Mistrial could be end of Watada case (Seattle P-I)

[Eugene]

Thursday, February 8, 2007

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

By MIKE BARBER
P-I REPORTER

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.

-snip-

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.

-snip-

Full article: http://seattlepi.nwsource.com/local/302885_watada08.asp

[wakeme2008]

1. Normally a mistrilal is not double jeopardy...

But this has to go by military rules... So I do not know :shrug:

[Karenina]

8. Lots of info re: courts martial on this thread:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x151882

[uppityperson]

2. Military trials are different regarding double jeopardy

"Junker said. "That would happen in a civilian court, and I presume in a military court. That doctrine comes from the Constitution.""

Also different in that you have to prove yourself innocent, not have them prove you guilty. You sign away many constitutional rights when you join the military. Make sure you point this out to kids thinking of joining. They need toknow this.

[BayCityProgressive]

3. hopefully he is in the clear.

[flamin lib]

4. Watada's only defense is that the war is illegal and therefore the

order to deploy there is illegal. Soldiers are not required to follow illegal orders and in fact are held accountable for following illegal orders as if they willingly committed a crime without the orders being given.

Unfortunately for Watada, the only time an illegal order has been cited in a military case it was to punish the defendant for following an order, not disobeying one.

Should the case be re-tried, I can't see him winning unless the defense can prove the war is illegal and Bush/Cheney et al are guilty of war crimes. That just ain't gonna' happen.

[uppityperson]

6. I don't see him winning, but just standing up for what he thinks is right.

I don't see how he can prove the war is illegal, but he needs to do what he needs to do and will take the outcome for what it is. Brave man.

[Warpy]

5. Either they had to hold a totally rigged trial

or they risked opening a huge can of worms about what is an illegal order, and if an illegal order is disobeyed, what happens to the men who issued it.

If Watada had been found innocent, likely in a trial that wasn't totally rigged, the shit might have been scooped up downhill and thrown right into this administration's lap.

They really, really don't want to do this one. My guess is there will be a very attractive plea bargain offer.

[Earth_First]

7. I agree

I really feel that Watada has some pretty solid legs to stand on in his defense.

[Bake]

9. If the war itself is illegal

Then Watada's position is that every order that flows from that must be illegal also. He was ordered to report for duty/deployment, correct? That, in itself, is a lawful order, unless you ascribe to the position that every order that is at all related to the illegal war is therefore an illegal order.

I don't think any court-martial is going to go for that position. The end result would be total chaos. This is not like an officer giving someone an order to, say, burn a civilian village, or shoot an unarmed civilian. He was ordered to report for deployment.

It's an interesting argument, from a legal perspective, but a bit of a stretch.

Bake