In United States v. Mark, No. 20160101 (A. Ct. Crim. App. Oct. 23, 2017) (per curiam) (link to slip op.), a three-judge panel of the Army CCA finds that the appellant waived the erroneous use of charged offenses for propensity purposes under Mil. R. Evid. 413 because his defense counsel withdrew the objection.

The catch?

The withdrawal of the objection (and the trial) occurred before CAAF decided United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), holding that charged offenses may not be used for propensity purposes.

Prior to CAAF’s decision in Hills, Army courts-martial were bound by the Army CCA’s decision in United States v. Barnes, 74 M.J. 692 (A. Ct. Crim. App. May 8, 2015) (discussed here), pet. denied, 75 M.J. 27 (C.A.A.F. July 28, 2015), holding that:

We find no prohibition against or reason to preclude the use of evidence of similar crimes in sexual assault cases in accordance with Mil. R. Evid. 413 due to the fact that the “similar crime” is also a charged offense.

74 M.J. at 697-98. So, by withdrawing the objection, the defense merely followed the CCA’s binding precedent.

The implication?

If you follow the Army CCA’s published opinions, you waive errors on appeal.

34 Responses to “The Army CCA wants you to ignore its precedents”

  1. Nathan Freeburg says:

    Leaving aside ACCA’s general issues with accepting CAAF’s clear decisions on MRE 413/414, there is the general trial lesson here for defense counsel:  Always object, never withdraw, always file your motions, oppose everything the government does (unless there is some sort of worthwhile consideration for your client).  Yes, you’ll only be grudgingly invited to the SJA’s holiday party, yes you’ll lose friendships etc.  That’s the deal, that’s zealous advocacy and that’s playing the long game.  Always object (preferably away from the panel), never withdraw.

  2. Zachary D Spilman says:

    Let’s turn that around Nathan Freeburg.

    Last year, in United States v. Ponce, 75 M.J. 630 (A. Ct. Crim. App. Mar. 11, 2016) (discussed here), pet. denied, 75 M.J. 347 (C.A.A.F. May 25, 2016), the Army CCA found that it was error to introduce the accused’s entire OMPF in sentencing (including a complete SF 86 describing significant pre-service misconduct). The court observed, in part, that “information that is properly maintained in a military personnel record is not automatically admissible under R.C.M. 1001(b)(2).” 75 M.J. at 634.

    Despite this precedent, should Army trial counsel nevertheless continue to offer the complete OMPF as a sentencing exhibit? If a military judge denies admission, should the prosecution appeal under Article 62?

    Too esoteric? How about a Brady violation.

    Two years before Ponce, in United States v. Hawkins 73 M.J. 605 (A. Ct. Crim. App. Apr. 18, 2014) (en banc) (discussed here), pet. denied, 73 M.J. 448 (C.A.A.F. Jul. 23, 2014), the Army CCA found a Brady violation in the fact that the appellant pleaded guilty to wrongful manufacture of methamphetamine, after trial it was discovered that no methamphetamine was actually manufactured, and that information was not shared with the defense. A dissenting opinion, however, asserted that:

    To the extent the Brady rule applies after acceptance of a provident guilty plea, where an appellant fails to specifically request discovery of such material and fails to obtain and exploit the matter himself when it is readily available for discovery, he surrenders opportunity to fix blame on the United States for what might otherwise warrant relief.

    73 M.J. 617 (Krauss, J. dissenting).

    Such post-plea discovery issues are going to be rare, but if they happen again should Army trial counsel be comfortable withholding the information from the defense absent a specific request? 

    I could go on and on…

  3. Cheap Seats says:

    Anyone ever heard of Crawford v. Washington?  You can preserve an objection without being disagreeable.  If you don’t object because of precedent, of course you waive/forfeit.  Often the best way to object is in writing, then on the record you say you stand on your written objections.  It is polite, keeps the issue alive, and you can continue to the fight at the court which can actually change the binding precedent.  Object in writing, cite that binding precedent controls but that you argue precedent is wrong, then move on.

  4. Zachary D Spilman says:

    of course you waive/forfeit

    Waiver and forfeiture being fundamentally different things.

  5. Cheap Seats says:

    Zach – they are different.  But the reason for putting them both and the slash is that it is likely a waiver (affirmative decision on the part of the defense based on knowing the binding precedent opinion and not wanting to raise the issue to the court) that on the record shows up as a forfeiture (just no objection).  Similarly, some counsel withdraw objections when the binding precedent is pointed out (as seen above).  That’s the reason I used both.

