Mistrial: Here's What Really Happened
By Bill Simpich
t r u t h o u t | Report
08 February 2007
Lt. Ehren Watada knew exactly what his case was about - and that scared
was absolutely no reason to stop the Watada trial.
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).
military seized on that claim and complimented the judge for "protecting
the rights of the accused" in granting the mistrial.
what really happened.
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
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.")
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.
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.
stipulation specifically stated that Lt. Watada did not waive any legal
defenses not addressed in the document.
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.
document was prepared by the government. When construing a document,
it is interpreted in favor of the person who did not prepare it.
was signed by all parties over a week ago. This was not a last-minute
judge was satisfied. The stipulation was accepted by the court and
distributed to the panel Tuesday morning.
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.
judge raised concerns about the document on Wednesday morning, moments
before Lt. Watada was set to take the witness stand.
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."
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!
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.
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.
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
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.
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
Watada's attorney, Eric Seitz, said that the stipulation was not an
admission of guilt.
Absolutely no way," he said. "Lt. Watada's a smart guy. He knew exactly
what he was agreeing to." (Los Angeles Times)
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.
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.
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.
the trial commenced, "jeopardy attached." Once jeopardy attaches, a
second trial is generally not possible. This is known as "double jeopardy."
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.
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.
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.
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.
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?
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
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."
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.
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.
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."
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
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
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.
Simpich is an Oakland based Civil Rights attorney. He has defended Truthout
on first amendment issues. He can be reached at email@example.com.