In United States v. Fosler, 70 M.J. 225, 227 (C.A.A.F. 2011), CAAF reversed nearly 60 years of military jurisprudence and decided that a specification under Article 134 fails to state an offense if it does not allege a “terminal element.” In United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012), the court limited the application of Fosler by finding that in the context of a guilty plea, such a specification is still defective, but that the protections provided by a military plea inquiry are adequate to avoid material prejudice to a substantial right. But in United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012), the court expanded Fosler (where the appellant objected at trial) to include situations where no objection is raised at trial, ruling that if the government does not cure the lack of notice caused by the defective specification during the trial, despite the lack of objection, the error materially prejudices the accused’s right to notice and the conviction must be set-aside.

The court’s decision in Humphries was a vindication for those (like our Colonel Sullivan) who wondered how the court could deny relief in Ballan when Rule for Courts-Martial 907 states that failure to state an offense is a nonwaivable ground for dismissal, and that “a charge or specification shall be dismissed at any stage of the proceedings if . . . . the specification fails to state an offense.” While CAAF rejected the edict of this provision in Humphries – eschewing automatic reversal and instead conducting a plain-error analysis – the court embraced the practical consequence of the RCM in its decision dismissing the charge.

But there is a hazard in Humphries.

American jurisprudence penalizes the failure to object at trial. In 2009, writing for a seven justice majority of the Supreme Court, Justice Scalia explained:

If a litigant believes that an error has occurred (to his detriment) during a federal judicial proceeding, he must object in order to preserve the issue. …

If an error is not properly preserved, appellate-court authority to remedy the error (by reversing the judgment, for example, or ordering a new trial) is strictly circumscribed. There is good reason for this; anyone familiar with the work of courts understands that errors are a constant in the trial process, that most do not much matter, and that a reflexive inclination by appellate courts to reverse because of unpreserved error would be fatal.

This limitation on appellate-court authority serves to induce the timely raising of claims and objections, which gives the district court the opportunity to consider and resolve them. … And of course the 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.

Puckett v. United States, 556 U.S. 129, 134-135 (2009) (internal citations and quotation marks omitted). This contemporaneous objection rule is well-recognized in military jurisprudence, and is embodied in Military Rule of Evidence 103. Failure to object at trial either waives the error (prohibiting later relief) or forfeits the error (permitting relief only after increased scrutiny). See United States v. Olano, 507 U.S. 725 (1993); United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008). In the federal system, that increased scrutiny turns on the question of prejudice, specifically whether the error “affected the appellant’s substantial rights.” Puckett, 556 U.S. at 129. In courts-martial, the question is muddied by the fact that Article 59(a) requires a finding of “material prejudice to a substantial right of the accused,” but the underlying principles of forfeiture or waiver due to failure to object are the same.

However, the error is not the prejudice (unless the error is in the narrow class of  “structural errors”). See Puckett, 556 U.S. at 142. See also The right to get away with it. Judge Ryan’s majority opinion in Humphries clearly explains that in the case of a defective Article 134 specification, the error (omitting elements on the charge sheet thereby failing to state an offense) is distinct from the prejudice (lack of notice of the terminal element(s)). Humphries, slip op. at 20. Moreover, the court makes it clear that the appellant has the burden of demonstrating both the error and the prejudice. Humphries, slip op. at 12.

This burden – that the appellant must demonstrate the prejudice in cases involving plain error – is clearly established in Supreme Court precedent:

When the defendant has made a timely objection to an error and Rule 52(a) [preserved error] applies, a court of appeals normally engages in a specific analysis of the district court record-a so-called “harmless error” inquiry-to determine whether the error was prejudicial. Rule 52(b) [plain error] normally requires the same kind of inquiry, with one important difference: It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice. … This burden shifting is dictated by a subtle but important difference in language between the two parts of Rule 52: While Rule 52(a) precludes error correction only if the error “does not affect substantial rights” (emphasis added), Rule 52(b) authorizes no remedy unless the error does “affec[t] substantial rights.”

Olano, 507 U.S. at 734-735 (citations omitted) (emphasis added). But this rule has an uncertain pedigree in military jurisprudence. Last century, CAAF ruled that “if the errors were of a constitutional dimension, the test is whether the reviewing court is able to declare a belief that it was harmless beyond a reasonable doubt.” United States v. Adams, 44 M.J. 251, 252 (C.A.A.F. 1996) (internal quotation marks omitted). However, Adams was a case with preserved error (the appellant objected at trial). Nevertheless, two years later CAAF ruled that in a plain error analysis, where constitutional error is at stake, “the burden shift[s] to the Government to show that the error was not prejudicial.” United States v. Powell, 49 M.J. 460, 465 (C.A.A.F. 1998) (citing Adams, 44 M.J. at 252). Then, for more than a decade, CAAF repeatedly cited Powell for the principle that in a plain error analysis of a constitutional error, the burden shifts to the government to disprove prejudice beyond a reasonable doubt. See United States v. Carpenter, 51 M.J. 393 (C.A.A.F 1999); United States v. Avery, 52 M.J. 495, 498 (C.A.A.F. 2000); United States v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005); United States v. Brewer, 61 M.J. 425, 430 (C.A.A.F. 2005); United States v. Paige, 67 M.J. 442, 449 (C.A.A.F. 2009); United States v. Flores, 69 M.J. 366, 369 (C.A.A.F. 2011).

