Day 2 - Feb 6, 2007, "Opening Statements and Prosecution Blunders," by truthout.org

Day 3 - Feb 7, 2007, "The Watada Mistrial: Here's What Really Happened," by truthout.org

         “First I want you to understand that a mistrial in a case of this significance is a very rare occurrence, And when it happens, it has potentially very significant effects. In this case, it is my professional opinioin that Lt. Watada cannot be tried again because of the effect of double jeopardy.   

        "As you all know, we did not consent to a mistrial.  We did not ask for a mistrial.  We did nothing to warrant a mistrial.  The judge made all of his rulings himself or based upon motions by the government.  
       

        "Once jeopardy has attached – and it clearly did attach in this case, when the jury panel was sworn in and when the first witness testified -- the protection against double jeopardy applies as a constitutional matter.

          

        "And there may be arguments that could be made by the government to get around that, and we will probably have a lively discussion of it.  
But the first motion we file when they attempt to bring this case back will be a motion to dismiss with prejudice, based upon double jeopardy.  
       

        "And if that motion is not granted, we will immediately make an interlocutory appeal, because we believe that even the military appellate courts will agree with us that the circumstances under which the judge acted today were an abuse of his discretion, and that there was no justification whatsoever either for the subject inquiry to be brought up in the manner in which it was; for the additional inquiry of Lt. Watada in which he elicited statements which he then purported to utilize to criticize and withdraw the Stipulation of Facts to which the government and the defense had agreed last week, when two of the charges were dismissed in return for our agreement that we would stipulate to facts to avoid the necessity for reporters to testify.

 
        "The case is now back in a posture that it was in some weeks or months ago, and I do not believe it will ever be resurrected or ever can be resurrected.

        

        "Our hope at this point is that the army will realize that this case is a hopeless mess, that this has not been created by the defense.  The defense has been very consistent in the positions, in the arguments that we’ve taken.  Lt. Watada has been extremely consistent in his arguments and his claims.  
       

         "And therefore, we are now in a position because of the government and rulings by the court that we think are erroneous, we will have the consequence of ending these proceedings altogether.”

______________________________________________________  

Feb 7 - The Watada Mistrial: Here's What Really Happened
    By Bill Simpich
    t r u t h o u t | Report

    Thursday 08 February 2007

    First Lt. Ehren Watada knew exactly what his case was about - and that scared the judge.

    There was absolutely no reason to stop the Watada trial.

    The judge's claim that Lt. Watada did not fully understand a document he signed admitting to elements of the charges is completely untrue (see Melanthia Mitchell, AP, 2/8/07).

    The military seized on that claim and complimented the judge for "protecting the rights of the accused" in granting the mistrial.

    Here's what really happened.

    Lt. Watada repeatedly told the judge on Monday and Tuesday morning, before the trial began, that he agreed with the 12-page "stipulation of facts" that was provided to the panel of seven officers as evidence of most of the key events in this case. The lieutenant reminded the judge in every response that he continued to believe that his orders to go to Iraq were illegal.

    I was there, with a roomful of media, military and civilian observers. We all saw the judge review the document at length and offer a number of suggested factual corrections. (Also see "Watada Lawyer: Double Jeopardy Will Be Argued If Second Trial Proceeds.")

    The judge also asked Lt. Watada if he felt "compelled" or "coerced" in his decision to not board the plane to Iraq. The lieutenant assured him that it was an intentional act and that his failure to board the plane was not due to any fear for his personal safety, while carefully reasserting his belief that he had no duty to obey an illegal order.

    The judge reminded him that he had already ruled that the order was legal. Lt. Watada responded that he understood what the judge was saying, and then repeated his belief once more.

    The stipulation specifically stated that Lt. Watada did not waive any legal defenses not addressed in the document.

    The purpose of this stipulation was to drop two charges against Lt. Watada (sparing him exposure to two additional years in prison) in exchange for a written agreement that most of the facts would be admitted into evidence, and thereby evaporate any purported reason for subpoenaing journalists to testify against the lieutenant at the trial.

