Today CAAF issued a summary disposition in United States v. Burris, 78 M.J. 56, No.17-0605/AR (CAAFlog case page), reversing the Army CCA and remanding for a new Article 66 review:
On further consideration of the granted issue (77 M.J. 138 (C.A.A.F. 2017)), the briefs of the parties, and oral argument, we note that the United States Army Court of Criminal Appeals concluded that the mere failure to object to evidence and findings argument waives challenges to such evidence and argument and that the Government concedes that the lower court’s reasoning was in error. We agree with the Government that a mere failure to object to the admission of evidence and to findings argument constitutes forfeiture, not waiver. United States v. Andrews, 77 M.J. 393 (C.A.A.F. 2018); United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014). We further note that the Government has argued for the first time in this Court that Appellant affirmatively waived his challenges to the admission of character evidence and argument. We leave this argument for the lower court to address on remand.
Accordingly, it is, by the Court, this 19th day of July, 2018,
That the decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals for a new review under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866 (2012).
Disclosure: I represent Major Burris as his civilian appellate defense counsel and I argued this case at CAAF on his behalf.
• 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
• Oral argument audio
• Blog post: CAAF summary decision