CAAF decided the Army case of United States v. Tovarchavez, 78 M.J. 458, No. 18-0371/AR (CAAFlog case page) (link to slip op.), on Friday, May 31, 2019. A divided court concludes that any time an error is constitutional in nature – even if it was forfeited by the failure to object at trial and is reviewed on appeal under the plain error standard – reversal is required unless the error is harmless beyond a reasonable doubt. Non-constitutional errors, in contrast, need only be merely harmless to avoid reversal. Accordingly, CAAF reverses the decision of the Army CCA that affirmed the conviction by applying the mere harmlessness standard, and it also reverses the findings and sentence due to a Hills error.

Judge Ryan writes for the court, joined by Judges Ohlson and Sparks. Judge Maggs dissents, joined by Chief Judge Stucky.

CAAF granted review of a single issue:

Whether the Army Court erred, first, in finding that this Court overruled sub silencio the Supreme Court holding in Chapman v. California, 386 U.S. 18, 24 (1967), and this Court’s own holdings in United States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006), and in United States v. Hills, 75 M.J. 350, 357 (C.A.A.F. 2016), and, consequently, in testing for prejudice in this case using the standard for nonconstitutional error.

In 2015, Specialist (E-4) Tovarchavez was tried by general court-martial for sexually assaulting another soldier on two occasions. The military judge instructed the members that they could use the charged offenses as evidence of Tovarchavez’s propensity to commit the charged offenses (the Hills error), and the defense did not object to the instruction. Tovarchavez was then convicted of one of the two charged offenses and sentenced to confinement for two years, reduction to E-1, total forfeitures, and a dishonorable discharge.

An error is when something is done wrong at trial. As a general rule, errors can be preserved, forfeited, and waived. An error is preserved by a timely objection, it is forfeited by the failure to object, and it is waived when the accused knowingly and intentionally relinquishes the underlying right (or when a rule makes the failure to assert the right a waiver). At the two extremes, an accused is entitled to relief from a preserved error, and a waiver means that there is no error. Forfeited errors are in the middle, and they are reviewed using the plain error test. The plain error test penalizes the accused (who failed to object at trial) by requiring on appeal that he show that there (1) was an error, (2) that is plain or obvious, and (3) that caused material prejudice to a substantial right.

Identifying prejudice, however, is a key component of appellate review. Early American courts – applying English common law rules – would reverse a conviction (and authorize another trial) for any error. Congress eventually enacted rules that permitted reversal only where the error affected substantial rights, creating the harmless error doctrine. Under the harmless error doctrine, a conviction may be affirmed despite almost any kind of error at trial if the error is found to be harmless. See Fed. R. Crim. Proc. 52. See also Stephen A. Saltzburg, The Harm of Harmless Error, 59 Va. L. Rev. 988, 1006 n.57 (1973) (discussing 28 U.S.C. § 2111 as identical to language first enacted in 1911).

Congress explicitly incorporated the harmless error doctrine into military law in Article 59(a), which states:

A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.

The harmlessness of an error (or the existence of prejudice) is a separate consideration from whether an error was preserved, forfeited, or waived, and it involves separate tests. An ordinary error is harmless “if the factfinder was not influenced by it, or if the error had only a slight effect on the resolution of the issues of the case.” United States v. Muirhead, 51 M.J. 94, 97 (C.A.A.F. 1999). But if the error affects a constitutional right, then a heightened standard applies: the error must be harmless beyond a reasonable doubt and an “error is not harmless beyond a reasonable doubt when there is a reasonable possibility that the error complained of might have contributed to the conviction.” United States v. Hills, 75 M.J. 350, 357 (C.A.A.F. 2016) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)) (additional citation omitted).

Chapman was a hugely important case in the area of harmless error because it held that even constitutional errors (in that case it was commenting on the accused’s failure to testify) can be harmless, but only if the error meets the higher standard of harmlessness beyond a reasonable doubt. The facts and procedural posture of Chapman are very similar to those of Tovarchavez: Both cases involve constitutional error with no objection at trial and a post-trial change in the law that clarified that the error was actually an error, and in both cases the lower court applied mere harmlessness to affirm the conviction.

Specifically, when it reviewed the improper use of charged offenses for propensity purposes (the Hills error) in Tovarchavez, the Army CCA applied the mere harmlessness standard (used for nonconstitutional errors) rather than the harmless-beyond-a-reasonable-doubt standard (used for constitutional errors like a Hills error). Writing for a two-judge majority of a three-judge panel of the CCA, Judge Wolfe held that:

the appropriate prejudice analysis for unpreserved error–even error of a constitutional magnitude–is whether the error [merely] materially prejudiced the substantial rights of appellant.