    The document was prepared by the government. When construing a document, it is interpreted in favor of the person who did not prepare it.

    It was signed by all parties over a week ago. This was not a last-minute task.

    The judge was satisfied. The stipulation was accepted by the court and distributed to the panel Tuesday morning.

    The panel proceeded to hear the entire prosecution case on Tuesday: the 12-page written stipulation, two videos that were also part of the stipulation, and three prosecution witnesses that appeared to aid Lt. Watada's theory of the case.

    The judge raised concerns about the document on Wednesday morning, moments before Lt. Watada was set to take the witness stand.

    The judge had just received a new proposed legal instruction from Seitz. Since the judge had recently ruled that the order given to Lt. Watada to deploy to Iraq was "legal," Seitz took the logical next step. Entitled "Reasonable Mistake of Fact/Law," his new instruction was designed to inform the panel that even if Lt. Watada were "mistaken" in his belief that the order was illegal, a defense to the "missing movement" charge would be viable if the panel made a finding that Lt. Watada's belief that the order was illegal was "reasonable."

    Shaken by this instruction, the judge tried to claim that Seitz had introduced some error by submitting this instruction, forgetting that the panel had not seen the instruction and hence any error was literally impossible!

    Realizing the error of his ways, the judge then tried to speak to Lt. Watada about his understanding of the stipulation without asking Seitz for his permission. After initially warning the judge that he might not let him speak to Lt. Watada, Seitz relented and told the judge that he would let him speak to him over objection.

    The judge repeatedly tried to shake Lt. Watada's insistence that he reasonably believed that he was following an illegal order, all the while insisting that he wasn't trying to mislead him in any way. Lt. Watada again respectfully but firmly punctuated his remarks with his state of mind.

    Unsuccessful in his apparent effort to derail the defense, the judge then claimed that "I'm not seeing we have a meeting of the minds here," Head said. "And if there is not a meeting of the minds, there's not a contract." (Seattle Times)

    At this point, both the defense and the government figuratively "threw their arms around each other" and repeatedly told the judge that they wanted the trial to go forward. Courtroom observers agreed that they had never seen such a thing in their lives.

    The Seattle Times reported that "The defense and prosecution teams both believed the agreement did not constitute an admission of guilt. But the judge on Wednesday said the agreement included all the elements required to find Watada guilty. It was more than an agreement, Head said: It was what he termed a "confessional stipulation," with whatever reasons behind the action irrelevant to the question of guilt."

    Lt. Watada's attorney, Eric Seitz, said that the stipulation was not an admission of guilt.

    "No. Absolutely no way," he said. "Lt. Watada's a smart guy. He knew exactly what he was agreeing to." (Los Angeles Times)

    The judge turned to the prosecution and said "I can't unring that bell." But then, in what appeared to be a moment of panic, he suggested to the prosecution that they recall their witnesses. He warned them that he was considering issuing a mistrial. He offered to let them reopen their case if they wanted to. He offered them whatever time they needed to make a decision "thirty minutes, an hour, or more." When the prosecution assured the judge that they only needed thirty minutes, there was a disappointed look on his face.

    Apparently the defense was also asked if it would be willing to withdraw the stipulation and let the case proceed on that basis. As the panel had been relying on the stipulation throughout the prosecution case, the defense was not willing to do anything of the sort.

    Upon the prosecution's return, they asked for a mistrial. The defendant opposed it. The motion was granted, and a new trial date was set. But now there was a new problem that may make any new trial impossible.

    Once the trial commenced, "jeopardy attached." Once jeopardy attaches, a second trial is generally not possible. This is known as "double jeopardy."

    Like all maxims, there are exceptions to the rule of double jeopardy. For example, if a verdict cannot be reached by the finder of fact, defendant cannot object to the resulting mistrial. Nor can the defense create error in order to get the defendant off the hook.

    But a mistrial caused by judicial or prosecutorial error is another story. Generally, the charges must be dismissed in order to ensure that the authorities are not tempted to commit error in order to obtain a second trial when events are not going their way.

