It seems like just yesterday that CAAF upended lesser-included offenses jurisprudence in the military justice system, with its opinions in United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008) (finding that in Article 134, clause 1 & 2 are not LIOs of clause 3), United States v. Miller, 67 M.J. 385 (C.A.A.F. 2009) (finding that a simple neglect under Article 134 is not a LIO of every enumerated article), and United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010) (“returning to” the elements test for determining LIOs).
Applying those findings, CAAF determined that negligent homicide (in violation of Article 134) is not a lesser-included offense of either murder (in violation of Article 118) or involuntary manslaughter (in violation of Article 119) in a pair of cases decided on the same day (and citing to each other for the same principle, creating an infinite loop of citation).
One of those cases was United States v. McMurrin, 70 M.J. 15 (C.A.A.F. 2011) (McMurrin II). in 2008 Fireman McMurrin went on a cocaine and heroin binge with a fellow sailor, who died at the end of the night after McMurrin left him in the bushes to “sleep it off.” McMurrin was charged with involuntary manslaughter, but was convicted by a general court-martial composed of a military judge alone of negligent homicide as a lesser-included offense. Involuntary manslaughter is a homicide caused by culpable negligence, while negligent homicide requires only simple negligence. But negligent homicide, as an enumerated offense under Article 134, must also be either prejudicial to good order and discipline or service discrediting; an additional element from the Article 119 charge in McMurrin’s case. So, applying Miller and Jones, the NMCCA set aside the finding of guilty of involuntary manslaughter in a published, en banc opinion. United States v. McMurrin, 69 M.J. 591 (N-M.Ct.Crim.App. 2010) (McMurrin I). The majority concluded:
We find Jones dispositive, and conclude in this contested case, the charge provided the appellant neither actual nor constructive notice to defend against the charge of negligent homicide.
McMurrin I, 69 M.J. at 597. The JAG certified the case and CAAF affirmed in a 2011 opinion written by Judge Ryan and joined by all except then-Judge Baker.
Rather than assume structural error whenever an accused has been convicted of an offense on the mistaken assumption that it is an LIO of the charged offense, we must determine whether the constitutional error was prejudicial – and we conclude that in this case, it was. As in Girouard, Appellee was not charged with the offense of which he was convicted, the specification was not amended in accordance with Rule for Courts-Martial 603, nor did he defend himself on the theory that while he was not guilty of involuntary manslaughter, Article 119, UCMJ, he was guilty of negligent homicide, Article 134, UCMJ. But for the error Appellant would not have been convicted of negligent homicide. Such a conviction would have required the military judge to be convinced beyond a reasonable doubt that he was culpably negligent, which the military judge did not find here.
McMurrin II, 70 M.J. at 20. Judge Baker dissented in this case and in Girouard, based on his dissent in Jones where he felt that the court had abandoned too much precedent and ignored the unique status of Article 134 in military law and its historic use by the President as a means to identify lesser-included offenses to the offenses enumerated by Congress. But in his dissents in McMurrin and Girouard he also questioned why the majority would analyze for prejudice (as it did) when its LIO conclusion meant that the court-martial didn’t have jurisdiction over the negligent homicide offense in the first place:
If Appellant was convicted of an offense that was not a lesser included offense of the charged offense, then Appellant was also convicted of an offense with which he was not charged. Thus, the majority seems to acknowledge the right to be properly charged, but also seems to ignore the fact that the failure to properly refer charges is jurisdictional error under R.C.M. 201(b)(3). . . . Here, however, there is no referral defect—there is no referral at all. In addition to the plain language of R.C.M. 201(b)(3), it must follow that if there are defects in the referral process that are jurisdictional, then the complete absence of referral must be jurisdictional.
Girouard, 70 M.J. at 13 (Baker, J. dissenting). See McMurrin II, 70 M.J. at 20. These words may prove prophetic.
McMurrin was convicted of offenses other than the homicide, so his case was returned to the Convening Authority for action consistent with the mandate contained within the CCA’s opinion that concluded:
We set aside the guilty findings of negligent homicide and violating an order, dismiss Charges II and IV and the specifications thereunder. We affirm the remaining findings of guilty.