Finally, in 2011, this questionable burden shift was quietly abandoned, when CAAF ruled that the appellant does in fact bear the burden of showing prejudice in a plain error case involving constitutional rights. United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011) (constitutional rights to notice and to not be convicted of an uncharged offense). Humphries continues this tradition of quietly abandoning the burden shift announced in Powell, without expressly overruling it, by stating in a footnote:

To be clear, it is Appellee’s burden to prove material prejudice to a substantial right, see Girouard, 70 M.J. at 11…

Humphries, slip op. at 21, N.10 (emphasis added). But while CAAF cited Girouard for the test for prejudice in Humphries, the court retreated from the application of this test employed in Girouard, and its nearly-companion case McMurrin, by not requiring a demonstration that but for the error, the outcome would have been different. Girouard, 70 M.J. at 11 (“But for the error Appellant would not have been convicted of negligent homicide.”); United States v. McMurrin, 70 M.J. 15, 20 (C.A.A.F. 2011) (“But for the error Appellant [sic] would not have been convicted of negligent homicide.”). This too is done quietly, and in a footnote:

We disagree that [United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004)] which held that the prejudice burden in the federal system requires the showing of a reasonable probability that, but for the error claimed, the result of the proceeding would have been different, controls this case…

Humphries, slip op. at 16, N.7 (marks and internal citation omitted). And so in Humphries, the burden is on the appellant to demonstrate prejudice, but he is not held to the full measure of that burden as recognized by both the Supreme Court and CAAF.

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United States v. Humphries, No. 10-5004/AF, has a complicated case history. I discussed it in my recap of the oral argument, but the short version is that Senior Airman Humphries was convicted, contrary to his pleas, of consensual sodomy and adultery, and sentenced to reduction to E-1 and a bad-conduct discharge, but the Air Force CCA remanded the case to the convening authority with instructions that the sentence be no greater than reduction to E-1 and a suspended bad-conduct discharge. The JAG then certified the following issue to CAAF:

Whether the Air Force Court of Criminal Appeals erred in finding appellee’s sentence inappropriately severe under the unique circumstances of this case and erred in an attempt at exercising appellate clemency by remanding the case to the convening authority with instructions that the convening authority may approve an adjudged sentence no greater than a suspended bad conduct discharge and a reduction to the grade of E-1.

After a petition for cross-appeal by Humphries, CAAF granted the following additional issue:

Whether a contested adultery specification that fails to expressly allege an Article 134 terminal element but that was not challenged at trial states an offense.

Surprisingly, the court grants relief on the second issue, and sets-aside the finding of guilty to the adultery charge. The court then remands the case for reassessment of sentence without reaching the certified issue.

But the opinion, authored by Judge Ryan and drawing separate dissents from both Chief Judge Baker and Judge Stucky, does more than just grant relief to an appellant who didn’t object to a defective Article 134 specification during a contested trial. It also clarifies any lingering questions about the retroactivity of Fosler, addresses the controversy surrounding RCM 907(b)(1)(B), and it somewhat contradicts emerging caselaw from a CCA (published and unpublished).

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CAAF heard oral argument in United States v. Humphries, No. 10-5004/AF, on February 13, 2012. Humphries is a unique case with some history. Senior Airman (E-4) Humphries was convicted in 2009 by a panel with enlisted members of sodomy and adultery in violation of Articles 125 and 134. He was sentenced to reduction to the lowest enlisted grade and a bad-conduct discharge. The convening authority approved the sentence, but in 2010 the AFCAA, after finding no prejudicial error,  determined that Humphries “deserves punishment but given the consensual nature of his crimes, an unsuspended punitive discharge is inappropriately severe.” The AFCCA then set-aside the convening authority’s action and returned the case for reconsideration by the CA with instructions that he approve a sentence no greater than a suspended bad-conduct discharge and a reduction to E-1. Additionally, in its action, the CCA (despite determining that the findings are correct in law and fact) expressly declined to affirm the findings.

The government, unsurprisingly, requested en banc reconsideration, which the CCA denied. The government then sought and obtained certification to CAAF on the following question:

Whether the Air Force Court of Criminal Appeals erred in finding appellee’s sentence inappropriately severe under the unique circumstances of this case and erred in an attempt at exercising appellate clemency by remanding the case to the convening authority with instructions that the convening authority may approve an adjudged sentence no greater than a suspended bad conduct discharge and a reduction to the grade of E-1.