    This is what happened here. The prosecution knew that Lt. Watada was not waiving his right to defend himself against the charges. Again, the stipulation specifically stated that no such waiver was being made.

    The judge tried to make some mileage by reciting on the record a warning that he had previously given to Lt. Watada that by signing the stipulation, he was admitting that there was sufficient evidence on each element of the "missing movement" offense (for failing to board the plane to Iraq) for the panel to find him guilty.

    "Sufficient evidence," however, is a far cry from any kind of admission that there was no evidence to rebut the prosecution's evidence. It may be news to the judge that trials are conducted for defendants who have pleaded "not guilty," not for those who admit guilt. Was the judge considering what kind of trial he was suggesting? A trial where the determination of guilt or innocence by a panel of seven officers was literally meaningless?

    Let's close by examining the law on whether Lt. Watada can be forced to endure a second trial despite the double jeopardy doctrine. The latest case on the subject, US v. Eliot, 463 F.3d 858, 864 (9th Cir. 2006), states: "When, as here, a mistrial is ordered over a defendant's objection, retrial is permitted only if there was a "manifest necessity" for a mistrial (a case-by-case determination with a "high" burden). Other factors to look at are whether the trial judge (1) heard the opinions of the parties about the propriety of the mistrial, (2) considered the alternatives to a mistrial and chose the alternative least harmful to a defendant's rights, (3) acted deliberately instead of abruptly, and (4) properly determined that the defendant would benefit from the declaration of mistrial."

    A case to look at for guidance is United States v. Rivera, 384 F.3d 49, 56 (3rd Cir. 2004) which states: "Critically, a mistrial must not be declared without prudent consideration of reasonable alternatives. Federal Rule of Criminal Procedure 26.3 requires that "[b]efore ordering a mistrial, the court must give each defendant and the government an opportunity to comment on the propriety of the order, to state whether that party consents or objects, and to suggest alternatives. Where a District Court sua sponte declares a mistrial in haste, without carefully considering alternatives available to it, it cannot be said to be acting under a manifest necessity. Any subsequent reprosecution under those circumstances is barred by the Double Jeopardy Clause."

    When you comment that you can't "unring a bell," and then ask the defendant to agree to withdraw a stipulation already seen by the finders of fact for an entire day, you have "consideration" about as "prudent" as a car crash.

    Eric Seitz has stated, "My professional opinion is that Lt. Watada cannot be tried again because of the effect of double jeopardy," and will file a motion to dismiss the entire case. The Seattle Post-Intelligencer has reported that John Junker, a University of Washington law professor, agrees that the granting of mistrial over the defendant's objection has opened the door to such a defense.

    "The notion is that you can't just stop in the middle and say, 'I don't like the way it's going' and start over," Junker said. "If the defendant objected, it does raise the possibility" of double jeopardy, Junker said. "That would happen in a civilian court, and I presume in a military court. That doctrine comes from the Constitution."

    Marjorie Cohn, a professor at the Thomas Jefferson School of Law and a proposed expert witness for the defense, opines: "When the Army judge declared a mistrial over defense objection in 1st Lt. Ehren Watada's court-martial, he probably didn't realize jeopardy attached. Although he faces the possibility of a dishonorable discharge, the judge's grant of a mistrial precludes retrial on the same criminal charges."

    Prominent Honolulu defense attorney Howard Luke states, "Was there manifest necessity? That's up to the court to decide...From what I understand, I think not. The case could have been continued."

    I wouldn't bet against these four authorities. Any fair-minded review of this case will reveal that the defense was doing far better than anyone had expected; that Lt. Watada had protected his rights at every turn; and that the judge was scared of letting this case go to any factfinder who had any chance of being fully informed of Lt. Watada's belief that the war in Iraq is illegal. 

______________________________________________________   

Feb 6 - Opening Statements and Prosecution Blunders

By Bill Simpich and Scott Galindez

t r u t h o u t | Report     Wednesday 07 February 2007

 

Ft. Lewis, Washington - On the second day of the court-martial of First Lt. Ehren Watada, it seemed at times that the prosecution witnesses were really defense witnesses.