Our action in setting aside two guilty findings in this case constitutes a “significant change in the penalty landscape,” a change so significant that we are unable to reassess the sentence. See United States v. Buber, 62 M.J. 476, 479 (C.A.A.F.2006) (citations omitted). We therefore set aside the approved sentence and order the record returned to an appropriate convening authority who may order a rehearing on sentence only. After the proceedings are completed, the record of trial will be returned to this court for further review consistent with Boudreaux v. United States Navy–Marine Corps Court of Military Review, 28 M.J. 181 (C.M.A.1989).
McMurrin I, 69 M.J. at 597-98 (emphasis added). But when the Convening Authority got the case, something different happened:
He added additional charges, including a charge of negligent homicide!
After receiving the case, the CA referred additional charges to be combined with the rehearing on sentence. Among these additional offenses was a charge and specification for negligent homicide under Article 134, UCMJ, based on the same underlying conduct prosecuted at the appellant’s first court-martial. At the combined rehearing, officer members found the appellant guilty of negligent homicide contrary to his pleas and, for this offense together with the remanded offenses, sentenced him to confinement for three years and six months [42 months], forfeiture of all pay and allowances, reduction to pay grade E-1, and a dishonorable discharge. The CA disapproved 99 days of confinement and approved the remaining sentence as adjudged.
United States v. McMurrin, No. 200900475 (N-M.Ct.Crim.App. Jun 27, 2013) (unpublished) (McMurrin III). Of note, the original sentence was adjudged on June 17, 2009, and included confinement for 66 months.
When the case was returned to the NMCCA, McMurrin raised numerous issues including questioning the jurisdiction of the court-martial over the negligent homicide charge based on the CCA’s opinion that authorized a rehearing on sentence only. The CCA heard oral argument on this issue on May 16, 2013, (audio here) and published its opinion a month later, rejecting all of Appellant’s arguments. On the jurisdictional question, the court gets dragged into a messy fight over the scope of its mandate in the first case:
In simple terms, the rule of mandate requires that a lower court comply with a superior court’s mandate. Riley, 55 M.J. at 188. The lower court or CA must respect the mandate and take action that conforms to the limitations and conditions prescribed.
Slip op. at 6. The issue raised by Appellant is whether the Convening Authority’s action of combining the rehearing on sentence with a trial on new charges somehow failed to respect the authority of the CCA. The court rightly observes that new charges may be joined with existing charges in a rehearing. Slip op. at 2 N.2 (citing R.C.M. 1107(e)(1)(D)). See also R.C.M. 810(d)(1) (“When a rehearing or sentencing is combined with trial on new charges. . .”). But the court also considers whether its action that set aside Appellant’s first conviction of negligent homicide constituted dismissal with prejudice (and concludes that it did not). This is a curious analysis, considering that (in the post-Jones landscape) Appellant was never charged with negligent homicide, nor was that charge referred to his first court-martial. Procedurally, his conviction of the un-charged, un-referred offense of negligent homicide was erroneous, but there was nothing to dismiss.
The CCA also notes that “[t]here is no dispute here that jeopardy attached to the appellant’s conviction for negligent homicide at his first trial.” Slip op. at 10. I’m not so sure. Judge Baker’s dissents in this case and Girouard discuss the jeopardy question, and the Supreme Court has distinguished between acquittals by courts that lack jurisdiction (making the decision “absolutely void”) and courts that have jurisdiction but act on a fatally defective indictment (making the decision “only voidable by writ of error”). Ball v. United States, 163 U.S. 662, 669 (1896). Certainly, Appellant was acquitted of the greater offense of involuntary manslaughter, and it seems strange that the Government could then try him in a separate proceeding for the intuitively-lesser-included-offense of negligent homicide, but the unique nature of Article 134 compels this result (and the protections of Article 63 – such as they still exist – protect Appellant from the unintended consequences).
The CCA affirms the findings and sentence as approved after the rehearing in this case, and Appellant will undoubtedly seek review by CAAF. I anticipate the court will grant that review and consider the question of jurisdiction under these facts.