The Army CCA’s published en banc opinion in United States v. Kelly, 76 M.J. 793, No. 20150725 (A. Ct. Crim. App. Jul. 5, 2017) (link to slip op.), is notable for a number of reasons. The case involves a claim of ineffectiveness of counsel based on the defense counsel foregoing any peremptory challenge in pursuit of a certain number of members (a strategy known as the numbers game), the members repeatedly asked questions about uncharged adultery after the military judge instructed them to disregard it, and a split en banc court concludes that it has no authority to set aside a mandatory minimum dismissal or dishonorable discharge for a sexual offense required by Article 56.

But the CCA also finds that the failure of defense counsel to object to improper prosecution closing argument waived – rather than forfeited – any error.

Kelly is one of a number of recent cases in which the Army CCA reaches the same remarkable conclusion. See United States v. Burris, No. 20150047 (A. Ct. Crim. App. Jul. 28, 2017) (link to slip op.); United States v. Sanchez, No. 20140735 (A. Ct. Crim. App. Jul. 17, 2017) (link to slip op.); United States v. Marcum, No. 20150500 (A. Ct. Crim. App. May 5, 2017) (link to slip op.). The CCA also reached the same conclusion for improper sentencing argument in United States v. Hoffman, 76 M.J. 758, No. 20140172 (A. Ct. Crim. App. Jun. 27, 2017) (link to slip op.).

Errors are preserved by timely objections, and an appellant is entitled to relief from a preserved error (unless it is harmless). Waiver of an error means that there is no error to correct on appeal and an appellant is not entitled to any relief (though a CCA may, nevertheless, grant relief). But waiver is the intentional relinquishment or abandonment of a known right. The mere failure to make a timely objection, however, usually forfeits any error, and an appellant is entitled to relief from a forfeited error upon showing that the error was plain, obvious, and prejudicial (the plain error test).

The Army CCA’s conclusion in Kelly that failure to object to improper closing argument waives – rather than merely forfeits – the error is remarkable because CAAF’s precedent (and the CCA’s own practice) clearly state the opposite. Writing for the en banc CCA, Judge Wolfe finds that:

R.C.M. 919(c) governs argument on findings. The rule states: “[f]ailure to object to improper argument before the military judge begins to instruct the members on findings shall constitute waiver of the objection.” R.C.M. 919(c). The rule has no “plain error” condition.

Kelly, __ M.J. at __, slip op. at 6. CAAF, however, has long held that:

Despite the language of “waiver” in RCM 919(c), Manual for Courts-Martial, United States (1995 ed.), we have repeatedly held that where there is no defense objection to the prosecution’s argument, we review for plain error. See United States v. Carpenter, 51 MJ 393, 396 (1999); United States v. Sweeney, 48 MJ 117, 121 (1998); cf. United States v. Causey, 37 MJ 308, 312 (CMA 1993) (Sullivan, J., concurring).

United States v. Diffoot, 54 M.J. 149, 151 n.1 (C.A.A.F. 2000). Judge Wolfe’s opinion in Kelly does not acknowledge (or even cite) CAAF’s decision in Diffoot.

Rather, Judge Wolfe suggests that CAAF’s recent opinion in United States v. Ahern, 76 M.J. 194 (C.A.A.F. Apr. 20, 2017) (CAAFlog case page), changed the rule:

In the recent case of United States v. Ahern, 76 M.J. 194 (C.A.A.F. 2017), our superior court discussed this difference while interpreting Military Rule of Evidence [hereinafter Mil. R. Evid.] 304. The waiver provision of Mil. R. Evid. 304 is virtually identical to the rule at issue here, R.C.M. 919(c). Our superior court wrote the rule “unambiguously provides that any claim arising under [the rule] is waived absent an objection.” Id. at 197. The CAAF noted the difference between the two types of waiver and stated “[t]his is not a case where the rule uses the word ‘waiver’ but actually means ‘forfeiture.’” Id. The court in Ahern found this court erred when we tested for forfeiture and plain error. Id. at 198.

Kelly, __ M.J. at __, slip op. at 6. Ahern, however, involved much more than a mere failure to object; Ahern’s defense counsel affirmatively stated that the defense had no objection to the introduction of the evidence at issue. Writing for a unanimous CAAF, Judge Ryan explained that:

[U]nder the ordinary rules of waiver, Appellant’s affirmative statements that he had no objection to their admission also operate to extinguish his right to complain about their admission on appeal.

