Who controls

Some years ago the AFCCA decided several cases in which it “held” that the CAAF erred in applicable decisions and effectively “overrule” the CAAF. CAAF, of course, told the AFCCA that they cannot overrule the CAAF and should follow CAAF’s decision. Now it seems the Army Court of Criminal Appeals may be doing something similar; at least that’s the impression given from two recent grants by CAAF.

In United States v. Tovarchavev (link to ACCA) the issue granted is:

WHETHER THE ARMY COURT ERRED, FIRST, IN FINDING THAT THIS COURT OVERRULED SUB SILENCIO THE SUPREME COURT HOLDING IN CHAPMAN v. CALIFORNIA, 386 U.S. 18, 24 (1967), AND THIS COURT’S OWN HOLDINGS IN UNITED STATES v. WOLFORD, 62 M.J. 418, 420 (C.A.A.F. 2006), AND IN UNITED STATES v. HILLS, 75 M.J. 350, 357 (C.A.A.F. 2016), AND, CONSEQUENTLY, IN TESTING FOR PREJUDICE IN THIS CASE USING THE STANDARD FOR NONCONSTITUTIONAL ERROR.

ACCA noted that: “Our resolution of the Hills error in this case turns entirely on determining the appropriate test for prejudice of a forfeited constitutional error. In their briefs, both parties assert the appropriate standard of review for a forfeited constitutional error requires the government to show the error was “harmless beyond a reasonable doubt.” On the other hand, recent decisions by the CAAF have stated that the inquiry is whether appellant has shown material prejudice to a substantial right.”

In United States v. Sanchez the issue granted is:

WHETHER THE ARMY COURT MISAPPLIED THIS COURT’S CONTROLLING PRECEDENTS IN CONCLUDING: (1) THE MILITARY JUDGE DID NOT CONSIDER EVIDENCE TO COMMIT OTHER CONDUCT, AND (2) DEFENSE COUNSEL “WAIVED” THIS ISSUE BY FAILING TO OBJECT AT TRIAL.