Adopting the Army CCA’s tortured reasoning from United States v. Kelly, __ M.J. __, No. 20150725 (A. Ct. Crim. App. Jul. 5, 2017) (discussed here), and ignoring a library of contrary precedent, an unpublished decision by a three-judge panel of the NMCCA agrees that the failure to object to improper closing argument before the military judge begins to instruct the members waives any error.
The government avers that Ahern applies to RULE FOR COURTS-MARTIAL (R.C.M.) 919(c), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.), which 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.” Analyzing R.C.M. 919(c), in light of Ahern, our sister court came to the same conclusion. Finding that the “plain language of the rule, and our superior court’s decision in Ahern” compelled their result, the Army Court of Criminal Appeals held that the failure to object to government counsel’s closing argument constituted waiver, leaving nothing to review on appeal. United States v. Kelly, No. 20150725, 2017 CCA LEXIS 453, at *9 (A. Ct. Crim. App. 5 Jul 2017). We agree. Like MIL. R. EVID. 304, R.C.M. 919(c) provides no provision for plain error review, and therefore, when a defense counsel fails to object to improper argument of government counsel, the defense waives the issue on appeal. We recognize that this conclusion differs from recent cases where CAAF has tested improper arguments for plain error. See, e.g., Pabelona, 76 M.J. at 11 (“Because defense counsel failed to object to the arguments at the time of trial, we review for plain error.”). However, “[t]o the extent we are presented with contrary case law, we follow our superior court’s most recent decision.” Kelly, 2017 CCA LEXIS 453, at *9.
United States v. Motsenbocker, No. 201600285, slip op. at 17-18 (N-M. Ct. Crim. App. Aug 10, 2017) (emphasis added) (link to slip op.). The decision is written by Senior Judge Hutchinson, with Judge Fulton concurring. Senior Judge Campbell dissents, primarily for a different reason but with a comment that suggests dissent on the finding of waiver as well (“even if the appellant waived the improper argument . . . issue as the lead opinion suggests. . .” Slip op. at 40 (emphasis added)).
The notion that CAAF’s opinion in United States v. Ahern, 76 M.J. 194 (C.A.A.F. Apr. 20, 2017) (CAAFlog case page), surreptitiously overruled its longstanding and unambiguous interpretation of R.C.M. 919(c), is particularly troubling.
CAAF applies forfeiture to the failure to object to improper argument “despite the language of ‘waiver’ in RCM 919(c).” United States v. Diffoot, 54 M.J. 149, 151 n.1 (C.A.A.F. 2000). Forfeiture is also the rule in the federal courts. See United States v. Young, 470 U.S. 1, 16-18 (1985). And Congress wants military rules to mirror the federal rules. See Article 36(a). CAAF’s opinion in Ahern didn’t discuss – or even reference – R.C.M. 919(c), and its application of waiver in Ahern was a consistent application of the waiver provision of Mil. R. Evid. 304(f)(1). Cf. United States v. Swift, 76 M.J. 210, 218 (C.A.A.F. 2017) (CAAFlog case page) (discussing United States v. Miller, 31 M.J. 247, 252 (C.M.A. 1990) (discussing Mil. R. Evid. 304(d)(2)(A), the predecessor of Mil. R. Evid. 304(f)(1))). Furthermore, the defense counsel in Ahern repeatedly made “affirmative statements that he had no objection,” which is wholly different from merely failing to object. Ahern, 76 M.J. at 198.
So Ahern is distinguishable from Kelly and Motsenbocker on the law, the facts, and the history. That makes it a very thin – practically ephemeral – basis for a reinterpretation R.C.M. 919(c).
That the Army and Navy-Marine Corps CCAs would so casually reverse CAAF’s precedent, and then apply that reversal retroactively to turn a failure to object (that was firmly established to be forfeiture at the time it happened) into a waiver really is a wholesale rejection of the doctrine of stare decisis. “Stare decisis et non quieta movere – stand by the thing decided and do not disturb the calm,” goes the saying. James C. Rehnquist, The Power that Shall be Vested in a Precedent: Stare Decisis, the Constitution, and the Supreme Court, 66 B.U. L. REV. 345, 347 (1986).
Ahern didn’t disturb anything. Two service courts, however, are using it to upend settled practice.
But even if we cast aside precedent and take a broad mandate from Ahern, there’s still no reason to apply waiver to the failure to object to improper closing argument. Yes, R.C.M. 919(c) does say that “failure to object . . . shall constitute waiver.” It has said that from the beginning, when it was promulgated in Executive Order 12473. 49 Fed. Reg. 17152, 17211 (Apr. 23, 1984). But military law has a documented history of using the term waiver when really meaning forfeiture. See United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (citing United States v. Harcrow, 66 M.J. 154, 156 n.1 (C.A.A.F. 2008) (what military law called waiver, United States v. Olano, 507 U.S. 725, 733-34 (1993) calls forfeiture)). So it’s likely that back in 1984, when R.C.M. 919(c) was promulgated, the word waiver actually meant what we now call forfeiture. Chief Judge Sullivan certainly felt as much when he wrote:
I note that the language of waiver found in RCM 919(c), Manual for Courts-Martial, United States, 1984, is not technically precise.
United States v. Causey, 37 M.J. 308, 312 (C.M.A. 1993) (Sullivan, C.J., concurring) (emphases added). Decades of precedent followed suit. And now the Joint Service Committee on Military Justice has proposed changing the language of the rule to explicitly say forfeiture, rather than waiver. See 82 Fed. Reg. 31952 (Jul. 11, 2017).
There’s also the fact that waiver is clearly established as the “intentional relinquishment or abandonment of a known right.” United States v. Feliciano, 76 M.J. 237, 240 n.2 (C.A.A.F. 2017) (CAAFlog case page) (quoting United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (quoting United States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)))) (emphasis added). With decades of precedent consistently reaffirming that the failure to object to improper argument is forfeiture, not waiver, past failures to object did not intentionally waive anything.
Astonishingly, none of this is addressed in either Kelly or Motsenbocker. Rather the CCAs merrily apply waiver, retroactively, as if it isn’t a radical departure from decades of consistent precedent and practice.
Disclosure: I represent the appellant in Kelly. We filed a petition for review at CAAF last month.