In January 2015, Major Erik Burris, a former Army prosecutor, was himself convicted by a panel of officers, contrary to his pleas, of raping, forcibly sodomizing, and battering his wife. The members also convicted him of battering his daughter and disobeying a superior commissioned officer. As punishment, Major Burris was sentenced to be imprisoned for 20 years, to forfeit all pay and allowances, and to be dismissed from the service. Major Burris’ conviction and sentencing received extensive news coverage – including from international outlets like Reuters and the Daily Mail.
Citing Rules for Courts-Martial 905(e) and 919(c), the Army Court held that the failure of Appellant’s trial defense counsel to object to improper character evidence and improper argument waived any error. This Court, however, treats such failures as forfeiture and tests for plain error. Which court is right?
The facts underlying this issue involve the prosecution’s use of evidence and argument asserting that Major Burris sometimes assumed the role of a character he called “The Beast.” Major Burris described The Beast as being a mere joke, a name he made up to describe how he behaved when he became aroused around women he was sleeping next to. He said his classmates in college had known of the joke. Appellee’s brief at 6.
However, in testimony the prosecution elicited from Burris’ wife, The Beast was described as a character of a different sort:
Q. I want to ask you a question. You’ve been talking about The Beast a lot all morning.
Q. Who is The Beast?
A. The Beast is a name that Erik gave for his sexual — his uncontrollable sexual urges.
Q. But . . . who is it?
A. To me —-
Q. Is it another person?
A. To me — to me The Beast is this complete different person, this evil, angry, animal that comes at you. It doesn’t have any empathy for you at all, just attacks you and is non-responsive — unresponsive to my telling him to stop or asking him, “Please stop. What are you doing? It hurts.” You know, there was no communication back.
A. The Beast was this totally different personality of —
Q. But who does the personality belong to?
A. To Erik. Erik Burris. Erik Burris is The Beast.
Appellant’s Brief at 5-6; Appellee’s Brief at 5.
The prosecutor made use of the victim’s version of The Beast repeatedly during argument – from opening to summation, calling it “a perfect name” for Major Burris. Appellant’s Brief at 7.
Trial defense counsel did not object to the prosecution’s presentation of evidence characterizing Major Burris as the sinister version of The Beast. There were also no objections voiced to the prosecutor’s arguments along that vein.
On appeal before the Army Court, Major Burris sought relief, insisting that the evidence concerning The Beast was improper character evidence, and that the prosecutor’s argument making use of that evidence was therefore also improper. But, the Army Court refused to even entertain those errors. Instead, the Court cited Rules for Courts-Martial 905(e) and 919(c) and held:
[B]ased on the procedural rules at issue here, the mere failure to object is a valid waiver and not a forfeiture.
Appellant’s Brief at 9; United States v. Burris, No. 20150047, slip op. at 3, 2017 CCA LEXIS 507 *5 (sum. disp. on recon.) (emphasis in original)
The problem with this interpretation is that it runs flatly against Supreme Court precedent:
Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.
United States v. Olano, 507 U.S. 725, 733 (1993) (oyez).
The consequences of conflating the concepts of waiver and forfeiture are profound:
While [appellate courts] review forfeited issues for plain error, [they] do not review waived issues because a valid waiver leaves no error to correct on appeal.
United States v. Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017) (CAAFLog case page).
This is essentially Burris’ position. He argues that while the Rules for Courts-Martial may say “waiver,” they really mean “forfeiture.” Appellant’s Brief at 14. He also makes an appeal to having CAAF stick to its prior decisions on these questions, applying forfeiture rather than waiver – stare decisis. Id. at 19. In relief, Major Burris asks that the case be returned to the Army Court so that his allegation of error can be reviewed under the standard for forfeiture. Id. at 25-26. As an alternative, if CAAF finds the prosecutor’s use of The Beast at trial to have been plain error, Burris asks to have his conviction set aside. Id. at 28.
In response, the Army Government Appellate Division (GAD) concedes that, despite the language in the Rules for Court-Martial, “failure to object to improper character evidence and argument typically results in forfeiture [rather than waiver of the error].” Appellee’s Brief at 9.
In this case, though, GAD argues that Major Burris’ defense team did more than merely fail to object, but instead engaged in conduct that demonstrably waived the issues surrounding The Beast.
To support this contention, GAD notes the lack of any defense pretrial motion to exclude The Beast from the proceedings, despite having been given notice that evidence of The Beast would be presented at trial. Id. at 11. Not only did trial defense counsel fail to object before trial, but they also failed to object to The Beast during trial. Id. at 12.
These arguments appear to just be beefed up assertions that the defense failed to object. Mere failure to object, of course, does not a waiver make. But, there is one fact that pushes the question closer. The trial defense counsel voiced “no objection, Your Honor” when the prosecution offered the less-cringe-worthy account of The Beast that Major Burris himself described to CID agents. Id. at 12. That sort of action is certainly a step in the direction of waiver.
In addressing Major Burris’ alternative request for relief (that his conviction be set aside if CAAF finds the trial error to be “plain”), GAD argues that there is not only no plain error, there is no error at all. Instead:
The Beast is not impermissible character evidence; rather it is a nickname, which is not necessarily suggestive of a criminal disposition.
Id. at 13. In support of this position, GAD offers examples from the Federal Circuit Courts where admitting a nickname for the defendant like “Crazy K” or “Murder” was not error, plain or otherwise. Id.
It seems likely that CAAF will hold, in accord with Olano and existing precedent, that the mere failure to object to improper character evidence and argument constitutes forfeiture, and not waiver. The Army Court will therefore get another crack at this case. The Army Court will then have to determine whether it was error to allow evidence and argument on Burris’ nickname for himself, and his victim’s characterization of what that nickname meant to her.
Disclaimer: Argument previews are usually authored by Zachary Spilman. I have authored this piece because Mr. Spilman will be arguing this case as counsel of record for Major Burris.
• ACCA decision
• ACCA decision on reconsideration
• Blog post: CAAF grants
• Appellant’s brief
• Appellee’s (Army Gov’t App. Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview