The ruling by the military judge, Lt. Col. John Head, does not mean that Lt. Watada is off the hook. After moving for the mistrial, the prosecution asked for a new trial and the judge tentatively scheduled a one for mid-March. But it does mean that a new trial could offer Watada's defense team more flexibility in arguing that the officer had a legitimate reason for refusing to fight in Iraq.
[. . .]
Under questioning by the judge, it became evident that the officer was not of the belief that he had signed away his right to defend himself.
"I'm not seeing we have a meeting of the minds, here," the judge finally said. "And if there is not a meeting of the minds, there's not a contract. Tell me where I'm missing something?"
The Army prosecutors made a last-ditch attempt to suggest that they were not arguing that the agreement represented an admission of guilt by Watada. But Head wasn't buying it. The judge told the courtroom that, because there was now a debate about the agreement's meaning, the prosecutors would have to move to reopen their case -- which they had finished Tuesday. That would have forced the prosecution to proceed in front of a jury that had been made aware of concerns about the meaning of the pretrial agreement.
That's when the request for the mistrial was made, and accepted.
The above is from John Nichols' "Mistrial Declared in Lt. Watada Court Martial" (The Notion, The Nation). We're going to do another "Walking Through Watada" entry. And Marcia notes Scott Galindez and Geoffrey Millard's "Watada Court-Martial Ends in Mistrial" (Truthout):
In a stunning defeat for military prosecutors, Lt. Col. John Head, the military judge presiding over Watada's court-martial, said he had no choice but to declare a mistrial because military prosecutors and Watada's defense attorney could not reach an agreement regarding the characterization of a stipulation agreement Watada signed before the start of his court-martial. The judge characterized the stipulation agreement as an admission of guilt by Watada for "missing movement" and making statements against the Iraq war.
Eric Seitz, Watada's attorney, said the stipulation Watada signed, however, was by no means an admission of guilt by his client. Rather, it was a statement of fact that his client believed the Iraq war was illegal, and that he refused to deploy to the region with his unit because of his beliefs. Lt. Col. Head said he wanted to question Watada regarding the agreement to gain a better understanding of what Watada's state of mind was when he signed it, but Seitz would not allow the judge to question his client unless he knew the questions in advance. Head said if he could not question Watada to ensure the accuracy of the document he signed prior to the start of the court-martial, he would have to throw out the agreement, meaning the charges against Watada would become null and void.
Seitz then asked for time to speak to his client. After a 30 minute recess Seitz informed the court that he had advised his client to not answer the judge's questions, but Lt. Watada had agreed to answer against his legal advice.
Issues surrounding the stipulation agreement came up when military prosecutors asked the judge to provide the military panel (similar to a civilian jury) deciding Watada's fate with additional instructions before they returned a verdict.
What it means, the call of a mistrial, is being debated. Brandon notes Eli Sanders' "A Mistrial for Lieut. Watada" (Time magazine):
The highly anticipated court-martial of Army Lieut. Ehren Watada for refusing to deploy to Iraq ended in a mistrial on Wednesday, a surprising development that left military prosecutors clearly frustrated, observers stunned and defense attorneys claiming that the military had blown its only chance at a conviction.
"Our hope is that at this point the Army will realize that this case is a hopeless mess," said Eric Seitz, Watada's attorney, speaking at a press conference shortly after the mistrial was declared.
[. . .]
Stammering at points in his arguments with the judge and looking extremely frustrated, Army prosecutor Capt Scott Van Sweringen asked for the mistrial after Judge Head, having personally questioned Watada about the stipulation, ruled that he was going to reject the agreement and tell the jurors that is should be disregarded. The judge himself seemed to urge a mistrial request at that point, saying of his direction to the jurors: "How do you un-ring that bell?"
A new trial date was set for March 19, and Piek said the unusual turn of events was proof that the Army "steadfastly protects the rights of the accused."
But it seemed highly unlikely a new trial would actually begin on March 19. Seitz, Watada's lawyer, said there would be scheduling conflicts and that in any case he would file an immediate motion to dismiss the case whenever it was finally reconvened. "It is my opinion that Lieut. Watada cannot be tried again because of the effect of double jeopardy," he said, contending that because it was prosecutors who asked for the mistrial, and because the judge granted the mistrial over the opposition of defense lawyers, the prosecutors could not subsequently retry Watada.
Addressing the issue of double jeopardy is Mike Barber's "Mistrial could be end of Watada case" (Seattle Post-Intelligencer):
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.
