Waiver mania was the #3 Military Justice Story of 2017, primarily because of a series of cases from the Army CCA holding that the mere failure failure to object to improper argument at trial waives (meaning extinguishes) any error. The decisions contravene longstanding precedent that treats such failure as forfeiture (meaning that the appellant is entitled to relief if the improper argument rises to the level of plain error), and the pending amendments to the MCM (now overdue) are expected to change the text of the applicable rules to conform with the precedent interpreting their meaning.

Nevertheless, the first such decision was United States v. Marcum, No. 20150500 (A. Ct. Crim. App. May 5, 2017) (link to slip op.). CAAF granted review in Marcum in October (discussed here). But the biggest such decision was in United States v. Kelly, 76 M.J. 793, No. 20150725 (A. Ct. Crim. App. Jul. 5, 2017) (en banc) (link to slip op.), in which the en banc CCA unanimously applied waiver. CAAF granted review of a different issue in Kelly (noted here), but then expanded that review to also make Kelly a Marcum trailer (noted here). The granted waiver issue in Marcum and Kelly states:

APPELLANT CLAIMED THE PROSECUTION’S ARGUMENTS ON FINDINGS AND SENTENCE WERE ERRONEOUS AND PREJUDICIAL. THE COURT BELOW APPLIED THE STANDARD OF REVIEW IN UNITED STATES v. AHERN, 76 M.J. 194 (C.A.A.F. 2017), AND DID NOT FIND PREJUDICE. DID THE COURT BELOW ERR, BECAUSE THE PROPER STANDARD OF REVIEW IS FOUND 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)?

The CCA also applied waiver in United States v. Burris, No. 20150047 (A. Ct. Crim. App. May 8, 2017) (mem. op.), aff’d on recon., No. 20150047 (A. Ct. Crim. App. July 28, 2017) (unpub. sum. disp. on recon.). CAAF granted review of the waiver issue in that case too (noted here), with a bluntly-worded 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?

Disclosure: I represent the appellants in both Kelly and Burris.

Somewhat concurrently, the Navy-Marine Corps CCA adopted – but then reconsidered and rejected – the CCA’s finding that the mere failure to object to improper argument constitutes waiver. See United States v. Motsenbocker, No. 201600285 (N.M. Ct. Crim. App. Aug 10, 2017) (discussed here), recon. granted, No. 201600285 (N.M. Ct. Crim. App. Oct 17, 2017) (discussed here).

With the Army CCA’s finding of waiver squarely before CAAF in two merits cases and one trailer, and with the Navy-Marine Corps CCA rejecting waiver, doubt is starting to appear at the Army court. Specifically, in a recent opinion in United States v. Koch, No. 20160107 (A. Ct. Crim. App. Jan. 29, 2018) (link to slip op.), a three-judge panel of the CCA applies forfeiture to the failure of the appellant’s counsel to object to improper argument, acknowledging that:

Regardless of how persuasive our sister court’s [the NMCCA’s] discussion of Ahern as applied to unpreserved error may be (see concurring and dissenting opinions below) we are obligated to follow the precedent of this Court.

Our superior court has granted a petition to decide this issue. United States v. Kelly, No. 17-0559/AR (C.A.A.F. 20 Dec 2017) (order). As we find any error in this case does not amount to plain error, for purpose of judicial economy we apply waiver but will also test for plain error.

Slip op. at 8. Judge Wolfe writes for the panel and also writes a separate concurring opinion explaining:

I would also revisit our holding in Kelly that the failure to object to errors in argument waives, rather than forfeits, the error. *FN

*FN 13* I was the author of this Court’s opinion in Kelly. Nonetheless, I am persuaded by our sister court’s treatment of the issue in Motsenbocker that we (or at least I) overstepped. While I recognize that the issue is now squarely before the CAAF, I would not wait to revisit the issue.

Slip op. at 17.

Senior Judge Mulligan and Judge Febbo, however, while concurring in the application of plain error review, would not revisit the CCA’s decision in Kelly. Judge Febbo writes:

Additionally, I see no reason to revisit United States v. Kelly, 76 M.J. 793 (Army Ct. Crim. App. 2017), as Judge Wolfe suggests. I would apply the plain language of R.C.M. 919(c). As CAAF stated in United States v. Reese, courts “apply the ordinary rules of statutory construction in interpreting the R.C.M.” 76 M.J. 297, 301 (C.A.A.F. 2017) (analyzing the plain language of R.C.M. 603(d)). R.C.M. 919(c) clearly states that an appellant who fails to object to an improper argument thereby waives objection.

Slip op. at 20. Footnote 14 adds: “The use of the term ‘waiver’ was intentional and the R.C.M. is consistent with applying waiver for failure to objections made during arguments in both findings and sentencing. See R.C.M. 919(c) and l001(g).”

I recently filed the Appellant’s brief in Burris with CAAF (available here). The brief makes numerous arguments against applying waiver, including that even though R.C.M. 905(e) and 919(c) use the word waiver, the structure of the rules, their history, and CAAF’s precedent all show that the word waiver in those rules actually means forfeiture.

4 Responses to “The Army CCA has second thoughts about waiver mania”

  1. stewie says:

    I see COL Mulligan is leaning into his rep as a government…aficionado. ;)

  2. Zachary D Spilman says:

    It’s worth mentioning that the CCA’s finding of waiver in Kelly and Burris (and the other cases too, I think) came as a surprise and after the Government Appellate Division agreed that plain error review applies. I even presented oral argument on the existence of a plain error in Burris. Waiver wasn’t on the table. 

  3. Philip D. Cave says:

    Yes as to that happening Marcum.  The issue came to us out of left field.

  4. Bill Cassara says:

    In a recent oral argument the GAD said waiver was the wrong approach, and the court should apply the Plain Error Doctrine. They applied waiver.