As CAAFlog previewed earlier in the Top 10, CAAF’s game-changing decision in United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010), and subsequent application in United States v. Alston, 69 M.J. 214 (C.A.A.F. 2010), has for the near future totally altered how the military pleads lesser included offenses. The place of Jones in the Top 10 was solidified the day it was published. The decision was immediately identified as the most important decision of CAAF’s last term, a “landmark” decision, and, my favorite, “a big freakin’ deal.”
While the Jones LIO test is, as Judge Ryan characterized it, “eminently straightforward,” the Manual for Courts-Martial and military practice for the past . . . 60 years (?) . . . have determined LIOs differently. Jones will require a re-evaluation of LIOs in the entire Manual and the CCAs and CAAF will need to work out other issues such as notice pleading for purposes of Art. 134, see United States v. Fosler, __ M.J. ___, No. NMCCA 201000134 (N-M. Ct. Crim. App. Oct. 28, 2010) and United States v. Bernard, No. 1328 (C.G. Ct. Crim. App. Dec. 21, 2010), and the prejudice standard to be applied to all the cases in the pipeline that will fail under Jones, see United States v. McMurrin, 69 M.J. 591 (N-M Ct. Crim. App. Sep. 21, 2010) (certified issue here).
Why is the decision not higher in the Top 10 given the game-changing nature of the decision? Internecine warfare amongst CAAFlog contributors re: the Top 10? Total lack of cross-over appeal outside the MilJus community? I’d have to go more with the latter as I think many of us here at CAAFlog realize that while Jones changes pleading as we know it, and may change the entire pleading landscape in the future, the decision is pretty inside baseball. I would have to agree that 2 of the remaining 3 on the list are rightfully higher for exactly that reason, broader appeal and coverage outside of military justice circles. The third I think landed in the Top 3 due to an unhealthy obsession with military capital punishment by a certain CAAFlog contributor, who I won’t identify :-)