CAAF decided the Navy case of United States v. Andrews, 77 M.J. 393, No.17-0480/NA (CAAFlog case page) (link to slip op.), on Tuesday, May 22, 2018. Rejecting the Navy-Marine Corps Appellate Government Division’s argument that the failure to object to improper argument at trial waives any error on appeal, CAAF concludes that any improper argument by the prosecution in this particular case was harmless and affirms the decision of the Navy-Marine Corps CCA.

Judge Sparks writes for a unanimous court.

Quartermaster Seaman Apprentice (E-2) Andrews pleaded guilty to fleeing apprehension, making a false official statement, wrongful use of marijuana, and larceny. But he pleaded not guilty to three sexual offenses. After a contested trial before members, Andrews was convicted of one of those three offenses: sexual assault of a person who was incapable of consenting due to impairment by alcohol.

The prosecution’s closing argument, however, crossed the line, and the Navy-Marine Corps CCA found that the trial counsel committed severe prosecutorial misconduct during that argument. Nevertheless, the CCA concluded that the misconduct did not prejudice Andrews. CAAF then granted review of a single issue questioning that no-prejudice conclusion:

The lower court found severe prosecutorial misconduct. Then it affirmed the findings and sentence, giving its imprimatur to the prosecutorial misconduct in Appellant’s case. Did the lower court err?

Judge Sparks’ opinion for the unanimous CAAF affirms the CCA’s action, but only after a lengthy and unexpected analysis of why the issue was not waived by the failure of Andrews’ defense counsel to object to some of the improper arguments at trial. That analysis is unexpected because the question of whether the failure to object to improper argument waives, rather than merely forfeits, any error was not clearly raised by the granted issue in this case, but rather is clearly raised in a different case still pending before CAAF: United States v. Burris, No.17-0605/AR (CAAFlog case page) (argued – by me for Major Burris – on Thursday, March 22, 2018).

Nevertheless, the Navy-Marine Corps Appellate Government Division asserted waiver in its brief to CAAF and during oral argument (previewed here) (audio here), and CAAF rejects it.

Judge Sparks begins:

I. Prosecutorial Misconduct
A. The Proper Standard of Review

The following is well established in our case law. We review prosecutorial misconduct and improper argument de novo. United States v. Sewell, 76 M.J. 14, 18 (C.A.A.F. 2017). If proper objection is made, we review for prejudicial error. United States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005) (citing Article 59, UCMJ, 10 U.S.C. § 859 (2000)). If no objection is made, we hold the appellant has forfeited his right to appeal and review for plain error. Id.; Sewell, 76 M.J. at 18. The burden of proof under plain error review is on the appellant. Sewell, 76 M.J. at 18.

The Government relies on United States v. Ahern, 76 M.J. 194 (C.A.A.F. 2017), to argue we should depart from precedent and interpret R.C.M. 919(c) to say a defense counsel’s mere failure to timely object to improper argument constitutes waiver. The Government’s position is consistent with a series of Army Court of Criminal Appeals’ decisions holding that R.C.M. 919(c) is a waiver provision. See, e.g., United States v. Kelly, 76 M.J. 793 (A. Ct. Crim. App. 2017); United States v. Sanchez, No. ARMY 20140735, 2017 CCA LEXIS 470, 2017 WL 3037442 (A. Ct. Crim. App. July 17, 2017); United States v. Burris, No. ARMY 20150047, 2017 CCA LEXIS 315, 2017 WL 1946326 (A. Ct. Crim. App. May 8, 2017); United States v. Marcum, No. ARMY 20150500, 2017 CCA LEXIS 312, 2017 WL 1857232 (A. Ct. Crim. App. May 5, 2017).

“Deviation from a legal rule is ‘error’ unless the rule has been waived.” United States v. Girouard, 70 M.J. 5, 10 (C.A.A.F. 2011) (internal quotation marks omitted) (citation omitted). “While this Court reviews forfeited issues for plain error, we do not review waived issues because a valid waiver leaves no error to correct on appeal.” Ahern, 76 M.J. at 197 (citations omitted).

Affirming the lower court’s application of waiver would require us to overturn Fletcher and its progeny. Under the doctrine of stare decisis, we decline to do so.

