You know the Staples commercial with the “easy” button? CAAF just pushed the easy button for determining LIOs. Under Jones (available here; dissent here), if one offense’s elements are completely a subset of another’s, then they stand in an LIO-greater offense relationship. But if offense A includes an element that offense B doesn’t, then offense A isn’t an LIO of offense B.
In a 4-1 opinion written by Judge Ryan, CAAF holds: “rather than embracing a ‘Hydra’ we return to the elements test, which is eminently straightforward and has the added appeal of being fully consonant with the Constitution, precedent of the Supreme Court, and another line of our own cases.” CAAF repudiates its precedent allowing Article 79 to be applied where the purported LIO’s elements aren’t a subset of the purported greater offense’s elements. And it expressly overruled the holding in United States v. Schoolfield, 40 M.J. 132 (C.M.A. 1994), that indecent acts is an LIO of rape.
To paraphrase the Vice President, the Jones opinion is a big freakin’ deal. I hope that the Joint Services Committee pounces on this and cleans up the MCM quickly to remove purported LIOs that no longer are under Jones‘ elements test. Otherwise the MCM will present quite a few traps for the unwary.
A portion of the Jones majority and much of Judge Baker’s Jones dissent are devoted to a discussion of Jones‘ implications for the President’s enumeration of specific offenses under Article 134. The majority indicates that is an act of presidential narrowing of the general article, the validity of which is unaffected by the Jones ruling. I’ll offer some thoughts on that topic in a separate post.
p.s. — I tried rewriting Counting Crows’ song “Mr. Jones” with “Airman Jones” lyrics, but it just didn’t work.