United States v. Townsend

CRAWFORD, Judge

(dissenting):

28. The failure to invoke waiver prevents finality, taxes scarce resources, and encourages withholding of objections. Brickner v. Voinovich, 977 F.2d 235, 238 (6th Cir.1992); cf. McCleskey v. Zant, 499 U.S. 467, 491-92, 111 S.Ct. 1454, 1468-69, 113 L.Ed.2d 517 (1991). The waiver rule places responsibility on defense counsel to object. Such a rale encourages all trial participants to seek a fair and impartial trial the first time around.

29. In this case there have been three waivers.

(1) Pursuant to Mil.R.Evid. 201, Manual for Courts-Martial, United States, 1984, the military judge took judicial notice of the regulation without objection. Mil. R.Evid. 103 provides that failure to object waives any objection absent plain error. If defense counsel had objected, a number of scenarios could have unfolded. First, the Government would have had the opportunity to attempt to prove the regularity of the regulation in question at trial. Failing that proof, the Government could have proceeded with a lesser-included offense or withdrawn the charge and recharged appellant with fraternization under Article 134, Uniform Code of Military Justice, 10 USC § 934. In any event, the record would have reflected the resolution of the issue of the regularity of Article 8-H-5 as it stood on November 20, 1990.
(2) There was a second and affirmative waiver in this case at the appellate level by civilian counsel with extensive prior experience in military appellate practice. 39 MJ 784, 785 (CGCMR 1994).
(3) Last, the issue was waived when it was not presented to this Court when a petition was first brought. Absent a manifest injustice, this Court should not exercise its discretion to entertain this issue. See, e.g., McCleskey v. Zant, supra. ¶ 28.

30. The reasons enumerated by the Supreme Court in McCleskey for applying waiver absent a manifest injustice should certainly be considered by this Court and applied to appellant’s case.

31. I am sympathetic with the concerns raised by Judge Cox. ¶ 12. When counsel are asked questions during oral argument, they should give their best answer; or if they do not know the answer, ask permission to file a supplemental brief.

In any event, for the reasons indicated I would affirm the decision below.