  6. Zachary D Spilman says:

    I suggest you review United States v. Harcrow, 66 M.J. 154, 157-158 (C.A.A.F. 2009), Cheap Seats, regarding the prudence of caselaw-based decisions at trial, and the effect of a change in the law on appeal. 

    Spoiler: It ain’t waiver.

  7. Nathan Freeburg says:

    Huh? Clearly I’m obtuse but I don’t see how you were responding to me at all. 

  8. Philip D. Cave says:

    And Harcrow is based on Griffith v. Kentucky, 479 U.S 314, 328 (1987) (holding “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases . . . pending on review”).  You’ll be seeing more cites to Harcrow and Griffith over the coming months.

  9. Nathan Freeburg says:

    Oh, you’re asking if the prosecution should follow my advice. Of course not. They do not have the duty of zealous advocacy. They have a  duty to justice (often honored in the breach). (Though I’ve seen smart prosecutors play the long game too by kicking an obviously biased panel member etc.)

  10. Zealous Advocate says:

    Nathan, you are incorrect.  A prosecutor has both the duty to be a zealous advocate and to do justice.
    Standard 3-1.2           Functions and Duties of the Prosecutor
        (a)  The prosecutor is an administrator of justice, a zealous advocate, and an officer of the court.  The prosecutor’s office should exercise sound discretion and independent judgment in the performance of the prosecution function.
        (b)  The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict.  The prosecutor serves the public interest and should act with integrity and balanced judgment to increase public safety both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances. The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.

  11. (Former) ArmyTC says:

    So, the MJ at Fort Carson made a point while speaking on a panel a few months back…he wondered how many state bar rules require “zealous” advocacy? I know my state bar rules only mention “zealous” or variants thereof in the non-binding preamble. AR 27-26 mentions zealousness in the preamble and in some comments, but rule 1.1 only requires competent representation.

    My point is that we do things in the name of zealousness…and we lose sight of competence in the process.

  12. Nathan Freeburg says:

    There are numerous sources that contest that, including Berger v. US, 295 US 78. 

  13. Zachary D Spilman says:

    I’m not sure which way zealousness cuts.

    Does the zealous advocate object to things that clear precedent says are not objectionable? And if so, where does that stop? Must the zealous military defense counsel object because a charge is not service connected? Contra Solorio v. United States, 483 U.S. 435 (1987). Or because the military judge does not have a fixed term of office? Contra Weiss v. United States, 510 U.S. 163 (1994). Or because Mil. R. Evid. 707 prohibits admission of an exculpatory polygraph? Contra United States v. Scheffer, 523 U.S. 303 (1998).

    I think not. The zealous advocate (nevermind the smart advocate) works with the precedent, not against it.

    This is what makes the Army court’s decision in Mark – unpublished and per curiam as it is – so problematic. The CCA finds waiver, which is the intentional relinquishment of a known right and means there is no error for the court to correct on appeal. It does so because the trial defense counsel merely acknowledged the then-binding precedent of the very same court – supported by similar precedents from the Navy-Marine Corps and Air Force courts (the Coast Guard court hadn’t decided the issue either way) – that the issue was not objectionable. Put differently, even though the Army court published a decision saying this issue was not objectionable before the trial of this case, and CAAF denied review, the Army court nevertheless penalizes this appellant because his defense counsel did not object.

    The only lesson we can take away from Mark is that the Army court does not think that its precedent – when not reversed – is binding. And if it doesn’t think so, why should anyone else?

  14. Nathan Freeburg says:

    Various state bars agree with me as well (yours may vary); the ABA is, of course, not binding on anyone. Now to look at Byron White’s dicta in US. v. Wade: I see two rules for a defense attorney: 1. Do everything for an acquittal; 2. Don’t violate your state bar rules. If you’re an accused and your defense lawyer doesn’t understand this, get a new one. Until the TDS’ are truly independent (federal public defender style), this is always going to be an issue. 

  15. Nathan Freeburg says:

    Military appellate precedent is often ___ though. Our appellate courts ignore the Supreme Court not infrequently. See US v. Marcum. (In fairness, so does Congress.)
    I have and will continue to argue at the trial level that military precedent was wrong. I’ve been proven right once already. It will happen again. 