United States v. Tovarchavez, No. ARMY 20150250, slip op. at 10 (A. Ct. Crim. App. July 19, 2018) (link to slip op.). Then the majority found the error harmless (though not harmless beyond a reasonable doubt):

Given the strength of the evidence . . . we fail to find a material prejudice to any of appellant’s substantial rights. . . .

But to the extent we are wrong, we have also considered whether the evidence is strong enough to convince us that the error was harmless beyond a reasonable doubt. . . . We are not convinced.

Tovarchavez, slip op. at 14. Senior Judge Campanella dissented, castigating “the majority [for] creat[ing] a dispute where there is none between the parties,” slip op. at 18, while “agree[ing] with the majority’s assessment that the instructional error here was not harmless beyond a reasonable doubt,” slip op. at 19. CAAF then granted review.

In Friday’s opinon a majority of CAAF concludes that regardless of whether an error is preserved or forfeited, if the error is constitutional in nature then reversal is required unless the error is harmless beyond a reasonable doubt.

Writing for the majority, Judge Ryan explains that the Article 59 requirement of material prejudice to a substnatial right of the accused “must be understood by reference to the nature of the violated right.” Slip op. at 3. Judge Ryan writes:

In this case, all agree that there was error, that the error was constitutional in nature, and that, in light of Hills, the error was clear or obvious. The sole question is whether the error “materially prejudiced a substantial right of the accused. . . .

First, the overwhelming weight of this Court’s precedent demonstrates that material prejudice for forfeited constitutional errors under Article 59, UCMJ, is assessed using Chapman’s “harmless beyond a reasonable doubt” test. Jones, 78 M.J. at 45. Second, and relatedly, any interpretation of “material prejudice” must be squared with Chapman’s requirement that constitutional error requires reversal of a conviction unless it can be shown “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” 386 U.S. at 24. Third, we are unpersuaded that the federal circuit courts’ frequent application of a lower standard when assessing prejudice arising from forfeited constitutional errors either permits or requires us to jettison the Chapman standard for constitutional error when assessing prejudice under Article 59, UCMJ.

Slip op. at 8.

The majority also chastizes the Army CCA for its adventurism. Judge Ryan writes that Judge Wolfe’s majority opinion was “an incorrect application of the law and flatly inconsistent with established precedent of this Court,” slip op. at 2, while “the lone dissenter at the ACCA, in contrast, persuasively and succinctly explained that the ACCA majority incorrectly applied this Court’s controlling precedent,” slip op. at 3 n.3. Flogging the lower court and the Government Division for “grasping at thin reeds indeed,” and “unreasonably cling[ing]” to parsed words from a few decisions, slip op. at 10, Judge Ryan dismisses any suggestion that CAAF’s precedent “endorsed a different standard for material prejudice [in a case like this] or sub silentio overruled precedent that holds squarely to the contrary [to the Amy court’s decision],” slip op. at 11. Rather, she explains:

precedent, viewed in tandem with our cases assessing prejudice for nonconstitutional errors, demonstrates clear direction running through our case law: we test for prejudice based on the nature of the right violated, whether the error is preserved or not.

Slip. op. at 11. The battering continues a few pages later, with Judge Ryan writing that:

the position taken by the ACCA has been raised in dissent myriad times. . . . And we have repeatedly rejected the argument, presented in each of those cases, that, when assessing prejudice under Article 59, UCMJ, we either should or must follow the plain error doctrine applied in the federal courts. The mere existence of the labored and erroneous CCA opinion in this case or dissents in other cases from this Court neither undermines the force of stare decisis nor makes our precedent unworkable.

Slip op. at 18 (citations omitted) (emphasis added). Ouch.

The dissenters don’t exactly defend the Army court, but they do reach the same conclusion. Writing for himself and Chief Judge Stucky, Judge Maggs asserts that:

The Supreme Court’s decisions in [Johnson v. United States, 520 U.S. 461, 467 (1997)] and [United States v. Cotton, 535 U.S. 625 (2002)] show that the Constitution does not require courts to apply Chapman’s harmlessness beyond a reasonable doubt test when reviewing forfeited objections to constitutional errors.  The standard of review was contested in both cases and in both cases the Supreme Court did not test the constitutional error for harmlessness beyond a reasonable doubt. All of the other United States Courts of Appeals that hear criminal cases agree with this position; none of them applies the Chapman harmlessness beyond a reasonable doubt test when reviewing forfeited constitutional objections. Among all these federal courts, our Court is the outlier, and our position is incorrect.

