There is a big distinction between merely forfeiting an objection at trial and affirmatively waiving the issue. As Judge Ohlson stated in his dissent in United States v. Hardy, 77 M.J. 438 (CAAF 2018) (CAAFlog case page):

Waiver is serious business. It extinguishes rights of an accused, forever banishing waived legal issues from the purview of any appellate court.

In contrast, if a court finds that the accused merely “forfeited” their opportunity to object (as opposed to affirmatively waiving the objection), then that court may correct that error on appeal if the error is “plain.”

The distinction between waiver and forfeiture has been a topic of frequent discussion on this blog. Indeed, “waiver mania” was the #3 Military Justice Story of 2017. Then, the #5 Military Justice Story of 2018 was the President’s effort to “calm waiver mania” by amending the language of Rule for Courts-Martial 905(e) and 919(c) to make clear an intent to apply forfeiture rather than waiver to errors the accused could have objected to prior to trial, but didn’t.

The Air Force JAG Corps’ online journal, The Reporter, recently published an article by retired Air Force Colonel James A. Young entitled, “R.C.M. 905(e)’s New, Incomprehensible Standard.” Readers may recognize Colonel Young as the Senior Legal Advisor to CAAF Chief Judge Scott W. Stucky.

Colonel Young’s article first takes issue with the language the President used in R.C.M. 905(e) to express the concept of forfeiture. The language used in Executive Order 13825 – “forfeits absent an affirmative waiver” – is “novel, makes no sense, and demonstrates a significant misunderstanding of basic legal concepts.” Instead, Colonel Young posits that:

[If] the drafters meant that courts should review the failure to timely file [an objection] for plain error[,] . . . there is a time-honored way to express it: ‘forfeit absent plain error’ –the party abandons or relinquishes any claim of error unless he can ‘establish an error which ‘must not only be obvious and substantial, it must also have had an unfair prejudicial impact on the [member’s] deliberations.’

R.C.M. 905(e)’s New, Incomprehensible Standard, quoting United States v. Ruiz, 54 M.J. 138, 143 (C.A.A.F. 2000) (slip opin.).

With intent to employ that clarification, Colonel Young recommends that Rule for Courts-Martial 905(b) be amended, as follows (underlined for additions, lined through for omissions):

(b)  Any defense, objection, or request which is capable of determination without the trial of the general issue of guilt may be raised before trial. The following must be raised before a plea is entered if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits:

(1)  Defenses or objections based on defects (other than jurisdictional defects) in the preferral, forwarding, or referral of charges, or in the preliminary hearing A defect in instituting the prosecution, including:

(A)  improper venue;

(B)  prereferral delay;

(C)  a violation of the constitutional right to a speedy trial;

(D)  selective or vindictive prosecution;

(E)  an error in the preliminary hearing; and

(F)  an error in the pretrial advice;

(2)  Defense or objections based on defects in the charges and specifications (other than any failure to show jurisdiction or to charge an offense, which objections shall be resolved by the military judge at any time during the pendency of the proceedings); A defect in the charge sheet, including:

(A)  joining two or more offenses in the same specification (duplicity);

(B)  charging the same offense in more than one specification (multiplicity);

(C)  lack of specificity;

(D)  improper joinder; and

(E)  failure to state an offense; [This change would necessitate amending R.C.M. 907(b)(2)(E).]

(3)  Motions to suppress [S]uppression of evidence;

(4)  Motions for [D]iscovery under R.C.M. 701 or the production of witnesses or evidence;

(5)  Motions for severance of charges or accused;

(6)  Objections based on [(5)] [D]enial of request for individual military counsel or for retention of detailed defense counsel when individual military counsel has been granted.

Additionally, Colonel Young recommends that Rule for Courts-Martial 905(e) be amended, as follows:

(e) Effect of failure to raise defenses or objections. Deadline for a pretrial motion; Consequences of failing to timely file.

(1)  Setting the deadline. The court may set a reasonable deadline for the parties to make pretrial motions and schedule hearings on such motions. If the court does not set one, the deadline is before the accused enters pleas.

