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.

6 Responses to “LIOs made easy”

  1. DC Steve says:

    Good decision for simplifying LIOs.

    But, the Gov will now need to specifically charge what previously was an LIO.

    I see a lot more multiplicity / UMC motions, or, gasp, charging in the alternative. Sounds kind of fun.

  2. John O'Connor says:

    That’s going to be a heck of an UMC motion when the TC just has to say “it’s not an LIO anymore, so I need to charge it so that the members can convict on either the enumerated offense or the LIO.”

  3. Anonymous says:

    What I found interesting is CAAF’s lack of concern about whether appellant properly preserved an objection to the “lesser-included” offense at trial. Take away for government counsel I guess is to charge in the alternative for certain offenses, which will of course invite more UMC motions at trial.

  4. Anonymous says:

    They weren’t concerned because this was an improperly charged LIO, not something you generally look to whether an objection is properly observed at trial.

    My take-away is that there is no need for creative saving of a charge by the military judge. I don’t think this gives license to charge everything under the sun. Charging indecent acts in addition to a rape is about as silly as arguing it is an LIO of rape.

  5. BDMF says:

    Does that mean the instructions will make clear they can’t convict the accused of both?

  6. Late Bloomer says:

    Not sure why Baker is so hot under the collar. Astute and competent TC’s should have been charging the Art 134s separately since Medina/Miller. Jones just clarfies this that much further. Gee, I can’t think of ANY TC or DC who would want a quasi-bright line rule.