Adopting the Army CCA’s tortured reasoning from United States v. Kelly, 76 M.J. 793, 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 Jul. 5, 2017) (discussed here), and ignoring a library of contrary precedent, an unpublished decision by a three-judge panel of the NMCCA agrees that the failure to object to improper closing argument before the military judge begins to instruct the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. 

11 Responses to “Forget precedent… NMCCA agrees with ACCA; failure to object to improper argument waives any error”

  1. Concerned Defender says:

    Practice note.  Defense counsel object early and often and repeatedly during the trial and closing arguments.  

  2. Alfonso Decimo says:

    There is routinely a 39a session prior to instructing members on findings, so DC (and maybe MJs) should ensure there’s a discussion of objections to closing arguments. As I recall (but its been many years), that discussion was always part of the courts-martial I litigated. In any case, it will likely be in every record of trial going forward.

  3. Less Concerned says:

    Or this “Practice note”:  Instead of filing a frivolous motion, for example, spend your time reading a few cases that discuss what constitutes improper argument, and then object at the appropriate times instead of just “early and often and repeatedly.”

  4. Vulture says:

    Give them what they want.  The service courts have lost all sense of propriety and are feeding into the make an example of somebody.  So give them their example.  Post this case on every bulletin board.  Broadcast it to the masses.  Parable its mores to the winds. 
    When every Tom, Dick, and Harry out there has to wonder why a girl that is aware enough to text a friend without simply dialing 9-1-1, when the Courts salacious fixation of dime store porn stories, and with police officer’s inducing that “loosened up girl” into a strange bed in a house with guy she just met, they will know.  They will finally get it.  The message to them will be clear:
    If you want to get a piece of the opposite sex, take advantage of the military transgender policy.

  5. Jewel Kicker says:

    Vulture, could you please translate that into English?  Thanks, Staff.

  6. Vulture says:

    It’s probably better to give you a reading list:
    Read the Motsenbocker opinion.  It might give you a clue. 
    Read the opinion US v. Jonathon Truss. cf. Motsenbocker. The service appellate courts like to pack questionable logic with the ugly.
    Read Cox v. Louisiana (full text) :: 379 U.S. 536 (1965).  cf. to determine where the actions of government officials attend.
    Read a basic biology course.  Ask if you are a jewel kicker or if you are just trying not to step on your own “Staff.”
    Hope this helps

  7. K fischer says:

    For me, Puking is the litmus test for incapacitation.  Seriously, who wants to have sex when they are so drunk they puke multiple times?  Very very very few if any at all.  And who want to have sex with a woman who has puked multiple times and once on your bed?  Someone who knows she won’t consent in the morning.  So I don’t share in your outrage.
    However, that as a very long opinion to close the envelope the TC was pushing open.

  8. Alfonso Decimo says:

    Today’s news about the Department of Education’s intent to revise Title IX regulations seems relevant to this discussion. For college administrators, the pendulum seems to be swinging in the other direction in response to the growing perception that Obama-era regulations resulted in insufficient due process for those accused of sexual assaults on campus. There will be a public comment period for the proposed revisions, but we are probably seeing the beginning of an reform trend that will eventually reach military justice.

  9. k fischer says:

    “[W]e are probably seeing the beginning of an reform trend that will eventually reach military justice.”
    I don’t think “the Rick Astley of UCMJ reform” shares the views of the Wise One:  
    What I would do if I were Senator Gillibrand would be to convene a blue ribbon panel to look at all 6,000 some odd sexual assault allegations in 2015 and parse out the cases where nothing happened.  I would review all the case files to see if those cases were swept under the rug or whether they were false allegations, using a preponderance standard.  Then, I would move up to those cases where men accused of sexual assault and forcible rapes were administratively discharged and figure out why that would occur.  Swept under the rug or false allegation, but we need to CYA?  Then, I’d review all the cases dismissed at or before the Article 32?  Swept under the carpet or CYA preferral of charges?  Then I’d look at the acquittals and see if there were any cases that resulted in an acquittal that never should have seen the inside of a courtroom. Might I recommend starting with United States v. Clark at Ft. Benning in 2015?

  10. Vulture says:

    KF says, “… I don’t share in your outrage.”
    That is a fact you should be thankful for.

  11. K fischer says:

    Why should I be thankful that I don’t share in your outrage?