On 7 July 2008, CAAF granted review of this issue: “WHETHER THE MILITARY JUDGE ERRED WHEN HE HELD APPELLANT’S WAIVER OF HIS ARTICLE 32 RIGHTS FOR HIS 20 SEPTEMBER 2001 COURT-MARTIAL APPLIED TO HIS 23 OCTOBER 2006 REHEARING.” United States v. von Bergen, 67 M.J. 4 (C.A.A.F. 2008). Today, CAAF called for briefing of an additional issue in the case. CAAF’s order provides:

Upon further consideration of the granted issue, 67 M.J. 4 (C.A.A.F. 2008), the briefs of the parties, and in light of United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008), the Court has determined that supplemental briefing prior to oral argument would be of assistance in resolving the granted issue. Accordingly, it is, by the Court, this 28th day of October, 2008, ORDERED: That the Appellant and the United States shall, on or before November 7, 2008, each file a supplemental brief addressing the impact of United States v. Medina, if any, upon the granted issue.

United States v. von Bergen, __ M.J. ___, No. 03-0629/AF (C.A.A.F. Oct. 28, 2008).

The esteemed Major Howard H. Hoege III has lauded Medina, observing: “Allowing Article 134 to previously devolve into the ultimate safety new for the government — to the point where military judges explain to the accused that the only reason they include a clause 1 or 2 element is to gird the accused’s conviction from a successful appeal — gives life to the accusation that Article 134 is ‘the Devil’s Article.’ The good news from Medina is that military justice practitioners may look forward to much cleaner practice both in the realm of article 134 and the breadth of offense-relation doctrines.” Major Howard H. Hoege III, Flying Without a Net: United States v. Medina & Its Implications for Article 134 Practice, Army Law., June 2008, at 37, 49 (footnote omitted). Tone Loc made a similar point: “That medina’s a monster y’all.” CAAF appears ready to take another shot of the funky cold Medina in von Bergen.

3 Responses to “To quote Tone Loc, funky cold Medina”

  1. Anonymous says:

    The rule of practice from Medina is simple. Never, ever charge a 134 offense as a clause 3 violation. Always opt for a clean combo of clauses 1 and 2. No fuss, no muss.

  2. Dew_Process says:

    The real problem is that in most 134 specs, no one alleges which clause is applicable. So, I, like Don Quixote, move to dismiss for failing to state an offense; and when that’s denied, demand a Bill of Particulars. That’s the only way to protect your client’s Due Process “notice” right.

    I think the better answer is the easiest – force the Drafters of Specs to allege just what clause it is they are accusing the Accused of violating! Then these issues will go away.

  3. Dew_Process says:

    PS: There’s an old case from the 50’s that actually suggested that approach.