Less than two months ago the Supreme Court reiterated that:

The terms waiver and forfeiture – though often used interchangeably by jurists and litigants – are not synonymous. Forfeiture is the failure to make the timely assertion of a right; waiver is the intentional relinquishment or abandonment of a known right.

Hamer v. Neighborhood Hous. Servs., __ U.S. __, 199 L.Ed.2d 249, 254 n.1 (Nov. 8, 2017) (quoting United States v. Olano, 507 U. S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U. S. 458, 464 (1938)) (marks omitted).

It’s a timely reminder.

Over and over again in 2017, military courts and lawyers said that the mere failure to make an argument or objection – whether due to inattentiveness, ignorance, or otherwise – waived the issue, and the year ended with CAAF granting review in multiple cases challenging that conclusion.

That makes waiver mania the #3 Military Justice Story of 2017.

Early in the year CAAF found waiver in United States v. Ahern, 76 M.J. 194 (C.A.A.F. Apr. 20, 2017) (CAAFlog case page). The finding was pretty unremarkable. At trial, Ahern’s defense counsel repeatedly said that he had no objection to the admission of Ahern’s statements that were at the heart of the appeal. That’s a big deal. “[U]nder the ordinary rules of waiver,” explained Judge Ryan for a unanimous CAAF, “Appellant’s affirmative statements that he had no objection to their admission also operate to extinguish his right to complain about their admission on appeal.” 76 M.J. 198.

But CAAF also noted that the rules of evidence make Ahern’s failure to object at trial a waiver of the issue on appeal. The rule – Mil. R. Evid. 304(f)(1) – applies specifically to an accused’s statements, and a similar rule – Mil R. Evid. 311(d)(2) – applies specifically to evidence derived from searches and seizures. Both are rules of passive waiver and they are wholly pragmatic, applying to “actions of trial defense counsel which leave appellate tribunals with insufficient factual development of an issue necessary to resolve a question of law raised on appeal.” United States v. Graves, 1 M.J. 50, 53 (C.A.A.F. 1975). But the decisive factor in Ahern was actual waiver – affirmative statements of no objection – not passive waiver.

After that, however, things started to get a little out of control.

Over the summer the Army CCA issued a series of opinions holding that the mere failure to object at trial constitutes waiver, contravening longstanding precedent that treats such failure as forfeiture. The first was United States v. Marcum, No. 20150500 (A. Ct. Crim. App. May 5, 2017) (link to slip op.), in which the CCA cited R.C.M. 919(c) for the proposition that failure to object to improper closing argument waives any error on appeal. The citation ignores a library of CAAF precedent, old and new. See United States v. Diffoot, 54 M.J. 149, 151 n.1 (C.A.A.F. 2000) (citing cases applying forfeiture “despite the language of ‘waiver’ in RCM 919(c)”); United States v. Pabelona, 76 M.J. 9, 11 (C.A.A.F. 2017) (applying forfeiture); United States v. Sewell, 76 M.J. 14, 21 n.2 (C.A.A.F. 2017) (applying forfeiture). It’s also contrary to pending amendments to the MCM that will explicitly make forfeiture the rule. And it makes military practice different from federal practice. See United States v. Young, 470 U.S. 1, 16-18 (1985) (applying forfeiture).

After the Army CCA issued its opinion in Marcum, it issued similar opinions in United States v. Kelly, 76 M.J. 793 (A. Ct. Crim. App. Jul. 5, 2017) (en banc); United States v. Sanchez, No. 20140735 (A. Ct. Crim. App. Jul. 17, 2017); United States v. Hoffman, 76 M.J. 758 (A. Ct. Crim. App. Jun. 27, 2017); United States v. Burris, No. 20150047 (A. Ct. Crim. App. Jul. 28, 2017); United States v. Bales, No. 20130743 (A. Ct. Crim. App. Sep 27, 2017). Those opinions formalized the reasoning of Marcum, and also expanded it to hold that the failure to object constitutes waiver of improper sentencing argument (Hoffman), and even of improper character evidence admitted on the merits (Burris).

The Navy-Marine Corps CCA quickly followed suit, issuing an opinion in United States v. Motsenbocker, No. 201600285 (N-M. Ct. Crim. App. Aug 10, 2017) (discussed here), that held that the failure to object to improper argument waives any objection. Momentum was building.

But then CAAF granted review in Marcum in October (noted here). The next day, the NMCCA reconsidered its opinion in Mostenbocker (recon. discussed here) and rejected the Army CCA’s approach, distinguishing Ahern and “adher[ing] to the longstanding precedent reaffirmed in PabelonaFletcher, and Diffoott and apply[ing] a plain error analysis to those allegations of improper argument not preserved by objection.” Slip op. at 5. Additional CAAF grants on this issue followed at the end of the year, in Kelly and Burris (noted here).