 

The day began with opening statements. The prosecution laid out the following charges:

   

Charge I: Violation of the UCMJ, Article 87    

The specification: In that 1st Lt. Ehren Watada, U.S. Army, did, at or near Fort Lewis, Wash., on or about 22 June 2006, through design miss the movement of Flight Number [redacted], with which he was required in the course of duty to move. Charge II: Violation of the UCMJ, Article 133     Specification 1: In that 1st Lt. Ehren Watada, U.S. Army, did, at or near Tacoma, Wash., on or about 7 June 2006, take part in a public press conference in which he communicated the following disgraceful statement, to wit: "It is my conclusion as an officer of the Armed Forces that the war in Iraq is not only morally wrong but a horrible breach of American law.... As the order to take part in an illegal act is ultimately unlawful as well, I must as an officer of honor and integrity refuse that order.... The wholesale slaughter and mistreatment of Iraqis is not only a terrible and moral injustice, but it's a contradiction to the Army's own law of land warfare. My participation would make me party to war crimes," or words to that effect, his statement bringing dishonor to the Armed Forces. The additional specification: In that 1st Lt. Ehren Watada, U.S. Army, did, at or near Seattle, Wash., on or about 12 August 2006, take part in the Veterans for Peace National Convention in which he communicated the following disgraceful statement, to wit: "Today, I speak with you about a radical idea.... That to stop an illegal and unjust war, the soldiers can choose to stop fighting it.... Now it is not an easy task for the soldier. For he or she must be aware that they are being used for ill gain.... They must know that resisting an authoritarian government at home is equally important to fighting a foreign aggressor on the battlefield.... This administration used us for rampant violations of time-tested laws banning torture and degradation of prisoners of war. Though the American soldier wants to do right, the illegitimacy of the occupation itself, the policies of this administration, and the rules of engagement of desperate field commanders will ultimately force them to be party to war crimes.... If sodiers realized this war is contrary to what the Constitution extols - if they stood up and threw their weapons down - no President could ever again initiate a war of choice. When we say, 'Against all enemies foreign and domestic,' what if our elected leaders became the enemy?... To support the troops who resist, you must make your voices heard. If they see thousands supporting me, they will know.... We must show open-minded soldiers a choice and we must give them courage to act.... I tell this to you because you must know that to stop this war, for the soldiers to stop fighting it, they must have the unconditional support of the people.... Convince them that no matter how long they sit in prison, no matter how long this country takes to right itself, their families will have a roof over their heads, food in their stomachs, opportunities, and education.... Now, I'm not a hero. I am a leader of men who said enough is enough.... Never again will we allow those who threaten our way of life to reign free -! be they terrorists or elected officials. The time to fight back is now. The time to stand up and be counted is today," or words to that effect, his statement bringing dishonor to the Armed Forces.    

 

The evidence for the additional specification was a Truthout video of Ehren Watada's speech at the Veterans for Peace Convention. Part 1. Part 2.     The video played on the big screen in the courtroom and may have helped the defense as much as it helped the prosecution. The judge had already ruled out most of the defenses that Watada's counsel had intended to raise, including the Nuremburg defense, a defense that Watada raised in that speech.    

 

During his opening statement, defense attorney Eric Seitz emphasized from the beginning: The only real question is why? What was Lt. Watada's intent? The questions that flow from that are: How did he comport himself? Did he dishonor himself, the officer corps, or the Army itself? He enlisted in 2003 against his family's wishes and took an oath to defend the Constitution that motivates him to this day.

 

He received positive evaluations, and arrived in Fort Lewis in June 2005 looking forward to a promising military career. But two issues soon drew his attention. One was the utter falsity of the threat that Iraq contained weapons of mass destruction, which was the justification for initiating the invasion of Iraq. The other was the falsity of the claim that the Iraqi leadership was tied up with the events of 9/11. The underlying facts documenting this falsity are accepted by most reasonable people as true and correct. Lt. Watada became very upset and disillusioned with what he was going to be called upon to do, and felt that action was necessary.
 

