Potential First Amendment case fizzles

The granted issue in Maynard looked fascinating:

WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR IN ALLOWING PANEL MEMBERS TO CONSIDER EVIDENCE OF APPELLANT'S ALLEGED ANTI-AMERICAN AND ANTI-WAR VIEWS AS AGGRAVATION EVIDENCE UNDER R.C.M. 1001(b)(4) TO THE OFFENSE OF ABSENCE WITHOUT LEAVE, THEREBY PREJUDICING APPELLANT'S SUBSTANTIAL RIGHTS.

But the opinion that resulted was a rather run-of-the-mill waiver/plain error analysis. United States v. Maynard, __ M.J. ___, No. 07-0647/AR (C.A.A.F. May 6, 2008).

Writing for a unanimous court, Judge Erdmann emphasized that counsel didn't object to testimony about the presence of "anti-war" or "anti-American" material left behind in Maynard's room when he went AWOL. Rather, counsel addressed the issue on cross. CAAF held that if the military judge erred by allowing such testimony, the error wasn't clear and obvious and thus didn't meet the plain error standard. CAAF concluded: "Maynard has failed to establish on appeal that the admission of this testimony was so obviously erroneous, if erroneous at all, that the military judge can be faulted for taking no action and, like defense counsel, allowing its admission without comment." Id., slip op. at 10.