  16. Former DC says:

    I hate to say this, because it’s going to wind you up, but this is the rule in some states. The Commonwealth of Virginia has this rule. Issues that are not raised in the trial court – EVEN WHEN THE BINDING PRECEDENT IS TO THE CONTRARY – are waived and cannot be raised later, even if the law changes. That is why, as just one example, you will see a perfunctory motion to declare the death penalty unconstitutional in every Virginia capital case. This is the usual result: lots of pro forma motions in contested cases  
    For the record, I think this idea is asinine. But it isn’t quite as unprecedented as it seems. 

  17. Zachary D Spilman says:

    I see Former DC. Will you also tell us about the rule in other non-federal, non-military jurisdictions? France, perhaps? 

    Nevertheless, when I look at the Virginia rule I think you reference (Va. Sup. Ct. R. 5:25) and the facts of Mark (where the military judge addressed the admissibility of charged offenses for propensity purposes in a 39(a) session), I find that even in Virginia this error would not be waived because:

    The main purpose of requiring timely specific objections is to afford the trial court an opportunity to rule intelligently on the issues presented, thus avoiding unnecessary appeals and reversals. Reid v. Baumgardner, 217 Va. 769, 773, 232 S.E.2d 778, 780 (1977). In addition, a specific, contemporaneous objection gives the opposing party the opportunity to meet the objection at that stage of the proceeding. Hilton v. Fayen, 196 Va. 860, 866, 86 S.E.2d 40, 43 (1955). Those opportunities were afforded both the trial court and counsel for defendants in this case. Consequently, we hold that the plaintiffs preserved their right to appeal.

    Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991).

  18. Former DC says:

    If French law is persuasive, sure. I don’t think instructions to collaborate are relevant here, but maybe someday. 
    Seriously, you might be right that this issue could be preserved. 
    At the bottom, though, I stand by my final analysis: the ACCA decision here is asinine. 

  19. Zachary D Spilman says:

    See also Herrera v. Commonwealth, 24 Va. App. 490, 494, 483 S.E.2d 492, 494-95 (1997), Former DC, where the defense didn’t object at trial nor did it raise the issue on appeal even though the law changed between trial and appeal.

    Nevertheless, reversed.

  20. stewie says:

    I stand with Nathan. Always object. It was pretty darn settled law you didn’t need the terminal element in 134 cases, yet someone objected to it and boom now you do. I also agree you can do it in writing with a motion and move on, you don’t have to be over the top with it. Just preserve it and move on. But there’s little value to your client in comity from the sense of not objecting to be “reasonable.”
    You are reasonable in your manner and decorum, not in your zealousness as defense counsel. And speaking of the Z-word…yes prosecutors should be zealous…to a point…because that point can be where zealousness overwhelms the equally important duty to do justice and blinds a prosecutor to those cases where he/she needs to pull back.

  21. Zachary D Spilman says:

    I look forward to seeing your objections, stewie and Nathan, to non-service connected charges, military judges without fixed terms of office, and the constitutionality of R.C.M. 707. 

  22. stewie says:

    If they apply and I think it’s worthwhile to my client, then yes, I could object to just about anything. No one said that DC should object to any possible thing they could think of across the board in every single case (although that’s certainly what happens in capital litigation). You are attempting to make a reasonable position unreasonable via absurdity.
    But you would have been the guy to mock Fosler’s attorneys yes? How’d that work out?

  23. Zachary D Spilman says:

    I would say, stewie, that the vast numbers of defense counsel who did not similarly object to the failure to allege a terminal element did not waive the issue. See, for example, United States v. Bell, 72 M.J. 543, 558 (A. Ct. Crim. App. 2013) (discussed here for a different reason), rev. denied, 73 M.J. 59 (C.A.A.F. 2013). 

  24. k fischer says:

    You have fallen victim to one of the classic blunders, the most famous of which is “never get involved in a land war in Asia” – followed by the slightly less well-known “Never go in against a Sicilian when death is on the line”, and concluded by the obscure, but still classic “Never engage in a discussion about the UCMJ with Nate Freeburg with the intent of getting in the last word.”
    Nice to see you posting with your real name, Brohah.

  25. stewie says:

    No no Zach, no goalpost moving. Your comment was specifically on the idea of DC objecting to things that established precedent says there is no point in objecting to. And yes, we’ve had recent case law, particularly from the Service Courts, that suggest waiver is getting easier to accomplish. So you cannot “be sure.”
    I get if you think it’s less of a concern, but to basically portray Nate’s position as absurd or unprofessional as you appear to be coming across as doing, is something I don’t get.

