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Mistrial could be end of Watada case
Double-jeopardy prohibition might thwart retrial

Seattle Post-Intelligencer | February 8, 2007
Mike Barber

FORT LEWIS -- The Army court-martial of 1st Lt. Ehren Watada, which ended in a mistrial Wednesday, may have stranger turns ahead: Prohibitions against double jeopardy may keep prosecutors from having a second trial, his lawyer and another legal expert say.

The opposition of Watada and his defense team to the mistrial, declared by the military judge and eventually endorsed by prosecutors after their case fell apart, opens the door for a double-jeopardy defense, said John Junker, a University of Washington law professor.

Double jeopardy, which forbids a person from being tried twice for the same crime, does not apply only after a verdict is rendered, but can apply after a jury is empaneled and witnesses have been called.

"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."

Watada's case has drawn national attention and galvanized the anti-war movement. He is the first U.S. military officer publicly to refuse deployment to Iraq by stating the war is illegal and that he feels duty-bound to refuse unlawful orders.

Watada's trial was in its last day, and he was preparing to take the stand when the military judge, Lt. Col. John Head, raised the issue that led to the mistrial. That issue was a stipulation that Watada had signed and would be given to the jury as part of its instructions.

Head set a tentative retrial date in mid-March, though that date could be moved back.

Prosecutors had not decided last night whether they will retry Watada. Eric Seitz, Watada's civilian attorney, intends to fight to block the prosecutors from trying the lieutenant a second time.

Watada's supporters -- among the lucky few who gained access to the small military courtroom -- were excited at the dramatic turn of events.

"I continue to remain very hopeful my son will be exonerated," said Carolyn Ho, Watada's mother.

Ann Wright, a retired Army colonel and former diplomat who quit her post disputing the invasion of Iraq, said "the Army's case is a mess, and it reflects the mess the (Bush) administration is in also in Iraq."

Army officials said they were not disappointed in the outcome as Head's decision demonstrated the fairness of the military justice system and that the judge was looking out for Watada's interests.

Reading a prepared statement, Fort Lewis spokesman Joe Piek said: "The military judge ensures fairness in the proceedings, especially to the accused. In this case, the judge was concerned that the stipulation amounted to a confession by Lt. Watada to an offense to which he intended to plead not guilty."

Seitz, however, opposed the mistrial, saying Head "abused his discretion."

At the same time, said Seitz, who has been trying military cases since the Vietnam War, he had never seen a turn like this.

Seitz said Watada, who was ready to take the stand but never did, "was not happy that he does not get to get this over with," but also knows that the developments could lead to the end of the case against him.

The dramatic turn of events hinged on a stipulation of fact that Watada signed in a plea agreement more than a week ago. Under the plea deal, prosecutors dropped two charges of conduct unbecoming an officer against Watada. He was being tried this week on two other charges of conduct unbecoming an officer and one count of missing movement when his Stryker Brigade deployed to Iraq in June.

Head questioned Watada while the jury was out of the courtroom, which Seitz objected to but allowed, and legal experts such as Junker said they would consider that questioning "very unusual" in a civilian trial.

Head concluded that he could not accept Watada's statement. Although Watada had admitted to failing to deploy with his unit, it was not the same as admitting guilt, which prosecutors considered it to be, Head said.

"What did you understand that (the stipulation-of-fact) to mean? What does that mean to you?" the judge asked Watada after sparring with Seitz over his intention to question the lieutenant.

Of his refusal to get on the plane, Watada said: "To me it means to (not) participate in a war that I believed to be illegal."

Head asked if Watada believed the statement to be "confessional" to the charge of missing movement.

"No, I did not," Watada said.

If the stipulation couldn't be accepted, then the two charges that were dropped would be renewed. The plea agreement would have to be rejected. So the judge called a mistrial.

"We did not want a mistrial," Seitz said outside the courtroom. He said he believes that the prohibition against double jeopardy ought to keep prosecutors from trying Watada a second time. If they do, he will take the case to an appeals court, he said.

Since the start, Seitz was frustrated at seeing his defense, which included calling expert witnesses to testify about the legality of the war and the parameters of Watada's free speech rights, constricted to keep from putting the war on trial. Head has said he wanted the focus on the legality of Watada's actions, not on the legality of the war.

Yet Seitz said after the court-martial ended in mistrial that Watada's intentions are a significant part of his defense.

"There is no way around talking about why he didn't get on that plane, and that is the government's continuing dilemma in this case," Seitz said.

Had he been tried and convicted, Watada faced a maximum of four years in prison and dismissal from the service.

But for now, he continues to be an active-duty soldier, reporting for work every day at Fort Lewis.

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