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) (discussed here) (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) (discussed here) (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) (discussed here) (returning to the elements test for determining LIOs).

Applying those cases, 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: United States v. Girouard, 70 M.J. 5, 9 (C.A.A.F. 2011) (link to slip op.), and United States v. McMurrin, 70 M.J. 15, 18 (C.A.A.F. 2011) (link to slip op.). I discussed both cases in a 2011 post titled Pushing the LIO Easy Button (and noted a humorous citation in a post titled A Mobius Strip of Citation).

McMurrin involved a Sailor who, in 2008, went on a cocaine and heroin binge with a fellow Sailor (update/clarification: McMurrin used only cocaine while the other Sailor combined the two drugs). The other Sailor died at the end of the night after McMurrin left him in the bushes to “sleep it off.” Among other charges, McMurrin was charged with involuntary manslaughter in violation of Article 119, but he was convicted of negligent homicide in violation of Article 134 as a lesser-included offense. Involuntary manslaughter is a homicide caused by culpable negligence, while negligent homicide requires only simple negligence. However, as an enumerated offense under Article 134, negligent homicide must also be prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces; an additional element not found in the Article 119 charge. 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) (link to slip op.). The Judge Advocate of the Navy certified the case to CAAF, where the CCA was affirmed (link to CAAF op.).

Because McMurrin’s homicide conviction was reversed, the CCA ordered a sentence rehearing. But when the case was returned to the convening authority, charges were added, including a charge of negligent homicide under Article 134. McMurrin was then tried and convicted of the new negligent homicide charge, and sentenced for both the new and old convictions. On appeal he asserted that the convening authority’s action adding charges exceeded the scope of the mandate on remand, but the NMCCA rejected that argument in an unpublished opinion. United States v. McMurrin, No. 200900475 (N-M.Ct.Crim.App. Jun 27, 2013) (discussed here) (link to slip op.). CAAF then denied review.

On August 29 McMurrin filed a cert petition with the Supreme Court. The petition is available here.

McMurrin challenges his negligent homicide conviction on double jeopardy grounds, asking the Court to clarify its decision in United States v. Dixon, 509 U.S. 688 (1993), arguing:

Before Dixon, there was clearly a strain of Double Jeopardy Clause jurisprudence that recognized a prohibition on vexatious successive prosecutions even when the government could have brought two theories of criminal liability at a single trial but failed to do so. See, e.g., Jordan v. Virginia, 653 F.2d 870, 873 (4th Cir. 1980); see also George C. Thomas III, The Prohibition of Successive Prosecutions for the Same Offense, 71 Iowa L. Rev. 323, 371-72 (1986). But Dixon uprooted that tradition. Or rather, ignored it.

Under Dixon, the only protection defendants have against successive prosecutions is to trust in the goodwill of prosecutors. Under Dixon, there is no constitutional limit on the ability of prosecutors to vex a defendant with successive prosecution so long as each trial uses slightly different elements to criminalize the defendant’s conduct. Various scholars have pointed out that Dixon essentially guts a core purpose of the Double Jeopardy Clause. See, e.g., Kirstin Pace, Fifth Amendment – Adoption of the “Same Elements” Test: The Supreme Court’s Failure to Adequately Protect Defendants from Double Jeopardy, 84 J. Crim. L. & Criminology 769, 799 (1994); Nancy J. King, Portioning Punishment: Constitutional Limits on Successive and Excessive Penalties, 144 U. Pa. L. Rev. 101, 120 (1995).

The lack of a constitutional limit on successive prosecutions is especially troubling in today’s criminal justice system. An ever-increasing profusion of overlapping criminal statutes means that prosecutors have more ability than ever before to vex a defendant with multiple trials for the same transaction. See Ashe v. Swenson, 397 U.S. 436, 451-52 (1970) (Brennan, J., concurring). Though Petitioner’s case arose in the military justice system, the constitutional principle at issue is implicated in all jurisdictions. Writing about state crimes, one commentator noted that “[h]omicide offenses are generally defined with such distinct elements that Blockburger would allow more than one conviction for a single killing.” Anne Bowen Poulin, Double Jeopardy Protection from Successive Prosecution: A Proposed Approach, 92 Geo. L. J. 1183, 1216 (2004). As such, there is no reason to believe that Petitioner’s case is an isolated injustice — the circumstances of this case could recur throughout the country.

Pet. at 7-9.

The petition is an interesting read. I’ll be watching to see if the Courts calls for a response from the Solicitor General.

One Response to “The cert petition in McMurrin”

  1. phil cave says:

    I’ll say that McMurrin, has jurisdiction with the Supreme Court.  Whether should grant on the issues is a different question.