You may recall a recent NMCCA opinion in which Senior Judge Booker’s concurring opinion predicts that the consequences of CAAF’s Jones opinion will roughly mirror the special effects from the movie 2012. United States v. McMurrin, __ M.J. ___, No. 200900475 (N-M Ct. Crim. App. Sep. 21, 2010) (en banc) (Booker, S.J., concurring). The government conceded what seemed to be by far the most important point in McMurrin — that under Jones and “the facts of this case, negligent homicide no longer satisfies the Constitutional or statutory requirements for an LIO of involuntary manslaughter.” The government and the defense then fought over whether McMurrin was nevertheless on notice of what he had to defense against under the facts of this case. The defense won that fight.
Even though the government conceded the central issue in the case and the point of contention appears highly case-specific, on Friday Code 46 moved “for enlargement of time to file a certificate for review.” United States v. McMurrin, __ M.J. __, No. 11-5001/NA (C.A.A.F. Sept. 24, 2010). Presumably such a certificate, if it is filed, wouldn’t ask CAAF to reverse the portion of NMCCA’s opinion ruling in accordance with the government’s concession. The invited error doctrine would appear to preclude the government from prevailing on that point at CAAF.