Slip op. at 5-6. An important analytical point is that the reference to “the lower court’s application of waiver” is a reference to the Army court’s waiver holdings, not to the Navy-Marine Corps court which rejected waiver in this case and also specifically rejected the Army court’s waiver reasoning in a different case that Judge Sparks addresses in a footnote:

In United States v. Motsenbocker, the United States Navy-Marine Corps Court of Criminal Appeals abided by our precedent and applied forfeiture to un-objected to prosecutorial misconduct. No. NMCCA 201600285, 2017 CCA LEXIS 539, 2017 WL 4640030 (N-M. Ct. Crim. App. Oct. 17, 2017). The Motsenbocker court followed the correct approach. See United States v. Davis, 76 M.J. 224, 228 n.2 (C.A.A.F. 2017) (explaining “the services courts of criminal appeals must adhere to this Court’s precedent even when they believe that subsequent decisions call earlier decisions into question” (citation omitted)).

Slip op. at 5-6 n.7.

Judge Sparks then explains that  4+1 factors are used to apply stare decisis:

“We consider the following factors in evaluating the application of stare decisis: [1] whether the prior decision is unworkable or poorly reasoned; [2] any intervening events; [3] the reasonable expectations of servicemembers; and [4] the risk of undermining public confidence in the law.” Blanks, 77 M.J. at 242 (internal quotation marks omitted) (citation omitted). Even if these factors weigh in favor of overturning longsettled precedent, [+1] “we [still] require ‘special justification,’ not just an argument that the precedent was wrongly decided.” Halliburton Co. v. Erica P. John Fund, Inc., 134 S. Ct. 2398, 2407 (2014); see also Dickerson v. United States, 530 U.S. 428, 443 (2000); Blanks, 77 M.J. at 242 (citations omitted); Kurt T. Lash, The Cost of Judicial Error: Stare Decisis and the Role of Normative Theory, 89 Notre Dame L. Rev. 2189, 2189 (2014) (“The prudential doctrine of stare decisis is meant to ameliorate these costs by counseling judicial adherence to precedent even in those cases  where a judge believes the prior decision was wrong.” (emphasis added) (citation omitted)).

Slip op. at 7.

For the first factor, Judge Sparks explains:

The Government has only argued Fletcher ignored R.C.M. 919(c)’s plain language and has neither established that Fletcher is now unworkable nor has it advanced any argument to that effect.

Slip op. at 9.

For the second factor,

[T]there have been no changes in regulation, rule, or military structure necessitating the application of waiver in this case.

Slip op. at 10. A footnote explains that the change is actually in the opposite direction:

There has, however, been a change to the military justice system weighing in favor of upholding Fletcher. Effective January 1, 2019, R.C.M. 919(c) will read “Failure to object to improper argument before the military judge begins to instruct the members on findings shall constitute forfeiture of the objection.” Exec. Order No. 13,825, 83 Fed. Reg. 9889 (Mar. 8, 2018) (emphasis added). While this modification has no direct impact on this case, it would be frivolous to overturn fifteen years of precedent for an eight-month period.

Slip op. at 10 n.10.

For the third factor:

We concede servicemembers have not relied on Fletcher in any way that would compel us to continue to interpret R.C.M. 919(c) as a forfeiture provision.

Slip op. at 10.

The fourth factor has special significance:

Just as overturning precedent can undermine confidence in the military justice system, upholding precedent tends to bolster servicemembers’ confidence in the law. This is especially true where, as here, the precedent involves appellate review of prosecutorial misconduct—an issue that may, on its own, undermine confidence in the military justice system.

Slip op. at 10 (citations omitted).

Finally, Judge Sparks explains that there is no special justification for reversing decades of precedent on this issue:

Finally, the Government advances no “special justification” requiring us to depart from precedent, nor can we conceive of one. Overturning Fletcher to hold un-objected to improper argument must be waived absent a special justification would allow this form of prosecutorial misconduct to persist, largely unchecked, and would thus risk egregious harm to our justice system.

Slip op. at 11 (citation omitted).

And that – from the unanimous CAAF – would be that.