In early 2006, he resolved to do something to prevent putting himself and his troops at risk. He contacted his superior, Lt. Col. Bruce Antonia, explained his dilemma, and asked to be allowed to resign. He wrote a letter and they had a discussion. Antonia did not take Lt. Watada's letter seriously.

Lt. Watada offered to go to Afghanistan or anywhere else, but was refused. His offer to resign had been refused. He had ordered to go to the Public Affairs office, where he was informed in a talk that he should make no statements on duty, in uniform, or on the base - which he complied with. The June 22 deployment date was coming near, and Lt. Watada determined that he had to bring the matter to a head before the unit headed to Iraq. On June 7, the lieutenant held a Tacoma press conference and went public with his dilemma.    

 

On August 12, Lt. Watada addressed the Veterans for Peace Convention in Seattle. The defense asked the panel to place the speech in context, as it asked the listeners to examine their conscience and decide for themselves what to do. Eric Seitz closed by reminding the panel that the prosecution had stacked the case originally with a request for as much as eight years of potential punishment (which drew an objection sustained by the judge), and that the lieutenant did not shirk his duties but rather upheld his oath to defend the Constitution. The prosecution presented three witnesses today; Lt. Colonel Bruce Antonia, Professor Richard Swain and Lt. Colonel William James.     Antonia testified that Lt. Watada was a high quality officer and very smart, an asset to the unit. He also testified that he has never questioned his integrity. When asked why he thought Watada could be an asset to the unit while expressing his moral objections to the war, the Lt. Colonel said that because Watada was a high caliber officer, he felt he could overcome his moral questions and perform in the field.    

 

The strongest argument Antonia made for the prosecution was that he didn't want a distraction for the other troops deploying. While he said he didn't recall ordering Watada to not go public, he told him he wanted to avoid a media circus. During cross-examination Antonia testified that Lt. Watada's statements didn't decrease the morale or the effectiveness of the unit.

 

Following the testimony of Dr. Swain, the prosecutor, Capt. Van Sweringen, was overheard to have said to one of his aides in the courtroom that "Dr. Swain was a disaster."    

 

Professor Richard Swain, the military ethics expert, was barred by the judge from making the argument that Lt. Watada's public statements were inconsistent with his oath to defend the Constitution. The net result was that his testimony reinforced Antonia's statement that officers had no obligation to follow orders they think are illegal. Swain added that "if they make that determination, they have to be right. If they're not right, they have to expect to be held accountable."    

 

The prosecution rested its case at 3:40 p.m. Pacific.    

 

Eric Seitz released the following statement after the day 2 proceedings:
The prosecution presented three witnesses today; Lt. Colonel Bruce Antonia, Professor Richard Swain and Lt. Colonel William James. Through our questions, the witnesses continued to describe a young officer who made every possible attempt to avoid conflict in a respectful, orderly manner in an effort to resolve a dispute between his own conscience and the orders that he was given to deploy to Iraq. The witnesses never delved into the reasons why Lt. Watada refused deployment to Iraq, but all of them conceded that Lt. Watada was a "quality officer" and a person of integrity. Tomorrow, we expect to two witnesses to testify - Lt. Watada and Captain Scott Hulin, who returned from Iraq in order to testify as a character witness. These are the only two witnesses this court has allowed us to call. The judge has continued to deny us the opportunity to bring any expert witnesses in order to fully explain Lt. Watada's motivations and reasons for refusing deployment to Iraq. Based upon the first two days of trial, we are continuing to be optimistic about the outcome, and our hope is that Lt. Watada will be treated with respect for the position he's taken and the views that he's articulated and that any disposition will take into account that he is taking a position of conscience. We expect the findings portion of the case to conclude tomorrow, and any punishment proceedings will probably conclude on Thursday.
    --------
     Special Coverage of the Watada Court-Martial Provided by Bill Simpich

and Scott Galindez of  t r u t h o u t  

Feb 5 - Watada Lawyer Rebukes Judge

    By Hal Bernton
    The Seattle Times

    Tuesday 06 February 2007

    Fort Lewis - First Lt. Ehren Watada's court-martial verdict could hinge on the Fort Lewis officer's own testimony when he takes the stand later this week to testify about why he refused to go to war.

