Implications of the Mistrial

When he declared a mistrial on February 7, 2007, Lt. Col. John Head brought to a close the 1^st Court Martial of U.S. vs. First Lt. Ehren K. Watada.  Judge Head also announced a new trial date – March 19^th – and in doing so, exceeded his authority, because a trial date cannot be set until the charges against Lt. Watada are again referred for court martial by the Ft. Lewis base commander and convenng authority, Lt. General James Dubik.  

If General Dubik refers the charges a second time, Lt. Watada’s defense counsel will immediately file a motion to dismiss all charges on the basis of Double Jeopardy.  The motion will be reviewed by a judicial panel at Ft. Lewis, and if denied, the Defense will immediately move to have the motion considered at the appellate level. 

Should the Defense lose on all motions to dismiss, the case would proceed as a normal court martial with a tentative trial date in July, and the Prosecution will proceed with the original 5 charges: 1 count Missing Movement, 4 counts Conduct Unbecoming an Officer.

Lacking the pre-trial agreement in which the Defense earlier stipulated to certain facts of the case in exchange for the dismissal of 2 charges of Conduct Unbecoming, the Prosecution will again have to issue and fight to subpoena reporters, videographers, and peace activists to authenticate Lt. Watada’s statements.  Authentication under oath is required under the rules of evidence.  

However, assuming that the Defense motion to dismiss all charges based on Double Jeopardy is granted, all of the current charges against Lt. Watada will be permanently dropped.  Lt. Watada’s superiors would have no reason not to promote him to Captain , based on his recent selection, and because Lt. Watada’s service obligation ended in December, 2006, he will be eligible to resign and receive an honorable discharge from the army. 

What is Double Jeopardy?

Double Jeopardy is a constitutional safeguard of civil liberties to insure that government prosecutors and judges are not allowed to repeatedly try an accused when a trial is not going their way.   Two conditions must be met for a finding of double jeopardy:  

1. The defense did not motion for the mistrial.  In Lt. Watada’s case, the motion for a mistrial was made by the Prosecution, at the urging of the judge and despite repeated objections by the Defense.

2.  The mistrial was caused by prosecutorial or judicial misconduct.  There is substantial case law in the Defense’s favor to show that judicial misconduct or “abuse of discretion” did, in fact, occur.

If the government pursues a second trial, they may argue that Judge Head did not abuse his judicial discretion.  However, court transcripts will show that on more than one occasion the Prosecution agreed with the Defense in opposing the issues raised by Judge Head with respect to the Stipulation of Facts, which were part of the Pre-Trial Agreement. 

How the Mistrial Unfolded 

Before urging the prosecution to move for the mistrial, the judge repeatedly stated that the Accused, the Prosecution, and the Defense “did not understand” and were “not in agreement” regarding the Stipulation of Facts.  Yet, in a rare moment of agreement, both the Prosecutor and the Defense Counsel argued otherwise.  

The Judge would not be convinced and promptly threw out the Stipulation of Facts, the evidential cornerstone of the Prosecution’s case.  Since the Prosecution had rested its case the day earlier and the jury, or Panel, had already seen the “stipulated” evidence as fact, the case was headed for failure on the basis of extreme bias.  

This occurred after the Prosecution presented an arguably weak case in which all three of their witnesses, though personally bothered by Lt. Watada’s public statements, admitted that his statements did not negatively impact his unit’s morale or mission.  The Defense raised objections to the witnesses’ statements regarding their personal feelings with respect to Lt.Watada’s actions and stated that those feelings should not be considered by the Panel to represent the consensus of all of the personnel in Lt. Watada’s unit. 

The Defense offered to have all 4,000 members of 3^rd Brigade (Stryker) brought back from Iraq if this court were attempting allow the personal feelings of witnesses to be considered by the Panel.  The judge scoffed at this notion and instead tried to elicit hearsay evidence from one of the witnesses Lt. Col. Bruce Antonia.  Judge Head immediately stopped his inappropriate questioning when the defense objected, and Lt. Col. Antonia himself realized his answer would be considered hearsay. 

All three prosecution witnesses stated that any officer had the duty to refuse an order he believed to be illegal and that Lt. Watada had indeed used all appropriate channels to do so.  Even when he spoke publicly, Lt. Watada followed the instructions laid out for him.  Lt. Col. William James was also forced to reconsider his statement that Lt. Watada had destroyed the cohesive bond between himself and his men when he recalled that the junior officer had been forcibly transferred by his superiors to a different internal unit several weeks before he spoke out publicly.  

Lt. Col. Antonia, Lt. Watada’s former commander also became confused, when defense counsel Eric Seitz asked why Col Antonia wanted the lieutenant to deploy with his unit on June 22^nd, when he considered Watada to be unfit as an officer based on Watada’s June 7^th statements.  The commanding officer recanted and said he had faith in Lt. Watada’s intestinal fortitude to “dig himself out of the huge hole” he had created for himself.  Both Lt. Colonels admitted that Lt. Watada was known as a “quality officer” prior to his public statements.  Both senior officers seemed angry because Lt. Watada’s personal feelings did not agree with theirs. 

Heart of the Mistrial 

The Stipulation of Facts is at the heart of the mistrial.  This stipulation was part of a pre-trial agreement and was reviewed by both parties and signed by Lt. Watada more than a week before the court martial began.  Under this agreement, the Accused admitted that several obvious facts of the case were indeed true.  This saved the Prosecution from having to authenticate these facts by subpoenaing reporters, videographers, and peace activists. 

In exchange, the government was willing to drop 2 of the Conduct Unbecoming charges.  This agreement and its language were reviewed and signed one week before the trial by the Prosecution, the Staff Judge Advocate (the legal advisor to Lt. Gen Dubik), Lt. Gen Dubik, the Defense, Judge Head, and Lt. Watada.  

Judge Head had already questioned Lt. Watada thoroughly about his understanding of the Stipulation of Facts when the court martial opened and before the Panel was sworn in,   Using a pre-established set of questions, he made certain that Lt. Watada realized the stipulation of facts fulfilled all the elements of the Missing Movement charge and “could” lead to a guilty verdict.  When this inquisition ended, Judge Head declared that all parties to the pre-trial agreement were clear about what it meant.  He made the determination after reading the stipulation, which includes Lt. Watada’s statements that he believed the order to participate in the Iraq War to be illegal.  

According to the judge, an inconsistency arose, after he reviewed the Instruction to the Jury that was presented to him by the Defense at the judge's request.  This was a departure from standard procedure.   Normally, judges do not consider Instructions to the Jury until after the prosecution and defense have both rested their cases.  Without explanation, this judge asked the Prosecution and Defense to submit Instructions to the Jury after only the Prosecution had rested its case.  The Defense complied and asked the judge to instruct the jury to consider the legal defense that was denied throughout the entire trial, i.e., that Lt. Watada’s belief in the illegality of the war -- right or wrong -- is what triggered his refusal to deploy. 

The Prosecution had always argued that this was irrelevant and the Judge consistently  ruled in their favor.  The judge had already denied the Defense’s motion for a Nuremburg evidentiary hearing; and he denied the Defense request for expert witnesses in the field of international and constitutional law.  He even denied them the opportunity for these witnesses to testify during the sentencing phase of Lt. Watada’s trial – a ruling unheard of in any court martial.  

From the very beginning, Judge Head made it clear that for the purposes of this trial, Lt. Watada’s legal defense was irrelevant.  Thus, all parties found it extremely odd to hear the judge assert that Lt. Watada’s belief in the illegality of the war was, in fact, inconsistent with the Stipulation of Facts.  It rendered the Stipulation of Facts – the cornerstone of the Prosecution’s case -- inadmissible as evidence and could force a mistrial.  Furthermore, due to his prior rulings, there was no reason to believe the Judge would even give the Defense instructions to the jury.  

On the third day of the trial, just prior to Lt. Watada taking the stand as the first of only two defense witnesses that were allowed, Judge Head wanted to again question the Accused about his understanding of the Stipulation of Facts.  The Defense objected and stated that the judge had no compelling cause.  When the Judge threatened to declare a mistrial, the Defense relented. 

Lt. Watada was asked again what he understood the stipulation of facts to mean.  The junior officer repeated what he had stated previously.  It was not a confession of guilt but only an admission to several facts of the case.  He said that although the Prosecution had argued and the judge had ruled, he still felt he had a legal defense because he believed he had a duty to refuse an order to deploy to an illegal war.  

The Prosecution stood firm and reiterated that Lt. Watada’s personal beliefs about his legal defense were irrelevant.  Lt. Col. Head countered that Lt. Watada had in essence made a confessional stipulation that he was guilty—even though the officer plead “not guilty” at the start of the trial. 

Both the Prosecution and the Defense argued with the judge that it was not a confessional stipulation but a stipulation of fact and that Lt. Watada has a legal right to plead “not guilty” and bring forward a legal defense, knowing that the defense could be denied.  Judge Head repeatedly stated that in questioning the junior officer regarding his understanding of the stipulation, he had used a set of guidelines for a confessional stipulation.  

The judge read the instructions back to the court room, stating that the stipulation of facts accepted by the accused fulfilled all the elements of Missing Movement and therefore “could” lead to a guilty verdict. 

Yet he contradicted himself with this statement: “could” is not the same as “will.”  Therefore, the stipulation does not equate to a guilty plea.  An accused could confess to all the elements of a charge and still have a legal defense.    

The prosecutors appeared to be at wit’s end in arguing with the Judge.  After consulting with their superiors they could find no way to convince Lt. Col. Head that he was wrong.  At the judge’s urging, the lead attorney Captain Van Swearingen had no choice but to motion for a mistrial.  Lead defense attorney Eric Seitz immediately objected to the motion. The judge noted the objection and granted the mistrial motion without asking if the Defense to offer any solutions.  When he bypass this step, the Judge made an additional mistake “on the record” and compounded his “abuse of discretion.”

SUMMARY

Jeopardy attaches when 1) the jury has been sworn or 2) the first witness has been called.  Both events occurred before the mistrial was declared.  In fact, the Prosecution had already rested.  The Prosecution asked for the mistrial over the Defense objection, and the mistrial itself is the direct result of the abuse of judicial discretion 

Judge Head abused his discretion by 1) asking for jury instructions before all parties had presented their case;  2) questioning the Accused for a second time without compelling cause; 3) nullifying evidence without compelling cause, which led directly to the motion for mistrial; and 4) granting the mistrial without asking the Defense for alternative solutions. 

Furthermore, and as stated at the beginning of this synopsis, Judge Head scheduled a new trial date when there was no court martial to schedule, i.e., the convening authority, General James Dubik, had yet to refer the charges for a new General Court Martial.

Will the U.S. Army risk losing its entire case against Lt. Watada or will they will simply cut their losses and resign the junior officer with a punitive discharge?  On February 23, 2007, the army re-filed the charges against Lt. Watada and the following week announced May 20-21 for pre-trial motions and the week beginning July 16th for a new court martial.  

In response, Lt. Watada's attorney, Eric Seitz, announced that he will file a motion -- likely by April -- to dismiss the charges as a constitutional violation of the protection against double jeopardy.  And he will seek have the motion heard by a a judge other than Col. Head or Col. Debra Boudreau of Ft. Lewis, whom Seitz believes are already biased against the double jeopardy motion.  We will watch to see how the Ft. Lewis judicial panel or a military appeals court decides on the constitutional issue of double jeopardy as it applies to this case.  

Clearly, the judge had no compelling reason to throw out the evidence represented by the Stipulation Agreement.  It baffled everyone, including the Prosecution, that the judge changed his mind about the Stipulation Agreement -- a document for which he himself had provided input and review -- halfway through the court martial and just as Lt Watada  was about to take the stand. 

Following the mistrial, a Ft Lewis spokesperson stated that the judge’s actions were intended to protect the Accused.  If General Dubik refers charges for a new trial, it will be for the judicial panel or appellate court  to determine if this was truly the intent or if the judge abused judicial discretion in an attempt to protect the U.S. Army from an acquittal verdict based on the glaringly weak case presented by the government.