain error. I was at least half wrong; Clifton might actually be a move in the other direction.

Chief Judge Baker affirms the Army CCA, after first assuming forfeiture and not waiver, and conducting a three-prong plain-error analysis. His opinion is joined by Judge Ryan and Senior Judge Efforon, with separate concurring opinions from Judge Erdmann (who gives us a lesson in CAAF’s procedural rules) and from Judge Stucky (who finds that the Appellant waived the issue by failing to object).

The trial-stage decision at issue is that after closing arguments, one of the 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 considered an assignment of error relating to the denial of the member’s request, and found that the military judge abused his discretion in denying 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). The CCA also considered whether the lack of a defense objection waived the issue, but decided that it did not.

Chief Judge Baker begins his opinion with a discussion of the standard of review: “Ordinarily, where defense counsel affirmatively responds ‘no objection’ to a military judge’s denial of a panel member’s request to call additional witnesses for questioning, we would consider whether an appellant waived the issue. In this case, we need not reach the issue of waiver because, even assuming that Appellant merely forfeited the issue, we conclude that he failed to carry his burden to show prejudice under a plain error analysis.” Slip op. at 5-6. But then things get a little vague:

Under a plain error analysis, this Court will grant relief in a case of nonconstitutional error only if an appellant can demonstrate that (1) there was error; (2) the error was plain and obvious; and (3) the error materially prejudiced a substantial right of the accused. United States v. Powell, 49 M.J. 460, 464-65 (C.A.A.F. 1998).

Slip op. at 6 (emphasis added). By highlighting the error in this case as “nonconstitutional,” the Chief Judge indicates that the burden-shift for forfeited errors of constitutional dimension – that the Government must demonstrate that the error was harmless beyond a reasonable doubt – still exists in military law. But, as I discussed in The Hazard of Humphries:

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).

The problems with the Powell burden shift are both real and familiar:

Under a plain–error analysis, appellant has the initial burden of persuasion. He must show that there was an error, that it was plain or obvious, and that it materially prejudiced a substantial right. Only if appellant meets that burden of persuasion does the burden shift to the Government to show that the error was not prejudicial. If the plain error is constitutional error, the Government must convince us beyond a reasonable doubt that the error was not prejudicial.

United States v. Carpenter, 51 M.J. 393, 393 (C.A.A.F.  1999) (citing United States v. Powell, 49 MJ 460, 464–65 (C.A.A.F. 1998)). First the appellant proves material prejudice, then the Government disproves it beyond a reasonable doubt; it’s the legal impossibility we’ve been missing.

The point being that even errors of constitutional dimension may be forfeited by failure to object at trial, there is only one test for plain error, and it is the Appellant’s burden to show prejudice. See, for example, United States v. Marcus, 130 S.Ct. 2159 (2010) (finding the Second Circuit’s plain-error analysis of prejudice inconsistent with the Court’s jurisprudence in a case involving a conduct that occured before the effective date of the criminalizing statute). See also Nguyen v. United States, 539 U.S. 69, 89 (2003) (Rehnquist, C.J. dissenting) (“Petitioners’ second constitutional claim, like their statutory one, is subject to plain-error review.”). While Chief Judge Baker returns to this topic only once in this opinion (“Keeping in mind that Appellant bore the burden to show prejudice in the absence of an objection at trial and in the context of a nonconstitutional error…” Slip op. at 9), it’s hard to imagine that the Chief Judge uses the word “nonconstitutional” superfluously. So, where I previously saw a possibility that CAAF would embrace a stricter form of plain-error analysis, I now see the makings of an unexplained drift back to a more permissive review.

On the underlying question of error, the Chief Judge agrees with the CCA that the trial judge erred when he failed to “perform an analysis of the other three Lampani factors before summarily denying the member’s request.” Slip op. at 7. But he also notes that the Lampani factors are not exhaustive. Further, he faults the judge for denying the request because witnesses had been excused and the evidence had been closed, finding these reasons to deny a request to call a witness to be unsupported by law. Slip op. at 7-8. But the error is not prejudicial because:

First, Appellant’s conviction is supported by overwhelming evidence. . . . Second, the members had opportunity to ask questions, and did. Thus, this is not a case where the purposes of Article 46, UCMJ, R.C.M. 921(b), and M.R.E. 614(a), were ignored or defeated. To the contrary, the military judge exercised his discretion and allowed members to ask some, but not all, questions, and entertained some, but not all, requests to recall witnesses.

Slip op. at 9-10.

Judge Erdmann write a separate concurring opinion “only to express [his] view of the waiver issue.” Op. at 1. (Is this a disclaimer of any intent to get a big footnote in Professor Eugene Fidell’s CAAF Rules Guide?). Judge Erdmann finds that the question of waiver is not properly before CAAF because despite the Government discussing the issue in its brief, the waiver issue was neither granted nor certified. He explains that:

Under the court’s rules prior to 2007, the government was placed in a difficult situation. The accused had sixty days from the date of the CCA decision to file a petition at this court. The government had thirty days from the date of the CCA decision to certify an issue to this court. The government would often see no need to certify an issue to this court in a case where it may have failed to prevail on every issue before the CCA, but ultimately prevailed in having the conviction affirmed. However, where an accused had filed a petition with this court which had been granted, by the time of the grant the government was often time-barred from certifying an issue, even though the non-appealed issue may have impacted the government’s ability to respond to the accused’s issue.

Because of these filing deadlines, this court would find itself faced with situations where an accused would file a petition asserting that the CCA erred and the government would often respond by arguing that another, non-appealed, portion of the CCA decision was error. . . . As a result, we would spend a good deal of time entertaining arguments as to whether the “law of the case” doctrine should apply to bar litigation of the non-appealed issues or whether the government’s issue was reasonably contained in the granted issue.

Op. at 3-4. But the relevant CAAF rule (19(b)(3)) was amended effective January 1, 2007, to give the Government 30 days from the date the court granted review of an issue to certify an issue. He concludes:

In light of the rule change, once an issue has been granted by this court, the government should certify any issue upon which it did not prevail at the CCA and which it deems necessary to litigate before this court. Because theGovernment failed to certify the CCA’s waiver decision, that issue is not properly before the court. As that would lead to the plain error analysis conducted by the majority, I join that portion of the majority’s opinion.

Op. at 7-8. Finally, Judge Stucky disagrees completely: This was a case where Appellant affirmatively waived his right to appeal the military judge’s decision not to recall the requested witnesses. Op. at 1. “If an accused’s valid waiver leaves no error for [this Court] to correct on appeal, whether the Government raises the issue is irrelevant.” Op. at 3 (marks and internal citations omitted).

Ultimately, as far as the military’s use of the plain-error test goes, one thing is certain. In its opinion in this case, the Army CCA found:

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.”

United States v. Clifton, No. ARMY 20091012, slip op. at 3 (A.Ct.Crim.App. Apr. 23, 2012) (unpublished) (emphasis added). That conclusion was wrong.

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

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