Alone that’s notable, not mania. But there’s more.

In United States v. Bailey, __ M.J. __ (C.A.A.F. Nov. 29, 2017) (CAAFlog case page), CAAF considered a defense request for an instruction to the members on the meaning of the term incapable in the element of incapable of consenting. CAAF rejected the requirement for any instruction, and particularly the instruction proposed by the defense at trial (that “contain[ed] an inaccurate statement of law.” Slip op. at 4). One flaw in the defense-requested instruction was it required total incapacity, and CAAF found that to be more than the statute requires.

Bailey’s brief to CAAF had argued that the statute actually required total incapacity, and CAAF’s decision rejected that argument. But the Coast Guard Government Appellate Division’s brief tried to dodge it, arguing that Bailey:

waived this argument by conceding at oral argument in this case before the CGCCA that the definition [offered at trial] was incongruent with the language approved in Pease.

Gov’t Div. Br. at 11 n.1 (emphasis added) (discussed here). There’s an obvious appeal to using waiver to prevent an opponent from making an argument. But the Government Division’s claim of waiver, based on mere acknowledgement during oral argument of the obvious differences between an instruction proposed at trial and a definition written years later in a different case in a different service, was remarkable.

Even more remarkable was the application of waiver by a three-judge panel of the Army CCA in United States v. Mark, No. 20160101 (A. Ct. Crim. App. Oct. 23, 2017) (per curiam) (discussed here). Private Mark was convicted of numerous sexual offenses after the military judge instructed the members that they could use the charged offenses as evidence of Mark’s propensity to commit the same charged offenses. The defense initially objected, but the objection was withdrawn.

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) (the #3 Military Justice Story of 2016). Prior to 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), which reached the exact opposite conclusion of Hills and explicitly allowed the use of charged offenses for propensity purposes. So, by withdrawing the objection, Private Mark’s defense counsel merely followed the CCA’s binding precedent.

The CCA’s subsequent application of waiver sent a dangerous message: If you follow the Army CCA’s published opinions, you waive errors on appeal.

Mark petitioned CAAF for review on December 21.

Waiver mania harms the prosecution too, as the Army CCA rejected a prosecution appeal in United States v. Suarez, No. 20170366 (A. Ct. Crim. App. Sep 27, 2017) (discussed here), on the basis that “the substantive issue of this appeal was waived by the government at trial.” Slip op. at 8.

At stake was the admission of six images of suspected child pornography discovered on the accused’s cell phone after it was searched pursuant to an authorization. The device was protected by a passcode, investigators asked the accused for that passcode, and the defense moved to suppress. See, generally, United States v. Mitchell, 76 M.J. 413 (C.A.A.F. Aug. 30, 2017) (CAAFlog case page) (the #4 Military Justice Story of 2017). Responding to the defense motion, the prosecution initially conceded that accused’s act of providing the passcode to the investigator was both testimonial and incriminating, meaning that the request itself was an interrogation implicating the accused’s rights under the 5th Amendment and Article 31(b).

The military judge suppressed the images and the prosecution appealed. The appeal made numerous arguments including that the questioning did not actually constitute interrogation. Whether questioning constitutes an interrogation is a question of law reviewed de novo, and de novo review means independent review. But the CCA didn’t conduct an independent review. Instead, it applied waiver. It then rejected the appeal without considering the prosecution’s arguments.

American jurisprudence penalizes the failure to make a timely objection. “No procedural principle is more familiar to [the Supreme Court] than that a constitutional right, or a right of any other sort, may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.””United States v. Olano, 507 U.S. 725, 731 (1993) (citing Yakus v. United States, 321 U.S. 414, 444 (1944)). Forfeited errors are tested under the plain error standard, where the “appellant has the burden of demonstrating: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the accused.” United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F., 2011). It’s a substantial burden that grants relief from only the most obvious and material errors.

When waiver applies, however, there can be no relief. No matter how serious the issue, how central it was to the trial, and how negatively it affects public perception of the military justice system, there is said to be no error at all. That’s easily justified when the waiver is clearly the product of an appellant’s intentional relinquishment of a known right; like when an accused waives his right to remain silent and testifies, or waives his right to a trial and pleads guilty, or waives an objection and agrees to admission of evidence. But when waiver is applied to something less – like mere silence – it undermines faith that the military justice system seeks to do justice at all.

Twenty years ago the Air Force CCA observed the consequences:

When we pretend to apply “waiver” to what is in any event a meritless assignment of error we exercise a clumsy legerdemain which detracts from, rather than adds to, public perception of the fairness of our jurisprudence.

United States v. Roberson, 46 M.J. 826, 828 (A.F. Ct. Crim. App. 1997).

Disclosure: I represent Major Burris and Sergeant Kelly in my personal capacity. CAAF granted review of waiver issues in both of their cases. 

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