Ahern, 76 M.J. at 198. CAAF’s opinion in Ahern did enforce the waiver rule in Mil. R. Evid. 304(f)(1), with Judge Ryan noting that “this is not a case where the rule uses the word ‘waiver’ but actually means ‘forfeiture.'” 76 M.J. at 197. Judge Wolfe’s opinion in Kelly makes a similar claim about R.C.M. 919(c). But in Ahern CAAF also held that “even without M.R.E. 304(f)(1), Appellant’s statement that he had no objection constitutes waiver.” 76 M.J. at 198. No such affirmative waiver occurred in Kelly or the other cases cited above.

Put differently, in Ahern CAAF neither had to nor did it reverse any prior interpretation of Mil. R. Evid. 304(f)(1) to find waiver (and it didn’t reference 919(c) at all). But in Kelly the Army CCA reverses CAAF’s consistent prior interpretation that failure to object to improper argument forfeits, rather than waives, any error. Even if such a reversal is warranted, “it is [CAAF]’s prerogative to overrule its own decisions.” United States v. Davis, 76 M.J. 224, 228 n.2 (C.A.A.F. May 9, 2017) (CAAFlog case page).

Moreover, there are three strong reasons to conclude that CAAF’s existing interpretation is the correct one and that forfeiture, not waiver, applies to the failure to object to improper argument.

First, the Joint Service Committee has proposed changing R.C.M. 919(c) to reflect the existing, forfeiture rule. In a notice published at 82 Fed. Reg. 31952 (Jul. 11, 2017) (noted here), the JSC solicited public comments on rules to implement the Military Justice Act of 2016. Those rules include a revision to R.C.M. 919(c) to state:

(c) Forfeiture of objection to improper argument. Failure to object to improper argument before the military judge begins to instruct the members on findings shall constitute forfeiture of the objection.

(direct link to change). An identical change is made for improper sentencing argument under R.C.M. 1001(h) (direct link to change). While these changes weren’t formally announced until after publication of Judge Wolfe’s opinion in Kelly, they were previewed and known a week before (in this post). And it is reasonable to expect that the judges of the Courts of Criminal Appeals (or at least their clerks) will keep themselves informed of pending changes to rules they intend to reinterpret.

Second, the Rules for Courts-Martial are prescribed by the President and must “so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.” Article 36(a). For improper closing argument those principles of law and rules provide that the failure to object constitutes forfeiture, not waiver.

Specifically, in United States v. Young, 470 U.S. 1, 16-18 (1985), the Supreme Court applied forfeiture and the plain error test to improper rebuttal closing argument by the prosecution where there was no objection by the defense. Since then, forfeiture has been consistently applied to the failure to object to improper argument in the federal courts. Here are citations to criminal cases from every federal appeals court (except the Federal Circuit) applying plain error to the failure to object to improper argument: United States v. Ponzo, 853 F.3d 558, 582 (1st Cir. 2017); United States v. Jones, 205 F.3d 1325 (2nd Cir. 2000) (summ. dis.) (citing Untied States v. Miller, 79 F.3d 338, 343 (2d Cir. 1996)); United States v. Thame, 846 F.2d 200, 208 (3rd Cir. 1988); United States v. Harris, 498 F.3d 278, 292 (4th Cir. 2007); United States v. Ceballos, 789 F.3d 607, 624 (5th Cir. 2015); United States v. Ross, 703 F.3d 856, 879 (6th Cir. 2012); United States v. Alexander, 741 F.3d 866, 871 (7th Cir. 2014); United States v. Sevilla-Acosta, 746 F.3d 900, 905 (8th Cir. 2014); United States v. Macias, 789 F.3d 1011, 1022 (9th Cir. 2015); United States v. Fleming, 667 F.3d 1098, 1103 (10th Cir. 2011); United States v. Sosa, 777 F.3d 1279, 1294 (11th Cir. 2015); United States v. McGill, 815 F.3d 846, 918 (D.C. Cir. 2016).

Finally, while Article 36(a) allows the President to prescribe rules that are different from those applied in the district courts, a uniquely-military rule that applies waiver to the failure of defense counsel to object to improper closing argument isn’t just unwarranted, but it’s a bad idea.

