Army Court of Criminal Appeals determines that counsel have only one chance to object during closing argument.
Recently, on 5 July 2017, the Army Court of Criminal Appeals (ACCA) held that appellant, Sergeant (SGT) Kelly waived his right to claim on appeal that the government argued improperly when his defense counsel failed to object to the argument at the court-martial. In this case, SGT Kelly was accused of sexually assaulting a female sergeant while they were both drinking alcohol. SGT Kelly claimed that any sexually touching that occurred that night was consensual. However, SGT Kelly was found guilty and sentenced to one year confinement, forfeiture of all pay and allowances and a reduction to E-1. SGT Kelly testified during his court-martial. During closing argument, the government trial counsel stated that SGT Kelly lied to the panel during his testimony. SGT Kelly’s defense counsel did not object to the argument. When SGT Kelly attempted to appeal stating that the argument was improper, the ACCA denied him relief. The ACCA held that because the defense counsel did not object during the argument, the issue was waived. Recently, the ACCA has made several holdings just like this. Interestingly, the Court of Appeal for the Armed Force (CAAF) has held in the past that failing to object during a closing argument is considered “forfeiture” and not “waiver.” There is a significant difference between forfeiture and waiver. If an issue is forfeited, there may still be a valid appeal if “plain error” was committed when the military judge did not sua sponte correct the problem during the court martial. Waiver, on the other hand, means that the issue cannot be appealed. The recent holdings of the ACCA regarding improper argument means that a defense counsel needs to now be more aggressive about objecting during the prosecution closing argument if there is improper argument. Many military judges get upset with counsel when they continuously object to each other’s closing arguments. It can be extremely disruptive and make it difficult for the factfinders to follow the argument. However, the ACCA’s recent rulings make it clear, that if counsel do not object to improper argument during the actual argument, there will be no chance to appeal that issue later. If you or your loved one is facing a court-martial, you need someone with experience who knows what the most recent rulings are. I keep apprised of appellate rulings and I have a huge amount of experience litigating at the court-martial and appellate level. If you or your loved one is facing a court-martial or wants to appeal one, you need a strong advocate by your side. This is one of the biggest decisions in your life, call now, don’t wait. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.