Back in November, I speculated that United States v. Clifton, No. 12-0486/AR, which CAAF reviewed to determine “whether the Army Court of Criminal Appeals erred when it determined the military judge committed error by denying a panel member’s request to call two additional witnesses for questioning, but found this error to be harmless,” was really about the court’s slow-but-steady move to the full, four-prong test for plain error. I was at least half wrong; Clifton might actually be a move in the other direction.

Chief Judge Baker affirms the Army CCA, after first assuming forfeiture and not waiver, and conducting a three-prong plain-error analysis. His opinion is joined by Judge Ryan and Senior Judge Efforon, with separate concurring opinions from Judge Erdmann (who gives us a lesson in CAAF’s procedural rules) and from Judge Stucky (who finds that the Appellant waived the issue by failing to object).

The trial-stage decision at issue is that after closing arguments, one of the members asked to recall two witnesses: a medical provider and the Appellant’s wife. The request to recall a medical provider was disapproved because the military judge found that all of the testifying medical providers had “been permanently excused,” and the request to call the Appellant’s wife was disapproved because the judge found that “we have closed all of the evidence.” Trial and Defense Counsel were asked if they had any objections to these denials, and both stated that they had none. The Army CCA considered an assignment of error relating to the denial of the member’s request, and found that the military judge abused his discretion in denying member’s request based on a lack of evidence in the record that the judge considered the four factors required by United States v. Lampani, 14 M.J. 22, 26 (C.M.A. 1982) (difficulty and delay; materiality; possibility of a claim of privilege; and objections of the parties). The CCA also considered whether the lack of a defense objection waived the issue, but decided that it did not.

Chief Judge Baker begins his opinion with a discussion of the standard of review: “Ordinarily, where defense counsel affirmatively responds ‘no objection’ to a military judge’s denial of a panel member’s request to call additional witnesses for questioning, we would consider whether an appellant waived the issue. In this case, we need not reach the issue of waiver because, even assuming that Appellant merely forfeited the issue, we conclude that he failed to carry his burden to show prejudice under a plain error analysis.” Slip op. at 5-6. But then things get a little vague:

Under a plain error analysis, this Court will grant relief in a case of nonconstitutional error only if an appellant can demonstrate that (1) there was error; (2) the error was plain and obvious; and (3) the error materially prejudiced a substantial right of the accused. United States v. Powell, 49 M.J. 460, 464-65 (C.A.A.F. 1998).

Slip op. at 6 (emphasis added). By highlighting the error in this case as “nonconstitutional,” the Chief Judge indicates that the burden-shift for forfeited errors of constitutional dimension – that the Government must demonstrate that the error was harmless beyond a reasonable doubt – still exists in military law. But, as I discussed in The Hazard of Humphries:

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).

The problems with the Powell burden shift are both real and familiar:

Under a plain–error analysis, appellant has the initial burden of persuasion. He must show that there was an error, that it was plain or obvious, and that it materially prejudiced a substantial right. Only if appellant meets that burden of persuasion does the burden shift to the Government to show that the error was not prejudicial. If the plain error is constitutional error, the Government must convince us beyond a reasonable doubt that the error was not prejudicial.

United States v. Carpenter, 51 M.J. 393, 393 (C.A.A.F.  1999) (citing United States v. Powell, 49 MJ 460, 464–65 (C.A.A.F. 1998)). First the appellant proves material prejudice, then the Government disproves it beyond a reasonable doubt; it’s the legal impossibility we’ve been missing.

The point being that even errors of constitutional dimension may be forfeited by failure to object at trial, there is only one test for plain error, and it is the Appellant’s burden to show prejudice. See, for example, United States v. Marcus, 130 S.Ct. 2159 (2010) (finding the Second Circuit’s plain-error analysis of prejudice inconsistent with the Court’s jurisprudence in a case involving a conduct that occured before the effective date of the criminalizing statute). See also Nguyen v. United States, 539 U.S. 69, 89 (2003) (Rehnquist, C.J. dissenting) (“Petitioners’ second constitutional claim, like their statutory one, is subject to plain-error review.”). While Chief Judge Baker returns to this topic only once in this opinion (“Keeping in mind that Appellant bore the burden to show prejudice in the absence of an objection at trial and in the context of a nonconstitutional error…” Slip op. at 9), it’s hard to imagine that the Chief Judge uses the word “nonconstitutional” superfluously. So, where I previously saw a possibility that CAAF would embrace a stricter form of plain-error analysis, I now see the makings of an unexplained drift back to a more permissive review.

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In addition to Halpin, CAAF has also released two other opinions.

In Clifton, BAKER, C.J., delivered the opinion of the Court, in which RYAN, J., and EFFRON, S.J., joined. ERDMANN, J., filed a separate opinion concurring in part and in the result. STUCKY, J., filed a separate opinion concurring in the result.

On Appellant’s petition, we granted review of the following issue:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED WHEN IT DETERMINED THE MILITARY JUDGE COMMITTED ERROR BY DENYING A PANEL MEMBER’S REQUEST TO CALL ADDITIONAL WITNESSES FOR QUESTIONING, BUT FOUND THE ERROR TO BE HARMLESS.For the reasons set forth below, and assuming forfeiture rather than waiver, we conclude that the military judge erred, but that the error was not prejudicial.