From a policy perspective, the Army CCA’s new waiver rule will lead to a significant increase in claims of ineffectiveness by detailed military defense counsel based on a failure to object. Since those counsel are trained, certified, and assigned by the JAGs, such claims undermine public confidence in the integrity and fairness of the military justice system.

From a practical perspective, the Army CCA’s new waiver rule means that defense counsel should interrupt prosecution closing arguments with objections, should do so early and often, and should ask the military judge to instruct the members that such objections are required by the CCA (and must not be held against the accused or counsel).

Disclosure: I am civilian appellate defense counsel for the appellants in Kelly and Burris. I did not represent either at trial.

17 Responses to “The Army CCA finds that the failure to object to improper argument waives – rather than forfeits – any error, disregarding CAAF, proposed changes to the MCM, and Article 36”

  1. Rodeo says:

    From a practical perspective, the Army CCA’s new waiver rule means that defense counsel should interrupt prosecution closing arguments with objections, should do so early and often, and should ask the military judge to instruct the members that such objections are required by the CCA (and must not be held against the accused or counsel).
    RCM 919(c) only requires objection prior to instructions.  Would it not be sufficient to object at the conclusion of the Government’s closing?  Understanding the potential tactical reasons for disrupting their argument, of course.  Also, safe to assume that this interpretation would not have any effect on trial defense counsel from non-Army services?

  2. Zachary D Spilman says:

    I think it insufficient to object at the conclusion of the prosecution closing argument, Rodeo, because if failure to object entirely is waiver, then non-contemporaneous objection is almost certainly forfeiture. But that’s a legal perspective.

    Practically speaking, holding every objection to the end requires the defense to focus on keeping track of the errors rather than on presenting the accused’s side. That’s bad. 

    When failure to object is forfeiture, the accused isn’t denied relief from improper argument (which, by the way, is prosecutorial misconduct that the Army CCA seems content to let slide) just because defense counsel’s focus was elsewhere. The defense certainly can waive improper argument by acknowledging it and rejecting curative measures. But merely focusing elsewhere isn’t that.

    Interestingly, in the context of improper closing argument, CAAF pretty recently described the plain error standard as embodying a situation where a military judge has a sua sponte duty to address impropriety:

    Determining that trial counsel’s argument was improper, however, does not answer the question whether it was plain and obvious in the context of the entire trial that the military judge needed to sua sponte give further instructions on the use of propensity evidence.

    United States v. Burton, 67 M.J. 150, 153 (C.A.A.F. 2009). Hard to see how a military judge can have a sua sponte duty to correct a waived error.

  3. Vulture says:

    Put another way Rodeo, Do you really want to be riding that bull for more than 8 seconds?  Because the Government has the last word in argument, it’s better to object at the point of their deviation.  If they stray on rebuttal, which does happen, it allows a timely objection to be more effective.

  4. stewie says:

    These same COLs, if judges, would be quite upset if the DC followed this ruling and repeatedly objected during a TC’s closing argument.
    It also will likely have the effect of causing TC to return the favor as it will and repeatedly object during DC’s closing argument.
    Such that both sides are reduced to a halting, stilted series of statements punctuated by objections.

  5. DCGoneGalt says:

    stewie:  I agree, seems like a recipe for disaster.  If an MJ demanded written argument to review in advance and took objections and ruled in a closed session and then allowed TC and DC to argue (with a tight leash) would that be more workable.  I wouldn’t want to turn it over but I’d rather turn it over than hear an objection every 5 minutes.

  6. Vulture says:

    Stewie and DCGG.
    In oral argument for Ahern, one of the questions for Counsel for the Appellant was something to the order of “If this is so bad and error, why didn’t Defense Counsel object?”  The DAD attorney was left to say that he didn’t know, “Maybe Defense Counsel was asleep at the wheel.”  As I recall the Government and Defense Attorneys seemed to have a lot of respect for each other in that argument.  I don’t think that stepping on each others toes is at issue here because if the Government is making an improper argument, the MJ should hear about it.  Sooner rather than later because panels are getting pelted with mistaken statements.

  7. stewie says:

    Vulture, that’s nice in theory, we are talking about practice.

  8. Zachary D Spilman says:

    Ahern simply isn’t a case about improper argument.

    While Ahern’s appellate counsel framed the case in the context of improper argument, CAAF’s review was never about improper argument.

