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.

2 Responses to “CAAF rejects the certified issue in Hale; expands review of whether the mere failure to object constitutes waiver”

  1. Former DC says:

    Advisory opinion.  Interesting.  I had to go back and look at the certified question to see what the problem was, but it was obvious the moment I read the question as submitted.  It blows my mind that this made it from whoever in the appellate government shop wanted an appeal, through their leadership chain, and presumably several people in the TJAG’s office – all of whom are lawyers – without anyone seeing this was clearly phrased as requesting advice and not as claiming error.  I will refrain from commenting on what that failure means.
    The sad part is that this same issue could have been addressed had the question been phrased something like: “Did NMCCA use the improper standard to examine the conflict of interest…”.  Too late now.  Without looking at the Rules to confirm, my memory tells me that the entry of the summary affirmance means the Government has wasted their free shot via certification.

  2. Vulture says:

    This seemed like a good choice for one of the Top Ten but CAAF was quicker on the draw.
     
    One way to interpret this rejection is that the TJAG was in a win-win because if the Govt lost it just goes back to rehearing and that now sends a message to the Defense attorneys that you need to CYA with your rep in the balance.
     
    On the other hand CAAF didn’t answer the question of how far they are going to let the prosecution supervisory structure push the limits of propriety.  CAAF didn’t say “just one more time” or “Dubay”  or “this is your last warning.”  In as sense, it is the CAAF sending a message to the TJAGs to stop abusing the certification process, for sure.  But also saying “fix your own damn problems.”
     
    If this is the case, I am hopeful.