Diss. op. at 3-4. A footnote then cites cases from each circuit that “reviewed forfeited objections to constitutional errors using the Olano test rather than a test of harmlessness beyond a reasonable doubt.” Diss. op. at 4 n.4.

Judge Ryan and the majority reject Judge Maggs’ argument that Johnson and Cotton applied a lesser standard, with a footnote that states:

Later cases—Johnson and Cotton—involved forfeited constitutional error, but in both cases the Supreme Court side stepped the issue of prejudice and resolved the case on the fourth prong of Olano (which has not been adopted in the military system, see supra note 14). Johnson, 520 U.S. at 469; Cotton, 535 U.S. 625, 632–33 (2002).

Slip op. at 16 n.15. And, indeed, a review of Johnson and Cotton show that they simply do not say what the dissenters claim they say because in both cases the Court expressly declined to decide whether the error was harmless or not. First, in Johnson, it held that “we need not decide that question because, even assuming that the failure to submit materiality to the jury ‘affected substantial rights,’ it does not meet the final requirement of Olano.” 520 U.S. at 469. Then, in Cotton, the Court held that: “As in Johnson, we need not resolve whether respondents satisfy this element of the plain-error inquiry, because even assuming respondents’ substantial rights were affected, the error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings.” 535 U.S. 632-33 (citation omitted). Rather than turning on prejudice, both Johnson and Cotton turned on the fourth prong (the final requirement) of Olano; something that CAAF has consistently refused to apply to military appeals. Accordingly, while Judge Maggs is technically correct that “in both cases the Supreme Court did not test the constitutional error for harmlessness beyond a reasonable doubt,” that’s only because in both cases the Court did not test for harmlessness at all.

Judge Ryan’s majority opinion contains this footnote that seems to address the dissenters’ conflation of plain error review and harmless error review:

In the interest of clarity, we note, as demonstrated throughout this opinion, that distinguishing between plain error and constitutional harmlessness is analytically flawed. The proper distinctions, rather, are between preserved and forfeited error and constitutional and nonconstitutional rights. Forfeited errors are subject to plain error review, while preserved errors are not. Under Article 59, UCMJ, all errors of law—preserved or not—must have prejudiced an appellant’s rights, and the test we employ to determine prejudice depends on the nature of the right. See supra pp. 8–12.

Slip op. at 18 n.18.

As for the federal circuit cases cited by Judge Maggs, a cursory review suggests that they do not clearly state the proposition that a forfeited (plain) constitutional error need not be harmless beyond a reasonable doubt to permit the conviction to be affirmed. Judge Ryan explains why – while also explaining why military practice is necessarily an outlier – in her majority opinion:

To be certain, the federal circuit courts appear to regularly evaluate prejudice arising from forfeited constitutional errors by requiring an appellant to establish that, “had the error not occurred, there is a ‘reasonable probability’ that” the outcome would have been different. And we often both review and give persuasive weight to the decisions of the federal circuit courts of appeal. Nevertheless, we decline to follow their lead because we do not find a satisfactory rationale for the federal courts’ side stepping of Chapman and we must interpret our own statute consistent with our precedent.

Article 59(a), UCMJ, only permits appellate error correction where the error “materially prejudices . . . substantial rights.” This is true regardless of whether the error was preserved or forfeited. As discussed supra pp. 8–12, the settled practice of this Court, consonant with the statutory requirements of Article 59(a), UCMJ, is to assess prejudice—whether an error is preserved or not—based on the nature of the right.

The federal circuit courts review errors under a different framework: preserved error under Fed. R. Crim. P. 52(a) and forfeited error under Fed. R. Crim. P. 52(b).

Slip op. at 15 (citations omitted). Furthermore, even if the federal circuits test only for a reasonable probability that the error affected the outcome (that is, mere harmlessless), any error that is not merely harmless is also not harmless beyond a reasonable doubt. It’s the rare case indeed where – as in Tovarchavez – an error is slight enough to be harmless but not so slight as to be harmless beyond a reasonable doubt.

