CAAF rejects the certified issue in Hale; expands review of whether the mere failure to object constitutes waiver
CAAF just updated its daily journal with events from last week, including two significant developments.
First, the court rejected the certified issue in Hale as seeking an advisory opinion, and summarily affirmed the NMCCA:
No. 17-0537/MC. United States, Appellant v. James A. Hale III, Appellee. CCA 201600015. On further consideration of Appellant’s certificate for review and the briefs of the parties, it is ordered that no answer is provided to the certified issue because to do so would require issuing an advisory opinion, that the hearing notice issued by the Court on October 20, 2017, setting argument in this case for January 9, 2018, is hereby vacated, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.
In an opinion I discussed here, the NMCCA reversed Hale’s convictions, and authorized a rehearing, because of a conflict of interest between his lead military defense counsel (a Marine captain, identified as Capt KC), her husband (another Marine captain, who was assigned as a trial counsel but not otherwise involved in the case, identified as Capt CC), and the prosecutor (a Marine lieutenant colonel, who was the regional trial counsel and supervised the husband, identified as LtCol CT). The CCA held “that where an appellant demonstrates that his counsel labored under an actual conflict of interest, and where the conflict had an adverse effect on the counsel’s performance, the appellant is entitled to a presumption of prejudice.” United States v. Hale, 76 M.J. 713, 722 (N.M. Ct. Crim. App. 2017) (emphasis added).
Second, CAAF expanded its review of whether failure to object to improper argument forfeits or waives any error. The court specified an issue in Kelly – in addition to the previously-granted issue questioning a CCA’s power to modify a mandatory minimum punitive discharge – but ordered no briefs, making the case a Marcum trailer:
No. 17-0559/AR. U.S. v. Eric F. Kelly. CCA 20150725. On further consideration of the record, it is ordered that the petition for grant of review is granted on the following additional issue specified by the Court:
IN LIGHT OF THIS COURT’S DECISIONS IN UNITED STATES V. SEWELL, 76 M.J. 14 (C.A.A.F. 2017) AND UNITED STATES V. PABELONA, 76 M.J. 9 (C.A.A.F. 2017) DID THE LOWER COURT ERR WHEN IT DETERMINED THE STANDARD OF REVIEW WAS WAIVER WHEN THERE WAS NO OBJECTION TO IMPROPER ARGUMENT?
No briefs will be filed under Rule 25.
Additionally, CAAF granted review of a similar issue in Burris:
No. 17-0605/AR. U.S. v. Erik J. Burris. CCA 20150047. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
CITING RULES FOR COURTS-MARTIAL 905(e) AND 919(c), THE ARMY COURT HELD THAT THE FAILURE OF APPELLANT’S TRIAL DEFENSE COUNSEL TO OBJECT TO IMPROPER CHARACTER EVIDENCE AND IMPROPER ARGUMENT WAIVED ANY ERROR. THIS COURT, HOWEVER, TREATS SUCH FAILURES AS FORFEITURE AND TESTS FOR PLAIN ERROR. WHICH COURT IS RIGHT?
Briefs will be filed under Rule 25.
Disclosure: I represent both Kelly and Burris in my personal capacity.