In Capel, BAKER, C.J., delivered the opinion of the Court, in which ERDMANN and RYAN, JJ., and COX, S.J., joined. STUCKY, J., filed a separate opinion concurring in part and dissenting in part.  This audio is here.  Read this case in conjunction with United States v. Spicer.

We also specified the following issue:

II. WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUSTAIN APPELLANT’S CONVICTION FOR MAKING A FALSE OFFICIAL STATEMENT, ARTICLE 107, UCMJ, UNDER THIS COURT’S DECISION IN UNITED STATES v. TEFFEAU, 58 M.J. 62 (C.A.A.F. 2002), AND UNITED STATES v. DAY, 66 M.J. 172 (C.A.A.F. 2008).

Our discussion of this case focuses on the specified issue. We conclude that the statements at issue here are not official for the purposes of Article 107, UCMJ.

The audio for the last three oral arguments of the calendar year is posted on CAAF’s website at the following links:

United States v. Bowersox, No. 12-0398/AR

United States v. Clifton, No. 12-0486/AR

United States v. Tunstall, No. 12-0516/AF

In The Hazard of Humphries, I wrote extensively about CAAF’s decade-and-a-half-long struggle to adopt the Supreme Court’s test for plain error, which is error that may be remedied on appeal despite being forfeited by the failure to make a timely objection at trial (as opposed to an error that is preserved by a timely objection, or error that is waived by an intentional relinquishment at trial).

On Monday, December 3, 2012, after CAAF hears oral argument in United States v. Bowersox, No. 12-0398/AR, the court will hear oral argument in United States v. Clifton, No. 12-0486/AR. At first glance, Clifton looks like a case about when it is error for a military judge to deny a court-martial member’s request to call additional witnesses. However, I believe that this case is really about CAAF’s slow-but-steady move to the full, four-prong test for plain error:

First, there must be an error or defect – some sort of deviation from a legal rule – that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the district court proceedings. Fourth and finally, if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error – discretion which ought to be exercised only if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings. Meeting all four prongs is difficult, as it should be.

Puckett v. United States, 556 U.S. 129, 135, (2009) (marks and citations omitted). See also United States v. Humphries, 71 M.J. 219, 220 (C.A.A.F. 2012) (Stucky, J. dissenting) (“There are four elements to the Supreme Court’s plain error doctrine.”).

In 2009, Specialist Clifton was convicted by a general court-martial composed of members with enlisted representation, contrary to his pleas, of making a false official statement and aggravated assault, in violation of Articles 107 and 128, UCMJ. He was sentenced to confinement for six months and a bad-conduct discharge. His convictions were for actions leading to injuries sustained by his infant daughter, and at trial his defense was that the injuries were really caused by his wife.

After closing arguments, one of the enlisted members asked to recall two witnesses: a medical provider and the Appellant’s wife. The request to recall a medical provider was disapproved because the military judge found that all of the testifying medical providers had “been permanently excused,” and the request to call the Appellant’s wife was disapproved because the judge found that “we have closed all of the evidence.” Trial and Defense Counsel were asked if they had any objections to these denials, and both stated that they had none.

The Army CCA reviewed the court-martial, and considered an assignment of error relating to the military judge’s denial of the member’s request. The CCA found that “the absence of a defense objection to the military judge’s actions does not equate to waiver.” Slip op. at 3. The court then considered the error, and found that the military judge abused his discretion in denying the member’s request based on a lack of evidence in the record that the judge considered the four factors required by United States v. Lampani, 14 M.J. 22, 26 (C.M.A. 1982) (difficulty and delay; materiality; possibility of a claim of privilege; and, objections of the parties).

However, the court found that the error did not prejudice the Appellant (and likely benefited him, considering the strength of the Government’s case), noting:

Under Article 59(a), UCMJ, in order to grant relief, the military judge’s error must have materially prejudiced appellant’s substantial rights. Because the error is a nonconstitutional one, the government must demonstrate “the error did not have a substantial influence on the findings.” Rios, 64 M.J. at 569 (quoting United States v. Berry, 61 M.J. 91, 97 (C.A.A.F. 2005) (additional citations omitted)).

Slip op. at 3 (emphasis added). But Berry was a case with preserved error (i.e., the defense objected to the testimony of a Government witness), and Rios was a case, like Clifton, with either a forfeited or waived error, because the defense did not object to the military judge’s denial of a member’s request. In other words, the ACCA has the plain-error test wrong, and had it wrong in Rios too.

I see this as the real question in this case: Was the military judge’s error (assuming it was error) in denying the member’s request: preserved (no), forfeited (maybe), or waived (I think so), when the trial defense counsel said he had no objection to the military judge’s action? And, if it was forfeited, should an appellate court grant relief?

CAAF then granted review of the following issue:

Whether the Army Court of Criminal Appeals erred when it determined the military judge committed error by denying a panel member’s request to call two additional witnesses for questioning, but found this error to be harmless.

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CAAF today granted review of this issue:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED WHEN IT DETERMINED THE MILITARY JUDGE COMMITTED ERROR BY DENYING A PANEL MEMBER’S REQUEST TO CALL TWO ADDITIONAL WITNESSES FOR QUESTIONING, BUT FOUND THIS ERROR TO BE HARMLESS.

 United States v. Clifton, __ M.J. __, No. 12-0486/AR (C.A.A.F. Aug. 6, 2012).  ACCA’s unpublished decision in the case is available here.