To that end, the burden matters. If, in Tovarchavez, the burden is on the defense to show that the error is not merely harmless, then the defense loses because the error is merely harmless. But if, however, the burden is on the Government Division to show that the error is not harmless beyond a reasonable doubt, then the Government Division loses because the error is not harmless beyond a reasonable doubt.

The burden, explains Judge Ryan, is on the Government Division:

While a different question than what prejudice must be established, which is clear, we recognize that this Court’s precedent is less than clear regarding the party that bears the burden with respect to prejudice. Nonetheless, Chapmana case just like this one—clearly dictates that, in the case of a constitutional error, the “beneficiary of the error,” the Government here, must show that the error was harmless beyond a reasonable doubt. 386 U.S. at 24. To the extent that the discussion in United States v. Olano, 507 U.S. 725 (1993), suggests a different allocation of the burden, its interpretation is based on the text of Fed. R. Crim. P. 52(a) (preserved error) and Fed. R. Crim. P. 52(b) (forfeited error). Olano, 507 U.S. at 734–35. (“This burden shifting is dictated by a subtle but important difference in language between the two parts of [Fed. R. Crim. P.] 52.”). In contrast, Article 59, UCMJ, does not delineate between preserved and forfeited error.

Slip op. at 7 n.6 (emphases in original).

The majority then reviews the reasons why the error is not harmless beyond a reasonable doubt and the conviction must be reversed:

The ACCA’s conclusion that this Hills error was not harmless beyond a reasonable doubt was supported by two specific observations. First, while SPC JR’s testimony describing the event was supported by DNA evidence, the DNA evidence did not directly contradict the defense theory of the case. Id. at *22, 2018 WL 3570591, at *9. Second, Appellant’s text message apologies do not unassailably establish his consciousness of guilt.

First, the presence of DNA was entirely consistent with the defense theories that that SPC JR either consented or that Appellant acted under a reasonable mistake of fact as to consent, the mere presence of his DNA does not defeat his defense. Second, while Appellant’s text message apologies could be interpreted as establishing consciousness of guilt, they could also have been “statements from someone who knows they have acted inappropriately, but not criminally.” Id., 2018 WL 3570591, at *9. Third, Appellant was acquitted of the Specification 1, making it less clear that the bootstrapping effect of the instruction did not “tip[] the balance” with respect to the members’ ultimate determination regarding Specification 2. Hills, 75 M.J. at 358.

Slip op. at 20.

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appelllee’s (Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview
• Oral argument audio (wma) (mp3)
CAAF opinion
Blog post: Opinion analysis

21 Responses to “Opinion Analysis: A divided CAAF holds that all constitutional errors – whether preserved or forfeited – are reviewed for harmlessness beyond a reasonable doubt, in United States v. Tovarchavez”

  1. All the Errors? says:

    What about structural errors like the right to counsel, or a jury?

  2. Zachary D Spilman says:

    A structural error is a “defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Johnson v. United States, 520 U.S. 461, 468 (1997) (quoting Arizona v. Fulminante, 449 U.S. 279, 310 (1991)). Structural errors “defy analysis by ‘harmless-error standards'” Fulminante, 449 U.S. at 309, and so reversal is automatic. See Neder v. United States, 527 U. S. 1, 7 (1999).

    While the title of this post says all constitutional errors are reviewed for harmlessness beyond a reasonable doubt, structural errors are indeed an exception because they are not reviewed for harmlessness at all.

    Unless the structural error is raised for the first time in a collateral proceeding after direct review is complete. See, generally, Weaver v. Massachusetts, 137 S. Ct. 1899 (2017). In that case the petitioner bears the ordinary burdens under Strickland v. Washington, 466 U. S. 668, 694 (1984).

  3. Garlan Burris says:

    Wouldn’t the Maj. Burris ” Beast situation” fall into this finding?

  4. Justin Henderson says:

    I appreciate the certainty that Judge Ryan provides here.  Since it was settled law under Chapman that constitutional error can be harmless, the burden outcome of Tovarchavez seems . . . well, I can’t help but think of some of Justice Scalia’s warnings, for example:

    “No procedural principle is more familiar to this Court than that a constitutional right 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.”  Yakus v. United States, 321 U.S. 414, 444 (1944); see also United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 238-239 (1940).  Forfeiture is “not a mere technicality and is essential to the orderly administration of justice.”  9 C. Wright & A. Miller, Federal Practice and Procedure § 2472, p. 455 (1971).  [Rules like Fed R. Crim. Pro. 52] reflect the principle that a trial on the merits, whether in a civil or criminal case, is the “main event,” and not simply a “tryout on the road” to appellate review.  Cf. Wainwright v. Sykes, 433 U.S. 72, 90 (1977).  The very word “review” presupposes that a litigant’s arguments have been raised and considered in the tribunal of first instance.  To abandon that principle is to encourage the practice of “sandbagging”: suggesting or permitting, for strategic reasons, that the trial court pursue a certain course, and later—if the outcome is unfavorable—claiming that the course followed was reversible error.