    CAAF granted review in Ahern to determine:

    Whether the lower court erred when it held that the prohibition against using an admission by silence provided by Mil. R. Evid. 304(a)(2) is triggered only “when the accused is aware of” an investigation contrary to the plain language of the rule.

    And CAAF decided the case by applying Mil. R. Evid. 304(f)(1):

    The right at issue in this case is contained within a Military Rule of Evidence, promulgated by the President pursuant to his authority to prescribe rules of evidence for courts-martial under Article 36, UCMJ, 10 U.S.C. § 836 (2012). . . . But the rule underlying Appellant’s claim also provides that his failure to object to the admission of the phone calls constitutes waiver of his right to complain that they were used in this fashion.

    M.R.E. 304(f)(1) plainly states that claims arising under M.R.E. 304(a)(2) are waived absent an objection. . .

    Slip op. at 6.

  9. DCGoneGalt says:

    stewie:  Was that a veiled attempt at a play on an Allen Iverson quote . . .  “We’re talking about practice.  Practice.”

  10. stewie says:

    No, but I knew it was coming as soon as I typed it.

  11. Vulture says:

    Zach.  I don’t think with that level of intellectual capital required to answer the question of proper objection, that TC or DC doing so would cause  an uncontrolled melee in the Court.  DCGG said above that Counsel would be objecting every 5 minutes.  Why wait so long?  Government may talk as if the Accused is guilty on closing.  That is a pretty liberal grant already so if the presumption of innocence is to be maintained the Defense has an equal grant to object.

  12. Zachary D Spilman says:

    I don’t follow you, Vulture.

    My opinion is that the plain error test – where the appellant has the burden to show plain and obvious error that prejudices a substantial right – is more than adequate to address the failure to object to prosecutorial misconduct during closing argument at a court-martial, just as in the district courts.

    Considering that CAAF reached the same conclusion long ago and the JSC recommends amending the rule to explicitly codify that (rather than explicitly reject it), I feel pretty confident in my opinion on this issue.

  13. stewie says:

    Vulture, the status quo was…object if it’s really bad, but don’t get ridiculous with it and object for every conceivable, possible improper argument.  Because, if it’s truly bad, you still have plain error (which is not really where you want to be, but it’s better than nothing).
    Now it’s, if you don’t object, it’s waived, so why wouldn’t the advice be…object to everything, no matter how small? Why wouldn’t DC object every other sentence? And why wouldn’t TC, in retaliation, start objecting more in return?
    Where have I got it wrong?

  14. Alfonso Decimo says:

    I recommend defense counsel move the judge to rule that failure to object to improper prosecution closing argument neither waives nor forfeits error, provided the defense objects at the end of the prosecution’s closing argument and requests a 39a session to develop a curative instruction. For the judges, I recommend they issue this order sua sponte and perhaps as part of their standard pre-trial order. Perhaps things have changed, but when I litigated courts-martial (and it was many years ago), one of the best aspects of military justice was a level of civility and decorum one just doesn’t see in civilian courts.

  15. Zachary D Spilman says:

    You’re suggesting, Alfonso Decimo, that the defense agree in advance to allow prosecutorial misconduct to continue without objection.

    What if, upon conclusion of the improper argument, the defense does not agree that any curative instruction is adequate?

    As for “civility and decorum,” what’s civil or dignified about a prosecutor making an objectionable argument?

  16. Vulture says:

    Z and S.  I feel pretty confident in your opinion too.  But I don’t think that the defense risks as much to loose by a tit-for-tat as Stewie suggests.  I am just doubling down by consideration of the audience.  Think 1/3-2/3 rule, get out a Warno as quickly as possible, and 80% solution conducted violently – that is what the panel is raised on.  They don’t operate on your schedule.  Also, based on how Ahern went, with repeated objections, welcome to a rock and a hard place “trial work” and are you ready to take over ATC, the argument at CAAF was very professional.  And by that, I think both sides wanted to get the right result.  So, no, I don’t see retaliation being the end result.

  17. Alfonso Decimo says:

    No, I did not mean to suggest defense counsel silently tolerate prosecutorial misconduct in the name of decorum. I apologize for any such implication. I meant to devise a method to avoid repeated objections during closing argument for the sake of the Army CCA’s disruptive new waiver rule.