Unpacking the Harvey dissent's waiver argument

Harvey concerned an unlawful command influence (UCI) issue arising from the presence of the original convening authority (the squadron’s executive officer) in the courtroom during the findings arguments. The majority held that the defense had adequately raised the issue of UCI and that the military judge erred by failing to inquire further. In her dissent, Judge Crawford argued:

[T]he defense counsel did not raise the issue of the convening authority's involvement in his post-trial submission. This constitutes waiver of this issue or at least is a good indication of the trial defense counsel's opinion of the merit of the issue. United States v. Gudmundson, 57 M.J. 493, 495 (C.A.A.F. 2002) (holding that an accused waives the issue of a convening authority's
disqualification if he knows of the issue and fails to object (citing United States v. Fisher, 45 M.J. 159, 163 (C.A.A.F. 1996)); United States v. Jeter, 35 M.J. 442, 447 (C.M.A. 1992) (holding that if an accused is aware of the convening authority's "personal interest" in a case and fails to object, the accused waives the issue); see United States v. Weasler, 43 M.J. 15, 19 (C.A.A.F. 1995) (concluding that an accused can initiate an affirmative and knowing waiver of unlawful command influence to secure the benefits of a pretrial agreement).

I was alarmed by this suggestion. The trial defense counsel in Harvey had raised the issue and moved unsuccessfully for a mistrial. Judge Crawford’s dissent suggests that despite properly preserving the issue at trial, the defense counsel might have waived it by failing to raise the issue in an 1105 petition or response to the staff judge advocate’s recommendation. I had never heard of such a waiver rule. Does such a rule -- which I would consider enormously troubling -- actually exist?

Let’s analyze each of the cases Judge Crawford cites in support of this proposition. In Gudmundson, the convening authority testified as a government witness concerning the legality of a urinalysis he had ordered. 57 M.J. at 494. On appeal, the defense argued for the first time that the convening authority was disqualified from taking the post-trial action due to his testimony at trial. CAAF held that “the issue was waived in this case. Appellant was aware of the convening authority's involvement, but he chose to not raise the disqualification issue at trial or in his post-trial submission to the convening authority.” Id. at 495. Gudmundson is clearly distinguishable from this case. In Gudmundson, the defense had NEVER challenged the convening authority until the case was on appeal. It wasn’t a situation where an issue properly preserved at trial was waived by failure to reassert it to the CA post-trial. Gudmundson thus does not support the Harvey dissent’s approach.

Nor does Fisher. There, the defense raised a UCI issue on appeal that had never been raised before. (According to an affidavit by the trial defense counsel, “Captain Major, Commanding Officer of the NAS Alameda at the time and the convening authority in this case, told me that any lawyer that would try to get the results of the urinalysis suppressed was unethical.” This is why I love practicing criminal law -- the facts are so often fascinating.) CAAF observed, “Inexplicably, . . . defense counsel said nothing about this matter even prior to Captain Major taking his final action on the case as the convening authority. Instead, . . . it came to light for the first time in his affidavit submitted to the lower appellate court.” 45 M.J. at 160. The Fisher majority expressly declined to rule that the defense had waived the issue of the CA’s disqualification to act post-trial. The court explained, “[T]he Government has argued that appellant waived her right to pursue this complaint in the appellate courts by not asserting it before the post-trial action was taken. We already have expressed our puzzlement as to why trial defense counsel did not make Captain Major's statement a matter of record at trial or contest Captain Major's qualifications to take the action via an RCM 1106 submission to the convening authority. We note, however, no evidence or other indication that appellant, herself, was aware of Captain Major's statement and made a knowing and intelligent waiver of her right to contest his qualifications to take the action on her court-martial. Accordingly, we decline to invoke waiver under these circumstances, where that probably would serve only to raise a substantial question as to the effectiveness of counsel's representation at that stage.” 45 M.J. at 160. Fisher thus also provides no support for the notion that an issue properly preserved at trial may be waived by failure to press it before the CA during the post-trial phase.

Weasler is similarly unavailing. There, the defense raised an unlawful command influence motion at trial and then entered into a written agreement with the government formally waiving the motion in exchange for sentence protection. 43 M.J. at 16. The notion that an accused can formally waive a UCI issue does not suggest that an accused sub silentio waives an otherwise properly preserved UCI issue by failing to raise it with the convening authority during the case’s post-trial phase.

So Judge Crawford’s novel suggestion that failure to raise a matter with the CA post-trial “constitutes waiver of this issue” appears to lack any actual legal support. Any attempt to use this language from Judge Crawford’s dissent to create a new waiver rule should be rejected.

Posted by Dwight Sullivan