NEW TRIAL SCHEDULED IN LT. WATADA’S COURT-MARTIAL
February 8, 2007
A military judge yesterday unexpectedly declared a mistrial in the court-martial of Army 1st Lt. Ehren Watada, the Honolulu man who gained international attention for refusing to deploy to Iraq and a war that he called illegal.
What happens next will be up to military officials at Fort Lewis, Wash., who must decide whether to bring Watada to trial another time on charges of missing movement and conduct unbecoming an officer.
The judge, Lt. Col. John Head, set March 19 as a tentative new trial date, but it's unlikely to start that early, both sides agreed.
But Watada's attorney, Eric Seitz, said he believes his client can't be tried again because it would amount to double jeopardy.
"We're elated at the turn of events because we think this spells the end of the case," Seitz said.
The 1996 Kalani High School graduate's parents, Bob Watada and Carolyn Ho, spent two days helping their son move his things out of an off-base apartment. He faced up to four years in prison.
"We were getting ready for the worst case," Bob Watada said, "but all the while hoping that things would turn out OK, and hopefully, this is a sign they'll just tell him to go home."
Seitz said at a news conference after the hearing ended that he would try to head off another trial by arguing that it would amount to double jeopardy for his client.
Double jeopardy is a constitutional protection against being tried twice for the same crime. The Honolulu attorney said the protection kicked in for Watada when the panel of officers that was to serve as the jury was sworn in Monday and Army prosecutors called their first witness Tuesday.
The Army's case, he said, "is a hopeless mess."
"I don't believe it ever will be or ever can be resurrected," Seitz said.
A representative of the judge advocate general's office at Fort Lewis disagreed. Lt. Col. Robert Resnick, who was not involved in prosecuting Watada, said he thinks Head ended the case early enough that double jeopardy is not an issue.
Army officials are free to pursue the three charges for which Watada was standing trial plus two others that were dismissed as part of a negotiated agreement before the trial began, Resnick said.
"What happened this week is now a nullity," he said. "Everything will start from scratch. The parties are free to raise any issues they choose to raise."
But Howard Luke, a prominent criminal defense attorney in Honolulu who has handled many military cases, said the government's case is vulnerable.
In some cases, double jeopardy is not an issue if manifest necessity, or the ends of justice, would otherwise be defeated if the person is not allowed to be retried, Luke said.
Another exception would be if the defense requests a mistrial. But in the Watada case, the defense objected.
"Was there manifest necessity? That's up to the court to decide," Luke said. "From what I understand, I think not. The case could have been continued."
An appeals court may have a final say.
"(The actions) do not seem, in my view, to be of the nature forcing a mistrial," Luke said. "Not by a long shot."
READY TO TAKE STAND
Head's decision to call off the court-martial in its third day came as Watada stood ready to take the stand in his own defense.
The 28-year-old artillery officer — charged with one count of missing movement and two counts of conduct unbecoming an officer — hoped to convince a panel of seven fellow Army officers that he had good reasons for missing the flight that took his unit to war and for then speaking out against the Bush administration's policies in Iraq.
Watada claims the war is illegal and he would be party to war crimes if he followed orders to deploy.
Army prosecutors reluctantly requested the mistrial after Head threw out the basis for the Army's case. At issue was a "stipulation of facts" Watada signed earlier this week.
In it, he admitted to missing his June 22 flight to Mosul, Iraq, and to making public statements critical of the war. The stipulation, a negotiated agreement between Watada and prosecutors, meant the two sides did not have to argue over the facts of the case at trial, only whether those facts constituted violations of the Uniform Code of Military Justice.
Head accepted the stipulation Monday but yesterday morning expressed concerns that Watada did not understand exactly what he was agreeing to when he signed the document.
The issue came to the forefront after the parties met with Head to discuss instructions that would be given to the panel when testimony ended.
After the closed-door session, Head said he was worried that an instruction proposed by Seitz — that Watada had a legal defense for missing the plane — was inconsistent with the facts spelled out in the stipulation.
The judge said Watada tacitly confessed to the violation of missing movement by stipulating to the facts involved.
"You have to treat it essentially like a guilty plea because he admits to all the facts surrounding the offense," the judge said.
In a weird bit of courtroom drama, both parties agreed with each other that Head was wrong.
Seitz and Army prosecutor Capt. Scott Van Sweringen said they believed the case could move forward, that Watada's admission to the facts of the case did not prevent him from trying to convince the panel that he had not committed a violation of the Uniform Code of Military Justice.
The judge "manufactured a conflict" after he previously approved the stipulation and it was reviewed line by line on Monday, Seitz said. Seitz said the judge "has been impossible," and "it's been a battle every single day (with) every single ruling."
At one point, an exasperated Van Sweringen told Head he was "at a loss" to make his point any clearer.
But Head said he wasn't satisfied and threw out the stipulation.
"I don't see how I can continue to accept (the stipulation) as we stand here now," the judge said.
Among the facts Watada agreed to was that he didn't get on the bus to go to the airport for deployment, Seitz said, using words like, "I intentionally did not get on the bus" and preserving his opposition to what he felt were illegal orders.
"We and the government told the judge, 'No, there's nothing inconsistent with the stipulation,' " Seitz said later. "It has always been our argument and it was intended to be our argument on appeal that Ehren could defend himself on the basis that the war was unlawful."
Trying to salvage part of his case, Van Sweringen asked Head whether the panel would be able to consider any evidence from the stipulation, including Watada's statements to the media and a Seattle veterans group in which he criticized the war. The statements were the basis for the two charges of conduct unbecoming an officer. Head said no.
Watada is the first officer to be court-martialed for his refusal to serve in the unpopular Iraq war. His actions have been celebrated by anti-war groups and movie stars like Sean Penn and reviled by some military members who feel he had no right to decide the legality of the war.
Elizabeth Jubin Fujiwara, a civil rights attorney and representative of CodePINK Hawai'i Women for Peace, which had maintained a vigil for Watada outside Honolulu's Federal Building during his trial, said the mistrial was "an incredible turn of events."
"Who would have thought it?" she said, adding "it sounds like justice may prevail in this case after all because there's a good chance double jeopardy could be declared."
Rebecca Davis, who has a son in the Army in Iraq, is the co-founder of Military Families Voice of Victory and was a previous critic of Watada's decision, said she is opposed to the way the officer has politicized the Iraq war.
"He came out not as a statement of conscience, but it was politics," said the Maine resident.
Reaction locally was heated, judging from posts on a Web forum at honoluluadvertiser.com. As of 7:59 p.m., 189 posts had been recorded, both attacking Watada's stance or supporting it.
Watada's unit, the 5th Battalion, 20th Infantry Regiment, remains deployed in Iraq.
Seitz said Watada is "kind of bewildered because this happened suddenly and basically we spent a lot of (Tuesday) preparing him to testify and he was kind of tired and stressed out because of that.
"But at this point, he's feeling pretty good because, if we're right and the case is dead, he's going to get out of the Army and he's going to go home soon."
--McClatchy-Tribune News Service and Advertiser military writer William Cole contributed to this report