The Judge Advocate General of the Navy has certified this issue to CAAF in United States v. McMurrin:

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED BY SETTING ASIDE APPELLANT’S CONVICTION FOR NEGLIGENT HOMICIDE AS AN ERSTWHILE LESSER INCLUDED OFFENSE OF INVOLUNTARY MANSLAUGHTER ON THE GROUNDS OF CONSTITUTIONALLY INSUFFICIENT NOTICE WITHOUT TESTING FOR PREJUDICE PER FOOTNOTE 11 OF UNITED STATES v. JONES.

NMCCA’s decision in the case is published at 69 M.J. 591.

7 Responses to “Judge Advocate General of the Navy certifies case to CAAF”

  1. anon says:

    So now the Navy certifies something for a clarification of a footnote? Out of control.

  2. RY says:

    It seems to me they’re reading something into the footnote that isn’t really there. The prejudice is being convicted of a charge that wasn’t an LIO. Perhaps they’re confusing prejudice with notice.

    Also, “erstwhile”? Has that word ever surfaced in a QP before?

  3. Late Bloomer says:

    And wasn’t the en banc CCA decision unanimous? Seems like a bad case to certify.

    Does anyone know what critical variables the JAG considers when deciding to certify? I assume he has an advisor with appellate expertise who would alert him to those unfavorable facts.

  4. Anonymous says:

    Yeah, the JAG is out of control.

  5. Anon says:

    Advisors? Why of course – those Litigation Career Track Experts who try four courts-martial per year! But they are really complex and complicated courts….

  6. Anonymous says:

    Yeah, I do actually. Long memorandums like briefs from both the Government (Code 46), the Defense (Code 45) and the Criminal Law Division (Code 20). The AJAG for MILJUS (Code 02) also puts in his/her own memorandum.

  7. Anonymous says:

    What does being en banc or unanimous have to do with it? SCOTUS has reversed plenty of en banc Circuit decisions, eg, Chamber of Commerce v. Brown, where the majority comprised 12 judges. I’m sure there’s plenty of unanimous decisions out there reversed by SCOTUS. I don’t think the comfort of crowds is what the JAG is looking at.