Here is a link to NMCCA’s latest and greatest En Banc opinion, United States v. McMurrin, No. 200900475 (N-M Ct. Crim. App. Sep. 21, 2010), implementingCAAF’s recent conversion to the elements test for determining LIOs, see United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010). Judge Price, writing for a unanimous court (though Judge Booker filed a concurring opinion and Judges Resimeier and Payton-O’Brien did not participate), begrudgingly implements CAAF’s conversion, writing:
Notwithstanding more than 60 years of precedent, we conclude that the CAAF’s decisions in [United States v. Miller, 67 M.J. 385, 388 (C.A.A.F. 2009)] and Jonesconstitute binding precedent and are dispositive here.
Post-Jones, the statutory elements test is the primary, if not sole, test for determining what constitutes an LIO under Article 79, UCMJ. As negligent homicide includes at least one element not explicitly included in the offense of involuntary manslaughter, it is not an LIO of involuntary manslaughter. In addition, the specification alleged did not otherwise provide the appellant notice that he must defend against the offense of negligent homicide. Accordingly, we conclude the approved findings of guilty to negligent homicide must be set aside.
Judge Booker takes issue with Miller and Jones. This about sums up his comments:
In sum, I worry about the potentially overbroad reach of Jones and Miller. Those two cases could wipe away decades of precedent — of particular concern in this case, the precedent noted in the majority opinion regarding the relation between involuntary manslaughter and negligent homicide; could do serious violence to the concept of stare decisis — particularly the predictability that such a doctrine affords; and could turn an “eminently straightforward” approach to military justice into a Gordian knot of confusion.
Thanks to CAAFlog for alerting me.