There is, however, still the granted issue in this case: whether the NMCCA erred when it “found severe prosecutorial misconduct,” but then “affirmed the findings and sentence, giving its imprimatur to the prosecutorial misconduct.” Prosecutorial misconduct is “behavior by the prosecuting attorney that ‘oversteps the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense.” Slip op. at 12 (marks and citations omitted). But the mere occurrence of such misconduct is not enough to warrant reversal. Rather, “relief will be granted [only] if the trial counsel’s misconduct ‘actually impacted on a substantial right of an accused (i.e., resulted in prejudice).'” Slip op. at 12 (quoting Fletcher, 62 M.J. at 178 (quoting Meek, 44 M.J. at 5)). The existence of prejudice depends on three factors:

(1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction.

Slip op. at 13 (quoting Fletcher, 62 M.J. at 184). But “the third factor alone may so clearly favor the government that the appellant cannot demonstrate prejudice.” Slip op. at 13 (quoting Sewell, 76 M.J. at 18) (marks omitted). And here the third factor is dispositive. After some discussion of the facts, Judge Sparks explains:

we conclude the evidence against Appellant was so strong we are “confident that the members convicted the appellant on the basis of the evidence alone.” Fletcher, 62 M.J. at 184. There was, therefore, no prejudice to Appellant’s substantial rights.

Slip op. at 15.

That’s it for Andrews (except for a small correction involving the approved sentence of forfeiture of pay).

But Judge Sparks’ opinion continues, with a broad warning:

Despite our finding of no prejudice, the prosecutorial conduct in this case raises concerns we feel compelled to address. We remind all military judges of their “sua sponte duty to insure [sic] that an accused receives a fair trial.” United States v. Watt, 50 M.J. 102, 105 (C.A.A.F. 1999) (internal quotation marks omitted) (citation omitted); see also United States v. Knickerbocker, 2 M.J. 128, 129 (C.M.A. 1977) (“At the very least, the judge should have interrupted the trial counsel before he ran the full course of his impermissible argument.”). Military judges are neither “mere figurehead[s]” nor are they “umpire[s] in a contest between the Government and accused.” Watt, 50 M.J. at 105 (internal quotation marks omitted) (quoting United States v. Kimble, 23 C.M.A. 251, 253, 49 C.M.R. 384, 386 (1974)). Nor can a defense counsel sit like a bump on a log—he or she owes a duty to the client to object to improper arguments early and often. See DeFreitas v. State, 701 So.2d 593, 602 (Fla. Dist. Ct. App. 1997) (explaining the court is unlikely to “excuse counsel for his failure” to object because a defense counsel “has the duty to remain alert to such things in fulfilling his responsibility to see that his client receives a fair trial”). Failure to do so may give rise to meritorious ineffective assistance of counsel claims. See F. Emmit Fitzpatrick & NiaLena Caravasos, Ineffective Assistance of Counsel, 4 Rich. J.L. & Pub. Int., 67, 81 (2000) (listing federal cases in which the circuit courts found ineffective assistance of counsel for failure to object (citing Williams v. Washington, 59 F.3d 673, 684 (7th Cir. 1995); Henry v. Scully, 78 F.3d 51, 52–53 (2d Cir. 1996); Bolander v. Iowa, 978 F.2d 1079, 1083–84 (8th Cir. 1992); Crotts v. Smith, 73 F.3d 861, 867 (9th Cir. 1996); Atkins v. Attorney General of Alabama, 932 F.2d 1430, 1432 (11th Cir. 1991); and Mason v. Scully, 16 F.3d 38, 45 (2d Cir. 1994))). Finally, we remind trial counsel they are:

representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, [they are] in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer…. It is as much [their] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Berger, 295 U.S. at 88. Every attorney in a court-martial has a duty to uphold the integrity of the military justice system.

Slip op. at 15-16 (marks in original) (emphases added).

Case Links:
• NMCCA decision
• Appellant’s brief
• Appellee’s (N.M. App. Gov’t Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio
CAAF opinion
Blog post: Opinion analysis

11 Responses to “Opinion Analysis: The Navy-Marine Corps Appellate Government Division wins a battle but loses the waiver war in United States v. Andrews”

  1. A Random JAG says:

    As long as CAAF only continues to finger-wag at improper trial counsel arguments, trial counsel will continue to make improper arguments.
    I get that it’s hard to overcome harmless error in a strong government case, but opinions like this really do embolden prosecutors to go as close to the line as they can on any given case.  It’s depressing.