CAAF heard oral argument in January 2011, but in February 2011 it returned the case to the AFCCA because the lower court “acted on the sentence without acting on the findings. This has resulted in having a case before us for review that does not have a complete decision on all findings and the sentence by the Court of Criminal Appeals as required by Article 67(c).”

In August 2011 the AFCCA doubled-down, issuing a decision affirming the findings as correct in law and fact and again setting-aside the CA’s action with the same appropriateness-based limit on the sentence on remand. The Judge Advocate General of the Air Force then re-certified the above-specified issue.

Perhaps not believing this case to be complicated enough at this point, the defense (led by our own Colonel Sullivan) petitioned for a cross-appeal, and CAAF granted review and ordered briefs on a second issue:

Whether a contested adultery specification that fails to expressly allege an Article 134 terminal element but that was not challenged at trial states an offense.

This grant came in mid-December, at about the same time as CAAF granted the second round of Fosler-trailers (for which a witty characterization is still pending).

So, going into the oral argument last week, the government was the appellant on the certified issue, and was the cross-appellee on the granted issue. To keep things simpler, the government will be the “government,” and Humphries the “appellee” from here on.

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Today, for the second day in a row, the Judge Advocate General of the Air Force has recertified a case to CAAF.  The recertified issue in United States v. Humphries, No. 10-5004/AF, is:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FINDING APPELLEE’S SENTENCE INAPPROPRIATELY SEVERE UNDER HTE UNIQUE CIRCUMSTANCES OF THIS CASE AND ERRED IN AN ATTEMPT AT EXERCISING APPELLATE CLEMENCY BY REMANDING THE CASE TO THE CONVENING AUTHORITY WITH INSTRUCTIONS THAT THE CONVENING AUTHORITY MAY APPRVE AN ADJUDGED SENTENCE NO GREATER THAN A SUSPENDED BAD CONDUCT DISCHARGE AND A REDUCTION TO THE GRADE OF E-1.

AFCCA’s latest opinion in the case is available here.

Also today, Code 46 filed notice with CAAF that the Judge Advocate General of the Navy chose not to certify the case of United States v. Lee to CAAF.  Code 46 had previously sought and received an extension of time for the Judge Advocate General to decide whether to certify the case.  NMCCA’s published decision in the case is available here.

On 11 January, CAAF heard oral argugment in United States v. Humphries, No. 10-5004/AF, a certified issue case in which the government challenged an exercise of AFCCA’s sentence appropriateness power as well as a CCA’s authority to remand a case to a convening authority with an indication that if he approves an unsuspended BCD, the CCA will disapprove it.  Today the Humphries case went away.  This CAAF order remanded the case back to AFCCA because AFCCA’s Humphries opinion expressly “decline[d] to affirm the findings” pending remand to the CA.  But CAAF’s jurisdiction-granting statute provides that it “may act only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the Court of Criminal Appeals.”  Beause there were no approved findings, CAAF had no authority to act.  (Of course, it’s also the case that under a plain reading of that same sentence in Article 67(c), CAAF has no authority to act on a portion of a sentence that a CCA set aside as inappropriately severe in the exercise of its unique Article 66(c) powers.  That statutory wording was quite deliberate.  The UCMJ’s legislative history states that the “only action which [the Court of Military Appeals] may take with respect to the sentence is to determine whether or not it is within legal limits.”  H.R. Rep. No. 81-491 at 32 (1949); S. Rep. No. 81-486 at 29 (1949).  Yet CAAF earlier denied a defense motion to summarily affirm on that basis.  United States v. Humphries, 69 M.J. 249 (C.A.A.F. 2010).)

Audio of today’s CAAF argument in United States v. Savala, No. 10-0317/NA, is available here.  Audio of today’s oral argument in United States v. Humphries, No. 10-5004/AF, is available here.

Here’s the second certified issue from the Judge Advocate General of the Air Force docketed at CAAF this week:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FINDING APPELLEE’S SENTENCE INAPPROPRIATELY SEVERE UNDER THE UNIQUE CIRCUMSTANCES OF THIS CASE AND ERRED IN AN ATTEMPT AT EXERCISING APPELLATE CLEMENCY BY REMANDING THE CASE TO THE CONVENING AUTHORITY WITH INSTRUCTIONS THAT THE CONVENING AUTHORITY MAY APPROVE AN ADJUDGED SENTENCE NO GREATER THAN A SUSPENDED BAD CONDUCT DISCHARGE AND A REDUCTION TO THE GRADE OF E-1.

United States v. Humphries, __ M.J. __, No. 10-____ (C.A.A.F. July 14, 2010).  AFCCA’s unpublished decision in the case is available here.  (On 25 June, AFCCA denied the government’s motion for reconsideration en banc.)