(2)  Extending or resetting the deadline. At any time before trial, the court may extend or reset the deadline for pretrial motions.

(3)  Consequences of not making a timely motion under R.C.M. 905(b). (1) Failure by a party to raise defenses or objections or to make motions or requests which must be made before pleas are entered under subsection (b) of this rule forfeits the defenses or objections absent an affirmative waiver. The military judge for good cause shown may permit a party to raise a defense or objection or make a motion or request outside of the timelines permitted under subsection (b) of this rule. If a party does not meet the deadline for raising an R.C.M. 905(b) motion, defense, or objection, it is untimely. A court is barred from considering such untimely filed motions, defenses, or objections absent the party showing good cause.

(4)  Other motions, requests, defenses, or objections, except lack of jurisdiction or failure of a charge to allege an offense, must be raised before the court-martial is adjourned for that case. Failure to raise such other motions, requests, defenses, or objections, shall constitute forfeiture, absent an affirmative waiver plain error.

With these changes, Colonel Young asserts that military practice would be brought into line with Federal Rule of Criminal Procedure 12(b)(3), which, as Colonel Young points out, is “neither a waiver nor a plain error rule.” Indeed, Rule 12(b)(3) is not a plain error rule because “unless the accused is able to show good cause for not timely waiving the issue, it may not be considered by the court.” Even plain error is extinguished absent a showing of good cause for the oversight at trial. But, neither is Rule 12(b)(3) a waiver rule because the overlooked error is not actually extinguished, instead, “an accused is entitled to raise a defense or objection outside the prescribed time limit for good cause shown.”

In that light, Colonel Young’s proposal is a bit curious. The draft language expressly uses the words “plain error” to describe the standard appellate courts would use to evaluate unpreserved issues. But, requiring the accused to show “plain error” before the court takes up such issues does not seem to align with the federal civilian rule, which, as Colonel Young notes, only requires similarly situated civilian accused to show “good cause” for being late.

One can imagine any number of scenarios that might give rise to “good cause” for allowing a defendant to raise error late that have nothing to do with the relative “plainness” of that error. One of the more predominant reasons for such leniency might be that the failures of government-employed, government-detailed, government-trained, government-supervised defense counsel are failures of the government. They are also a sort of failure which a layman accused is ill-positioned to recognize, much less remedy. In most cases, an accused whose government-provided trial lawyer fails to object will need to wait until the government gives him a new lawyer on appeal before that unpreserved error has any hope of being addressed. There is, of course, the possibility, as Colonel Young’s article posits, that trial defense counsel affirmatively decide not to file objections because:

Strong tactical considerations would militate in favor of delaying the raising of the claim in hopes of acquittal, with the thought that if those hopes did not materialize, the claim could be used to upset an otherwise valid conviction at a time when re-prosecution might well be difficult.

That is a common refrain by commentators, and even sometimes courts. Many are quick to attribute deft Machiavellian schemes to military defense counsel to explain away their failures to timely object. It seems to this commentator, however, that, in many cases, the foibles of military lawyers (on both sides of the courtroom – see, e.g., the conduct of a “Senior Trial Counsel” in United States v. Voorhees (CAAFlog case page)) can be more aptly explained by Hanlon’s Razor.

Wielding Hanlon’s razor, the Court declines to infer malice from conduct that can be adequately attributed to incompetence.

Liberty Life Assurance Co. v. Devillalvilla, No. 6:12-cv-1320-Orl-37TBS (M.D. Fla. Nov. 12, 2013).

The government’s failure to ensure the accused receives competent counsel might, potentially, be “good cause” enough for a court to allow an accused to raise objections in later proceedings, even objections related to error that isn’t “plain.” Some might say that sort of error – non-plain, esoteric error – is what appellate courts were created to deal with in the first place.

One Response to “Scholarship Saturday: Waiver and forfeiture – a proposal to further amend Rule for Courts-Martial 905”

  1. stewie says:

    100 percent agree Issac. The idea that most defense counsel are genius level schemers is cray cray. Hanlon’s Razor definitely applies.