    Freytag v. Commissioner, 501 U.S. 868, 894-895 (1991) (Scalia, J., concurring); see also Puckett v. United States, 556 U.S. 129, 134 (2009) (“contemporaneous-objection rule prevents a litigant from ‘sandbagging’ the court—remaining silent about his objection and belatedly raising the error only if the case does not conclude in his favor”) (citing Wainwright 433 U.S. at 89; United States v. Vonn, 535 U.S. 55, 72 (2002)).
    For the most part, the defense’s will to win at trial will obligate their objection to clear (“plan or obvious”) error.  But moving forward, does the savvy defense counsel still object to closer calls?  Instructional error of a constitutional (notice) dimension?  Improper argument that reaches into fifth amendment matters?  On that front, I’m not sure how this opinion squares with the holding from last term in Andrews, reviewing improper argument that included, inter alia, comments implicating the accused’s Sixth Amendment counsel rights:

    [W]e agree with the lower court that there was severe prosecutorial misconduct, and we too conclude the weight of the evidence favors the Government such that Appellant cannot establish prejudice.

    United States v. Andrews, 77 M.J. 393, 402 (C.A.A.F. 2018) (emphasis added).

  5. Isaac Kennen says:

    Justin Henderson,
    I agree that, in a perfect world, we would strictly apply the principle of forfeiture to error that was not preserved at trial. That would, indeed, discourage “sandbagging” by wily defense counsel.
    Of course, this is not a perfect world. And, far from being “wily,” military trial defense counsel are often lawyers with less than 4 years of practice under their belt. Even their “senior” counsel typically only have 2 or 3 years more. 
    In that light, saddling a service member with an inexperienced lawyer and then applying forfeiture as if we had detailed Abraham Lincoln to the defense seems a bit disingenuous.

  6. Justin Henderson says:

    Isaac, my errors as junior counsel were legion, so I’m sympathetic to that view.  (Though perhaps less numerous, they grow only more ornate with time.)  But a few points in response:
    1. Trial counsel have just as much experience, and, unlike the Tovarchavez and Andrews counsel, they’re never civilians.
    2. Whether constitutional, statutory, or “military”–for those who still believe in that–the process that’s due on review is not dependent on counsel experience.
    3.  Lastly, I have found that junior military counsel, like almost any other Solider, Sailor, Airman, or Marine, more often than not perform to expectation.  Creating incentives to withhold objections will therefore likely lead to . . . withheld objections.

  7. Isaac Kennen says:

    A few thoughts in response:
    1. It is true that military prosecutors are often equally inexperienced to military trial defense counsel. But that is less concerning because government counsel’s client isn’t facing a loss of liberty.
    2. The military appellate system differs in purpose from the civilian appellate system. One key purpose of the military appellate system is to make up for the fact that courts-martial lack juries, the government hand-picks its members, and there is no need for unanimous verdicts. So we have more robust appellate rights – including, most notably, the power of the CCA to substitute its judgement for the trial court to render unreviewable acquittals on appeal in cases which that court assesses to be factually insufficient to establish guilt beyond a reasonable doubt. That is extraordinary- Congress has given no other system or  appellate courts such power. The CCA doesn’t merely “review.” It, in a very real way, “rehears” the case.
    3. I truly do want to believe people perform to expectation. I think that’s a nice, heart-warming thought. But, my experience suggests that while high expectations can provide powerful motivation, the performance of our subordinates tends to be capped at training and capacity, and I would be a poor leader to expect more than the training I have provided and the capacity I have fostered allows. There is no shortcut. Like many things in life, you will tend to get back no more than what you put in. In that vein: There is only so much a JAG with less than 4 (or 10, or 20) years of practice experience can reasonably be expected to know. No matter what expectations we may levy, there is an unavoidable competence cap, and it’s well below the level of competence needed to justify a strict forfeiture rule.

