United States v. Jones, 68 MJ 465 (CAAF 2010), and United States v. Alston, 69 MJ 214 (CAAF 2010), its reinterpretations of the standards for determining whether offenses constitute valid lesser-included offenses that put the defense on adequate notice of what elements and legal theory they are defending against. As the result of Jones, crimes charged under Clauses 1 and 2 of Article 134 that were previously considered LIOs of enumerated offenses found in the rest of the UCMJ's punitive articles are no longer valid LIOs.
Judge Ryan wrote 2 of the opinions, and Judge Stucky wrote one. Judge Baker dissented from the Ryan opinions and concurred in the result in the third case.
United States v. Girouard, a Judge Ryan opinion, appears to be the main case of the 3 decided yesterday; in any event, it is by far the longest. Girouard deals with a squad leader implicated in the killings of 3 Iraqi civilians. While Girouard was charged with premeditated murder for the deaths, Girouard's trial defense counsel convinced the military judge to instruct the members on the lesser-included offense of negligent homicide, which was listed as an LIO in the Manual for Courts-Martial at the time of the trial. The members found the appellant guilty of the LIO. After Jones, the appellate defense counsel challenged the LIO instruction on the basis that the offense of negligent homicide has at least 1 statutory element not included in the offense of premeditated murder. CAAF agreed with the defense argument and reversed the convictions for negligent homicide while Judge Baker repeated his objections from his Jones dissent regarding the Court's testing for prejudice and the return to a statutory elements test.
In United States v. McMurrin, the majority, in an opinion written by Judge Ryan, holds that negligent homicide is not a lesser-included offense of involuntary manslaughter for much the same reasons laid out in Girouard. Accordingly, Judge Baker dissented.
In United States v. Bonner, Judge Stucky wrote for the majority in finding that assault consummated by a battery was a legitimate LIO of wrongful sexual contact, reaffirming Alston's holding that the statutory language of the elements of the 2 offenses need not be identical in order for the Court to determine the elements of the lesser offense are included in the greater offense's elements. Judge Baker summarily concurred in the result, again citing his Jones dissent.