Anonymous on Nelson

​The problem with this opinion [is] it exemplifies an absurd result where a majority of the Court ruled that there was no waiver, and yet, the Court’s judgement is based 66% on a finding that there was waiver.  The Court, speaking with the voice of the majority, determined that this was NOT legitimate.  So this “judgment” determines that there was no waiver in this case, but the appellant loses because of waiver.    
 
It seems like the appropriate (or a better) resolution of this case would have been for Maggs and Crawford to simply dissent on the waiver issue, but respecting the majority’s decision on the issue of waiver, consider the substantive issue anyways.  This opinion involves two judges undermining their own Court’s majority decisions on the issue.  It also raises “waiver” to some exalted status above any other issue.  For waiver, you don’t need to simply convince a majority of the Court, since if any judge individually decides that there is waiver, they are going to refuse to decide the issue.  So it seems all other issues are decided by the majority of the Court, but waiver is decided by individual judges.  I understand the legal machinations involved in how the decision came out like it did.  But I believe there was a better way to resolve it with a dissent by Maggs and Crawford regarding waiver.  The issue could have been resolved one way or another, and they could have avoided issuing such a peculiar “judgement.”
 
CAAFLOG’s posting is also slightly inaccurate where it says “Trial defense counsel appears to have acquiesced to this remedy.”  The majority of the Court disagrees with that assessment.  Only Judges Maggs and Crawford believe that was true.      
 
Finally, Judge Maggs’ waiver argument is effectively the tail wagging the dog.  The gist of the question on appeal was whether or not, as a matter of law, a scope violation requires suppression of the entire statement.  If the answer to that question is, “yes” then necessarily, any objection to the statement on the grounds that there was a scope violation by definition would be a request to suppress the entire statement.  Judge Maggs does not contest that the issue of whether there was scope violation for the failure to report was raised, (albeit he claims it was initially raised sua sponte by the judge).  His finding of waiver was based on his belief that “Appellant did not move for suppression of the entire statement on the specific ground that the NCIS agents did not warn him that he committed an offense by failing to report others.”  But ‘whether or not the rule requires the remedy of total suppression as a matter of law’ is precisely the issue that the Court was supposed to be resolving!  If the proper required remedy under the law was that the whole statement needed to be suppressed, then the defense’s objection and request for suppression at all would necessarily be sufficient.  Simply put, depending on how the Court decides the underlying issue, an objection could necessarily equal a request for suppression of the whole statement as a matter of law.  Therein lies the problem with finding waiver before deciding the issue.
 
By finding waiver, Maggs essentially answered the granted issue in the negative without doing any substantive analysis.  Simply put, if the statute requires total suppression, then the issue was raised at trial the moment the TDC moved/objected after the issue was noticed by the judge.  Notably, the rule does not require any specific request for a remedy in order to preserve the issue.  And if the statute requires one specific remedy, then the remedy is necessarily included in the objection.  Thus, it was improper of Judge Maggs and Crawford to decide waiver without first resolving a predicate legal issue that implicitly underpins their decision. Ultimately, the issue of waiver on the grounds Maggs found could not logically be resolved without resolving the underlying issue.  But Maggs does so without any substantive analysis on the issue itself.  Thus, there is a logical pillar missing in his argument.
 
It is important to remember that CAAF’s precedent already acknowledges a circumstance like this – where the issue needs to be resolved prior to deciding if there was waiver.  This is true because as CAAF has said, there cannot be waiver if the law is unsettled.  The CAAF’s precedent is that if the law is not clearly resolved on an issue, there cannot be a waiver.  "[W]hen there is a new rule of law, when the law was previously unsettled, and when the [trial court] reached a decision contrary to a subsequent rule...it is enough that an error be plain at the time of appellate consideration.”  United States v. Oliver, 76 M.J. 271, 274 (C.A.A.F. 2017) (quoting Henderson v. United States, 568 U.S. 266) (2013).)  Here, all members of the Court seem to acknowledge that this is an unsettled issue.  So his finding of waiver also violates CAAF precedent.  And it seems his decision strays from the fundamental concept regarding waiver that it is “an intentional relinquishment of a known right.”  If CAAF doesn’t even know whether he had the right to have the whole statement suppressed, how was the defense counsel supposed to know?  And if he (and the appellant) didn’t know, how then could it be waiver?  At a minimum, he and Judge Crawford should have conducted a plain error analysis.
 
Thus, it’s an unfortunate opinion based on shaky logic that ignores CAAF precedent.

Anonymous