CAAF finds waiver in Campos

Here's a link to CAAF's opinion in United States v. Campos, __ M.J. ___, No. 08-0409/NA (C.A.A.F. May 8, 2009). In an opinion by Judge Erdmann, CAAF holds that Seaman Campos waived his right to challenge the admissibility of a stipulation of expected testimony on appeal. Supporting its holding of waiver, CAAF observed that "both parties had stipulated" that the witness "need not appear at the trial. In addition, prior to admitting the document into evidence the military judge asked if there were any objections and defense counsel expressly indicated that he had none." Id., slip op. at 6. CAAF held, "In light of the military judge's detailed explanation of the stipulation, Campos's agreement to 'use of' the stipulation, and defense counsel's representation that he desired to enter into the stipulation, the record clearly reflects that Campos waived any right to claim error on the ground that Dr. Arnold did not personally appear to present live testimony." Id. CAAF then addressed what it termed the more difficult issue of whether the defense counsel's statement that he had no objection constituted a waiver of any challenge to the stipulation's admissibility. Yes under the facts of this case, held CAAF. The record establishes that the defense counsel had advance notice of the stipulation's contents and the defense counsel raised no objection. No claim of IAC was raised on appeal.

While joining in the majority's resolution of the waiver issue, Judge Baker wrote separately to raise concerns as to whether the military judge overly deferred to the expert's recommendation concerning the minimum sentence that should be imposed.

Of course, Campos joins United States v. Gladue, __ M.J. ___, No. 08-0452/AF (C.A.A.F. Apr. 28, 2009), to become the second recent CAAF opinion to apply waiver as a bar to reaching the substantive issue in the case. In a 2000 dissent, Chief Judge Crawford accused the majority of "swim[ming] in a sea of paternalism." United States v. Scalarone, 54 M.J. 114, 119 (C.A.A.F. 2000) (Crawford, C.J., dissenting). CAAF seems to have gotten out of the water and started to towel itself off.