  8. Justin Henderson says:

    2.  Even in my softest-hearted view of the Code, I still can’t see 10 USC 866 as granting CCAs anything other than a plenary power to review a closed record, not to conduct its own rehearing.  And no system requires the government to prove its case twice over no objection from the defense.
    3.  10 USC 859 is a not-that-strict forfeiture rule.  As Zach noted above, this is mostly about the assignment of burden.

  9. Isaac Kennen says:

    Justin Henderson,
    I concur that a CCA’s power under Art 66(d)(1) to “determine controverted questions of fact” is limited to the “record” as that term is defined by Art 66(e). That includes “any portion of the record in the case that is designated as pertinent by either of the parties.”
    And, of course, if that expansively-defined “record” doesn’t include evidence the CCA finds necessary to decide the case, there is always the power of the Court to order a Dubay hearing.
    Given those dynamics, I’m not certain being bound to consider only matters of “record” is a significant impediment.

  10. Justin Henderson says:

    No, the concept of the “record” is extremely significant, both to the duties of the CCA generally and in particular the Tovarchavez holding that the Government still bears the burden to prove harmlessness of certain errors at trial.
    The notion that the CCA “rehears” the case overinflates its authority.  As to approval of findings and sentence, the CCA is not authorized to consider anything outside the trial record—whether or not designated as pertinent by the parties.  If rehearing is required, Congress directs (in Art. 63) it to be done at the trial level.  If the record requires expansion to resolve appellate issues, it’s still not the CCA “rehearing” the facts; DuBay is also a trial-level hearing.
    How does this relate to plain error burdens?  Tovarchavez, given the error and the way it arose, may not be the starkest example.  But prejudice questions—harm or harmlessness—often turn on factual matters like trial evidence, theory, strategy, and instructions.  Failure to raise a timely objection, even or especially to constitutional error, not only deprive a trial court of the opportunity to correct the error; it leaves an undeveloped record on those matters. 
    For decades, our courts have embraced the error-correction and record-development purposes for encouraging trial objections, even as to constitutional error:

    A contemporaneous objection enables the record to be made with respect to the constitutional claim when the recollections of witnesses are freshest, not years later in a federal habeas proceeding. It enables the judge who observed the demeanor of those witnesses to make the factual determinations necessary for properly deciding the federal constitutional question.

    United States v. Miller, 31 M.J. 247, 252-53 (C.M.A. 1990) (quoting Wainwright v. Sykes, 433 U.S. 72, 88 (1977)) (emphasis added).  Wainwright concerned record preservation for habeas review, but Miller explicitly found that “the reason and rationale would be equally applicable on direct review.”  Id. at 253.  And neither Miller nor any subsequent case placed the burden on the government to disprove prejudice from forfeited objections in the absence of such a record.
    Just seven years ago, Judge Ryan herself seemed to agree!  She wrote the plain error holding in United States v. Humphries, where the forfeited error to the charging omission implicated Humphries’s “substantial right to notice under the Fifth and Sixth Amendments.”  71 M.J. 209, 215 (C.A.A.F. 2012) (citing United States v. Girouard, 71 M.J. 5, 10 (C.A.A.F. 2011)).  As she noted then, “To be clear, it is Appellee’s [(Humphries’s)] burden to prove material prejudice to a substantial right.”  Id. at 217 n.10 (citing Girouard, 71 M.J. at 11).
    Seems to be a different ballgame now. 
    I could be overstating the impact of Tovarchavez, of course A military judge should always be ready to correct plain or obvious error.  Nevertheless, to preserve its convictions, the Government must now be able to show that any and all constitutional errors were harmless, and must be able to do so without a developed factual record. 
    (P.S. I also don’t think “defense counsel inexperience”—the impacts of which Strickland governs—provide a justification for that rule.)

  11. stewie says:

    I think citing IAC as a remedy is a little naive given how rarely it’s applied to an accused’s benefit, and I think basically saying well it’s ok that the DC are inexperienced because so is the TC is a bit of a stretch.
    No rules are absolute, we have exceptions for everything and if I am looking for an area where an exception to the general rule of forfeiture, constitutional error would seem to fit nicely.
    And thinking those same inexperienced DC are going to ignore making an objection at trial, with more likely benefit at trial than on appeal?
    Come on.