  2. Sir Visdis Crediting says:

    Having not looked up the results of that string citation, I assume that a “meritorious” IAC claim is one where the appellant gets relief. Could there be a situation where the prosecutor’s severe misconduct was harmless while also the failure to object to the prosecutor’s severe misconduct prejudiced the appellant?

  3. Isaac Kennen says:

    This court has several times used vigorous language in denouncing government counsel for such conduct as that of the [prosecutor] here.  But, each time, it has said that, nevertheless, it would not reverse. Such an attitude of helpless piety is, I think, undesirable.  It means actual condonation of counsel’s alleged offense, coupled with verbal disapprobation.  If we continue to do nothing practical to prevent such conduct, we should cease to disapprove it.  For otherwise it will be as if we declared in effect, “Government attorneys, without fear of reversal, may say just about what they please in addressing juries, for our rules on the subject are pretend-rules.  If prosecutors win verdicts as a result of ‘disapproved’ remarks, we will not deprive them of their victories; we will merely go through the form of expressing displeasure.  The deprecatory words we use in our opinions on such occasions are purely ceremonial.” Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking.  The practice of this court — recalling the bitter tear shed by the Walrus as he ate the oysters — breeds a deplorably cynical attitude towards the judiciary. 

    Darden v. Wainwright, 477 U.S. 168, 205-206 (U.S. 1986) (Justice Blackmun, Justice Brennan, Justice Marshall, and Justice Stevens, dissenting). 

  4. westpointquaker says:

    Didn’t Judge Sparks write this opinion and not Judge Ohlson?  Just saying…

  5. Zachary D Spilman says:

    Yes indeed. I’m not sure why I read the heading to say Judge Ohlson when it clearly says Judge Sparks. I have corrected the post.

    Thank you for pointing out my error, westpointquaker, and my apologies to Judge Sparks.

  6. Philip D. Cave says:

    These types of cases are common.  Despite some reversals on appeal (Fletcher, Garcia, a few others), the prosecution continues to create error–why?  Perhaps we must consider that this is a sexual assault case and any actions designed to get a conviction are condoned if not encouraged by supervisors, leaders, and trainers?  Is this a reasonable assumption in light of senior leader activity, e.g., Vargas, Riesbeck, Barry?
    To paraphrase a paraphrase of a statement attributed to an older naval officer, “Damn the law, full speed ahead.”    [] and don’t expect change.

  7. k fischer says:

    “We remind all military judges of their “sua sponte duty to insure [sic] that an accused receives a fair trial.”

    Back when I was an Army JAG (prior to 2007), I felt that MJ’s were more likely to uphold this premise.  But, since Congress started giving presumptive victim’s rights, it seems to me like MJ’s have become noticeably concerned with ensuring that the presumptive victim receive a “fair trial” as well.  How many times has an SJA advised a GCMCA to refer a case recommended for dismissal, so the presumptive victim can “have her day in court?”

  8. DCGoneGalt says:

    Doesn’t the RCM say “Unless there’s a smoking gun the victim gets her trial.”?  
    Former AF TJAG Gen Richard Harding said it best while trying to strong arm a GCMCA SJA in the US v Wright case.

  9. k fischer says:

    Yes, DCCG.  Furthermore, I believe the appendix of the MCM discussing that section says that any action that hinders the victim from getting her trial will paint a target on the CA’s back and provide Senator Gillibrand the ammunition to amend the UCMJ to prevent Commanders from exercising any control over the UCMJ.

  10. k fischer says:

    And, to be fair, the quote was: “the failure to refer the case to trial would place the Air Force in a difficult position with Congress; absent a ‘smoking gun,’ victims are to be believed and their cases referred to trial;”  Quoting him saying that “the victim gets her trial” sounds like he believes that all victims are women. 
    But, what I did find interesting was this link, which highlighted what Harding is currently doing:

    In addition to his work with The Professional Education Group, General Harding now assists universities and interest groups in eradicating campus sexual assaults with successful lessons learned from combating military sexual assaults.

    Well, at least male college students are not barred by the Feres Doctrine when they sue for discrimination and due process violations under Title IX.  Wouldn’t it be ironic if Brandon Wright got out of the Air Force and was again a victim of Harding’s eradication methods if he was going to college on the GI Bill?

  11. DCGoneGalt says:

    Well, bless his heart.  He found a great place to continue his work.
    Thanks for pointing that out.  It made me throw up in my mouth.