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
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.