  12. Justin Henderson says:

    Stewie, nobody cited ineffective assistance “as a remedy,” naively or otherwise.  And while rules do have exceptions, experience-level is not one of the few carved out from Strickland.  Inexperienced counsel are still presumed competent.
    I wasn’t speaking normatively, either, which I think was obvious.  But as a policy matter, if you think there should be a reduced standard or shifted burden for claims of Inexperienced Counsel Error on appeal, that’s… interesting.  Maybe a majority of CAAF agrees, if the Sixth Amendment error is “clear.”
    That underscores my point: IAC isn’t tested for plain error, but traditionally a demonstration of deficiency (clear or otherwise) still leaves appellant with the burden of showing prejudice.  Why?  Under Tovarchavez, shouldn’t that be on the G?

  13. stewie says:

    First, I didn’t claim there should be a reduced standard for IAC. So citing all of that is a bit of a waste of time. What I said was citing IAC as a remedy was a bit disingenuous given the standard for IAC was so high which is pretty clearly what you implied here: “the impacts of which Strickland governs”
    I said simultaneously acknowledging the lack of experience of junior counsel and asserting that they will be savvy enough to somehow suss out that they can sandbag (which is what you’d need to support your argument that somehow this will encourage junior counsel to do that) is also a bit disingenuous. Most junior counsel are focused on trying to find the correct objections and legal issues, and they, understandably, struggle sometimes to do that despite their best efforts.
    Objecting is almost always going to be the best answer at trial, savvy counsel or not. Counting on appellate rescue is almost always a really bad idea. What if you are wrong in your assessment that it is constitutional error? Then you’ve just lowered the success rate on appeal to pretty negligible levels.
    So you raise a potential that has a pretty minuscule change of coming to pass. A fear that is exceedingly low, and quite frankly, not really legitimately raised, again at least to your average TDS attorney. Now, if you claimed that a savvy experienced CDC might do this…I mean…maybe? But I’m willing to wager a lot of CDC on here would weigh-in and say it would be much more likely that they would object at trial, and that this case is not going to spur a legion of sandbagging.
    You have a constitutional level error without objection. How does the court deal with that? There are a variety of ways. They could use IAC to deal with it. But we know that will lead to almost every unobjected constitutional error going unresolved. You would appear to be ok with that, plenty of other people would not.
    The Court clearly is not. Thus, they establish a different standard for the government to overcome in that narrow and special circumstance. Nothing crazy here, nothing that is going to induce bad behavior.

  14. Justin Henderson says:

    Stewie, this began with my reference to a historical reason for adhering to plain error review: encouraging contemporaneous i objections. In response to the notion that defense counsel are too inexperienced for adherence to that principle, I noted that experience isn’t a structural advantage given to the G in the UCMJ, wasn’t at issue here, and falls under a different legal analysis.  (Again, IAC is not a “remedy,” Vizzini.) 
    Your point about counsel seeking trial victories is well-taken. I agreed in all of my posts.  But I was hypothesizing about “the savvy” DC, not the green one.  And I can give you a very good reason for withholding trial objection to constitutional error: in a losing case, DC can prevent the G from developing a watertight record to sustain its burden on appeal.
    Is that “disingenuous?” Not sure what the basis is to target my sincerity; if you think I have some other motive here, share it.  I don’t write pseudonomynously, so it should be easy for you to find my true beliefs.

  15. stewie says:

    Well, you know I’m left with a conundrum. You seem like a fairly intelligent guy, yet you are putting forward a proposition that a fairly intelligent guy would see as highly unlikely to be true or occur.
    Your latest comment, that if the DC thinks they are “losing” the case that they will fail to object in order to prevent the Gov from developing a watertight record on appeal is…well, quite frankly, nonsensical.
    No one thinks like that. Have you been a DC? I have, for way longer than is probably healthier for my career track although somehow I still got promoted. First of all, dirty little secret, most DC think they are losing most of the time. Occupational hazard, you are always worrying about what the panel is thinking, or are they getting it when you point out the holes in the government’s case, or will they get upset because your client isn’t testifying?
    Even in my most slam dunk cases, I still did a wee bit of pacing during deliberations. maybe it’s just me, but based on observing a lot of other DC, I don’t think so. So as a thought process, doesn’t happen very often except maybe a crusty few old highly experienced CDC.
    Second, again, this “strategy” you lay out only “works” if you are right about it being a constitutional error…if you aren’t, you are in a worse position. And if you are right then it doesn’t really “work”…because then the difference between the government’s burden in this situation and the government’s burden if you had objected is??? Let’s go back to CAAF:
    “In Friday’s opinon a majority of CAAF concludes that regardless of whether an error is preserved or forfeited, if the error is constitutional in nature then reversal is required unless the error is harmless beyond a reasonable doubt.”
    So, again, there is no benefit to sandbagging in this case, because you get the same standard of review, and there is a danger that if you are wrong about it being a constitutional error then you’ve just made your client’s case harder on appeal via forfeiture. Also, an “undeveloped record” can have as much danger for an appellant as the government so that’s not a slam dunk sneaky path either.
    So yeah, when I put that all together, and then I see what appears to be an intelligent person make fairly baseless arguments, I have to wonder…why?