  26. K fischer says:

    *****Nathan Freebur or Stevie…..

  27. K fischer says:

    *****Freeburg or Stewie (stupid autocorrect)

  28. Zachary D Spilman says:

    Wrong, stewie

    You wrote:

    Your comment was specifically on the idea of DC objecting to things that established precedent says there is no point in objecting to.

    Indeed it was. And when Mark was tried, there was no point in objecting to charged offenses admitted for propensity purposes because of the established precedent of United States v. Barnes, 74 M.J. 692 (A. Ct. Crim. App. May 8, 2015), pet. denied, 75 M.J. 27 (C.A.A.F. July 28, 2015). The same was true with Bell – another Army case – as well as dozens of other similar cases, because of 60 years of precedent saying terminal elements need not be alleged. That’s why I cited it. 

    You also wrote:

    And yes, we’ve had recent case law, particularly from the Service Courts, that suggest waiver is getting easier to accomplish.

    Precedent that post-dates the trial in Mark (and that CAAF hasn’t – yet, perhaps, though I think not – passed on reviewing). 

    If Nate’s point as that defense counsel should object to everything no matter how well-settled the issue, then yes, I believe that to be absurd and unprofessional. And, I suspect, so do you.

  29. stewie says:

    Nate’s point was not remotely that DC should object to everything, his point was that DC should be prepared to know that what they don’t object to could be considered forfeited/waived and thus they should object without regard to whether something is “established precedent” if they want to preserve that issue(s).
    Again, are you saying that when a certain client’s counsel objected to the lack of a terminal element in a certain 134 case…with case law/precedent that went back two generations saying the direct opposite, that their objection was “absurd and unprofessional?”

  30. Zachary D Spilman says:

    could be considered forfeited/waived

    Waiver and forfeiture being fundamentally different things. Sheesh.

  31. Tami a/k/a Princess Leia says:

    I think the learning point is, regardless of whether it’s waiver or forfeiture (which Zach correctly points out are fundamentally different), don’t withdraw an objection!

  32. Philip D. Cave says:

    Here’s a thought for future litigants.
    If the only appellate case on point is from your same service court and there is no CAAF precedent, object and don’t withdraw the objection because CAAF has yet to hear the issue.  This is true even if CAAF has previously denied a petition on a similar issue from a service court.  There are a number of reasons CAAF doesn’t grant the first time an issue arises.  To object and continue in this situation is not even close to unprofessional IMHO. 
    If your service appellate court is against you, but a sister court is for you–object and continue the objection.  On appeal, you have helped set up appellate counsel and possibly CAAF to resolve a “circuit” split on review.  To object and continue in this situation is not even close to unprofessional IMHO.
    If military courts are against you, on say the interpretation of a military rule of evidence and there is a substantial number of federal interpretations of the same federal rule in your favor, then I can see advancing the argument on the theory that CAAF may decide to follow the federal interpretations to make federal and military practice similar.  So, not a frivolous argument.
    If CAAF is clearly against you that’s a harder call–especially in light of Fosler and Solorio.  If your issue is a serious one–even constitutional, and the Supremes have not taken it up, then arguably you can maintain your objection on the theory that the issue might get to the Supremes after it has gone through CCA and CAAF, or that the CCA or CAAF might change its mind.  Didn’t the NMCCA just do that in a “waiver” case  United States v. Motsenbocker
    Part of the problem with Mark, IMHO, is that there was nothing to waive.  What counsel really gave up was an argument as to why the law was wrong–which is what the appellate lawyers do.  
    And why not invoke an argument similar to Noyd v. Bond, 395 U.S. 683, 685, n.11 (1969), to “forgive” the defense.

  33. Nathan Freeburg says:

    Zach, actually I routinely file a motion arguing that the UCMJ is unconstitutional and that assumptions underlying Solorio no longer apply. 
    Take a look at Supreme Court Rule 14. If there is even the slight possibility that it’s an SC issue, best to raise it at trial. 

  34. stewie says:

    For…fornication’s sake, yes Zach we all know forfeiture and waiver are different things. Just because someone puts a slash between two things does not mean those two things are being laid out as being the exact same things.
    Forfeiture is (usually) not a good thing. Waiver is (often) an even worse thing. BOTH can result as we’ve seen from failure to object.
    I know you are a hyper…particular…guy, but seriously, enough. Give folks on here a bit of credit instead of trying to nitpick as a short-cut to debate.