The Army CCA’s published en banc opinion in United States v. Kelly, 76 M.J. 793, No. 20150725 (A. Ct. Crim. App. Jul. 5, 2017) (link to slip op.), is notable for a number of reasons. The case involves a claim of ineffectiveness of counsel based on the defense counsel foregoing any peremptory challenge in pursuit of a certain number of members (a strategy known as the numbers game), the members repeatedly asked questions about uncharged adultery after the military judge instructed them to disregard it, and a split en banc court concludes that it has no authority to set aside a mandatory minimum dismissal or dishonorable discharge for a sexual offense required by Article 56.
But the CCA also finds that the failure of defense counsel to object to improper prosecution closing argument waived – rather than forfeited – any error.
Kelly is one of a number of recent cases in which the Army CCA reaches the same remarkable conclusion. See United States v. Burris, No. 20150047 (A. Ct. Crim. App. Jul. 28, 2017) (link to slip op.); United States v. Sanchez, No. 20140735 (A. Ct. Crim. App. Jul. 17, 2017) (link to slip op.); United States v. Marcum, No. 20150500 (A. Ct. Crim. App. May 5, 2017) (link to slip op.). The CCA also reached the same conclusion for improper sentencing argument in United States v. Hoffman, 76 M.J. 758, No. 20140172 (A. Ct. Crim. App. Jun. 27, 2017) (link to slip op.).
Errors are preserved by timely objections, and an appellant is entitled to relief from a preserved error (unless it is harmless). Waiver of an error means that there is no error to correct on appeal and an appellant is not entitled to any relief (though a CCA may, nevertheless, grant relief). But waiver is the intentional relinquishment or abandonment of a known right. The mere failure to make a timely objection, however, usually forfeits any error, and an appellant is entitled to relief from a forfeited error upon showing that the error was plain, obvious, and prejudicial (the plain error test).
The Army CCA’s conclusion in Kelly that failure to object to improper closing argument waives – rather than merely forfeits – the error is remarkable because CAAF’s precedent (and the CCA’s own practice) clearly state the opposite. Writing for the en banc CCA, Judge Wolfe finds that:
R.C.M. 919(c) governs argument on findings. The rule states: “[f]ailure to object to improper argument before the military judge begins to instruct the members on findings shall constitute waiver of the objection.” R.C.M. 919(c). The rule has no “plain error” condition.
Kelly, __ M.J. at __, slip op. at 6. CAAF, however, has long held that:
Despite the language of “waiver” in RCM 919(c), Manual for Courts-Martial, United States (1995 ed.), we have repeatedly held that where there is no defense objection to the prosecution’s argument, we review for plain error. See United States v. Carpenter, 51 MJ 393, 396 (1999); United States v. Sweeney, 48 MJ 117, 121 (1998); cf. United States v. Causey, 37 MJ 308, 312 (CMA 1993) (Sullivan, J., concurring).
United States v. Diffoot, 54 M.J. 149, 151 n.1 (C.A.A.F. 2000). Judge Wolfe’s opinion in Kelly does not acknowledge (or even cite) CAAF’s decision in Diffoot.
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