5 Rutgers-Cam L.J. 59 (1973-1974)
Medina: An Essay on the Principles of Criminal Liability for Homicide

handle is hein.journals/rutlj5 and id is 71 raw text is: MEDINA: AN ESSAY ON THE PRINCIPLES OF
CRIMINAL LIABILITY FOR HOMICIDE
Roger S. Clark*
This is an essay on the principles of criminal liability for homi-
cide, dealing particularly with the responsibility of a military com-
mander for the acts and omissions of his subordinates. The inspira-
tion for this article is a recent publication by Colonel Kenneth A. How-
ard, the military judge presiding at the Medina court-martial,' and
a feeling that the judge got it all wrong. I do not intend to canvass in
any detail the facts of what took place at My Lai.2 My interest here is
with the legal rules and principles relied upon by the court. Suffice it
to say that Captain Medina, the American company commander at
My Lai, was charged before a military court-martial with various of-
fenses arising out of his own and his company's activities. I am con-
cerned in this essay with the killings carried out by Medina's men.
With respect to the killings, Medina was originally charged as a party
to the crime of premeditated murder of an unknown number of un-
identified Vietnamese nationals, not less than one hundred.' The
learned judge reduced this charge to one of involuntary manslaughter
after he had concluded that a conviction for murder was not open to the
jury under the circumstances.4     The jury acquitted Medina on the
manslaughter charge.5
* Professor of Law, Rutgers School of Law at Camden. B.A., LL.M., Victoria
University of Wellington; LL.M., J.S.D., Columbia.
1. Howard, Command Responsibility for War Crimes, 21 J. PuB. L. 7 (1972)
[hereinafter cited as Howard].
2. This has been sufficiently covered elsewhere. See, e.g., S. HERSH, COVER-UP:
ThE ARMY'S SECRET INVESTIGATION OF THE MASSACRE AT My LAI (1972); S. HERSH,
My LAI 4: A REPORT ON THE MASSACRE AND ITS AFTERMATH (1972); McCarthy,
Reflections.- A Transition Figure, THE NEW YORKER, June 10, 1972, at 38. See also
the judge's charge to the jury in Howard, supra note 1, at 8-12. The judge's instruc-
tions are also reproduced in II THE LAW OF WAR-A D CUMENTARY HISTORY 1729
(L. Friedman ed. 1972).
3. Howard, supra note 1, at 7.
4. Id. at 8.
5. With respect to his own activities, Medina was charged with the premeditated
murder of a woman, the premeditated murder of a small child, and two counts of
aggravated or felonious assault. Id. at 7. The judge gave a directed verdict of ac-
quittal with respect to the child. Id. at 8. In the course of its two hour considera-

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