  16. Justin Henderson says:

    Stewie, if you think that Tovarchavez-style plain error review–in which the standard and burden on review are the same regardless of trial objection–doesn’t incentivize withheld objections, I’ve failed to make the point clearly enough.
    I humbly add, against your depth and breadth of experience, I began this thread by citing the Justice who put forth this concept in multiple Supreme Court opinions.  But he was never a defense counsel, so . . . 

  17. stewie says:

    “To abandon that principle is to encourage the practice of “sandbagging”: suggesting or permitting, for strategic reasons, that the trial court pursue a certain course, and later—if the outcome is unfavorable—claiming that the course followed was reversible error”
    Yes yes, because we all know that DC just love to have additional sex assault charges on the charge sheet and they see such an advantage to the panel being told that one charge can help prove the others. Such a common strategy that is. Exactly what Scalia was talking about no doubt.
    You’ve cracked it Watson.

  18. Justin Henderson says:

    Stewie, sarcasm aside, you’re talking about the facts of Tovarchavez and the Hills error there.  But about the discouragement of contemporaneous objection, I wrote above:

    Tovarchavez, given the error and the way it arose, may not be the starkest example.  

    Mine was an unsatisfactory concession, I guess.   
    Yet you persist in ignoring all the law I’ve cited, including the other cases where CAAF did not hold the G to a harmlessness burden on review of forfeited error.  Do those not present different scenarios?  Humphries (notice error from charging); Andrews (error from improper argument concerning defense counsel’s role); or even Miller (if that Fifth Amendment error were to arise outside 304’s explicit waiver rule, e.g., trial testimony that violates an accused’s right to remain silent).
    A facile “nothing crazy here” analysis ignores that a savvy DC in those cases would indeed be faced with a decision about whether objecting–giving the MJ a chance to correct the error and the G a chance to develop the record–is worthwhile.

  19. stewie says:

    I’ve ignored most of the law you cited because the main thrust of your argument appears to be that mostly junior defense counsel are going to sandbag in a scenario where sandbagging literally does nothing for them and where they are very unlikely to have the experience and ability to suss out the narrow parameters of when it might work out in a way more favorable to their client.
    “Correcting the error” in this case is not going to happen via the MJ. The error was allowing the various charges to support each other as proof evidence. The MJ could either let it happen, or not. If not, there’s no error, and the panel is explicitly told to not do the thing that the TC is hoping they would do when they put a bunch of similar charges on the charge sheet. If there is an error, then the panel is given a green light to do the very thing we don’t want them doing, assume the extra charges are extra evidence that this guy is really guilty.
    So, you are telling me that the savvy DC says, yeah, let’s go with option 2. I know it’s REALLY likely to get my guy convicted on all charges, but MAYBE the appellate court will rescue this…with the most likely best-case scenario being my client has to go through this all. over. again. Pay more money, be subject to the same stress, with a developed record that we know worked towards conviction the first time around.
    I’m just going to be a wee bit skeptical of your police work there Lou.

  20. Justin Henderson says:

    Stewie, the only thing I said about junior defense counsel was that their experience level did not remove their performance from straightforward Strickland review.  Rather, I repeated that savvy defense counsel, in cases other than Tovarchavez, now have a new option: choose not to correct constitutional error at trial, knowing that the G still has to carry a plain error burden on review.
    I’m not playing hide-the-ball, so it’s odd to me that you’ve yet to squarely address this issue of law.  I’m sure you have your reasons.  Good luck in your future trials and comments.

  21. stewie says:

    “Savvy” defense counsel are going to be “savvy” enough to know it’s a stupid, low-probability strategy as likely to harm as hurt.
    And since most TDC are not this mythical “savvy” defense counsel, your average accused is going to have lesser protection from constitutional error, the very concern CAAF resolved in this situation.
    I’m pretty sure if you had argued that “savvy” defense counsel might sandbag they would have laughed in your face, particularly Judge Ryan, who is about as close to a Scalia-type on CAAF as they have.