    Defense counsels hope Watada can gain the respect of the seven-officer military panel sworn in Monday and persuade the officers to reject an extended prison sentence of up to four years.

    "The critical thing is that he be treated as someone who is principled," Eric Seitz, Watada's civilian defense counsel, said late Monday at a news conference. "Someone who is principled and has taken a stand. Not someone who should be treated as a criminal."

    Monday, Seitz was a combative, sometimes defiant, presence in the courtroom as he rebuked the military judge, Lt. Col. John Head, for his rulings to restrict the scope of the trial.

    "I think it is an atrocity that our witnesses are being handled in this manner," Seitz said after Head ruled that most of the proposed defense witnesses were irrelevant to the issues at hand.

    In addition to Watada, Seitz said he plans to call only one other defense witness, a Fort Lewis officer who serves in Iraq with the defendant's brigade.

    Seitz is a veteran attorney whose defense of war resisters dates back to the Vietnam era, and he has joined with Watada in numerous interviews to help bring national - and international - attention to the first court-martial of an Army officer who refused to go to Iraq.

    Watada has drawn strong support from anti-war activists, who marked his trial's opening day with rallies outside Fort Lewis that included an appearance by actor Sean Penn. Also Monday, activists released a letter of support from Desmond Tutu, the South African archbishop and winner of the Nobel Peace Prize.

    Head has sought to keep the political backlash against the war from filtering into his courtroom. He refused to allow testimony from prominent critics of the Bush administration whom Seitz had sought to testify on Watada's behalf.

    Head also issued an order restricting buttons or other shows of support for Watada from being worn inside the courtroom, according to Seitz. And at one point during the morning session, he called for defense counsel Seitz to "leave the dramatics at the door."

    The trial is expected to last less than a week; the facts of the case are not in dispute. Watada has stipulated that he missed his brigade's deployment to Iraq in June, an offense that could bring up to two years in prison.

    In court Monday, Watada also agreed to the accuracy of his statements attacking the war as illegal, the Army for committing war crimes, and the Bush administration for deceit. The Army contends these statements represent officer misconduct that could result in an additional two years in prison, while the defense counsel says his remarks represent protected free speech.

    There is no minimum sentence, so if Watada is found guilty the officers panel could still opt to have him serve little or even no time.

    Defense attorneys said that they had offered in pretrial negotiations to accept a six-month prison sentence to settle the charges but that prosecutors declined in order to seek a longer term.

    The seven officers who will determine the sentence were selected from an original pool of 10 officers. Their ranks range from captain to colonel and include two women.

    All the officers are from Fort Lewis and had read or talked about the case with other soldiers, and some stated in court that they had served in Iraq.

    All the officers on the panel declared they would listen to the case with an open mind.

    Some seemed skeptical of any officer who would refuse to serve with his wartime unit, and they also said there were limits to public dissent in the military.

    Capt. Nicole White, however, said she was "impressed," when she first heard about Watada's decision. "Basically, it was like he was standing up for what he believes in."

    The judge appeared startled by the response.

    "Another word for 'impressed' would be 'surprised'?" Head said.

    "Yes, sir," White replied.

    How the Case Will Be Decided

    How does a court-martial work? A military judge presides and rules on what evidence may be submitted. A panel of seven officers will decide 1st Lt. Ehren Watada's guilt or innocence and determine what - if any - punishment he should receive. Under the Uniform Code of Military Justice, the charges of missing a troop movement and actions unbecoming an officer could bring a maximum of four years.

    Who represents Watada? A civilian attorney, Eric Seitz, and a military defense counsel, Mark Kim.

    What is the review process? The case automatically will be sent to the Fort Lewis commander and an Army Court of Review. Defense counsel can then petition for the case to be taken up by the Army Court of Appeals, and then seek further review in federal courts.