Ehren Watada's side and the prosecution were in agreement, it was Judge Toilet that had an issue. Joan notes The Honolulu Advertiser's "New trial scheduled in Lt. Watada's court-martial:"
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.
Some are less doubtful that the mistrial will result in the case being over. From
Sam Howe Verhovek's "Mistrial declared for war objector" (Los Angeles Times):
Though Watada will probably face another trial, the judge's ruling amounted to a temporary moral victory for the lieutenant in a case that many legal observers had considered a virtual slam-dunk for the Army.
Watada's lawyer, Eric Seitz, said Watada's intent in refusing deployment orders was at the heart of his defense, and that it was ridiculous for prosecutors to suggest that he had no right to explain why he did what he did.
"The government has created a major mess here, and that's clearly why they had to move for a mistrial," Seitz said. "Any time the government tries to suppress a defendant's attempt to explain his actions, that's not a good thing for our legal system."
Antiwar forces wasted no time in declaring the mistrial a victory, with banners saying as much at a rally just outside the base here, several miles south of Tacoma.
"The legal mess we saw here today reflects the major mess the Bush administration has made with the war in Iraq," said Ann Wright, a retired Army colonel and diplomat who resigned a State Department post in March 2003 in protest of the war, which began that month.
Melanthia Mitchell (AP) has some stronger accounts and some weaker ones depending upon which version you're reading; however, ABC's version contains an AP photo and we'll note the caption to that: "Margaret Prescod, with the Global Women's Strike, left, and Liz Rivera Goldstein, campaign coordinator with Friends and Families of Lt. Watada, listen to interviews after a news conference in DuPont, Wash. concerning the mistrial ruling of 1st Lt. Ehren Watada's court-martial at Fort Lewis, on Wednesday, Feb. 7, 2007. Watada announced last June that he would refuse to go to Iraq with his unit, the 3rd Brigade, 2nd Infantry Division. (AP Photo/John Froschauer)" Prescod hosts Sojourner Truth on KPFK.
On the stipulation and what might happen if another court-martial was held, we'll note
Daisuke Wakabayashi's "War objector's court-martial ends in mistrial" (Reuters):
In the stipulation, Watada said he did not board the plane with the rest of his unit to Iraq and admitted to making public statements criticizing the war and accusing U.S. President George W. Bush's administration of deceiving the American people to enter into a war of aggression.
Watada does not dispute the facts, but said it was not an admission of guilt because it does not take into account the intent behind his actions.
Asked by the judge if he thought it was his duty to board the aircraft to Iraq, Watada said no. "I felt the order was illegal," he said in the courtroom.
In a new trial, the defense will be allowed to again file a motion to argue the legality of the war. A new judge may preside over the case and all the proceedings before and during the first trial will be wiped clean.
In the stipulation, Watada said he did not board the plane with the rest of his unit to Iraq and admitted to making public statements criticizing the war and accusing U.S. President George W. Bush's administration of deceiving the American people to enter into a war of aggression.
Watada does not dispute the facts, but said it was not an admission of guilt because it does not take into account the intent behind his actions.
Asked by the judge if he thought it was his duty to board the aircraft to Iraq, Watada said no. "I felt the order was illegal," he said in the courtroom.
In a new trial, the defense will be allowed to again file a motion to argue the legality of the war. A new judge may preside over the case and all the proceedings before and during the first trial will be wiped clean.
In the stipulation, Watada said he did not board the plane with the rest of his unit to Iraq and admitted to making public statements criticizing the war and accusing U.S. President George W. Bush's administration of deceiving the American people to enter into a war of aggression.
Watada does not dispute the facts, but said it was not an admission of guilt because it does not take into account the intent behind his actions.
Asked by the judge if he thought it was his duty to board the aircraft to Iraq, Watada said no. "I felt the order was illegal," he said in the courtroom.
In a new trial, the defense will be allowed to again file a motion to argue the legality of the war. A new judge may preside over the case and all the proceedings before and during the first trial will be wiped clean.
Aaron Glantz spoke with Sandra Lupien on yesterday's The KPFA Evening News and noted that Judge Toilet was "essentially throwing out the agreement that the prosecution and the defense made together on the eve of the trial." As a result, according to Glantz,"Now it looks like we'll all be back here in Fort Lewis sometime in the spring." Lupien asked what this meant in terms of the charges and Glantz stated, "We're going to go back to the original charges. Some of the charges were dropped as a result of the agreement . . . Those charges are now back on the table." Glantz also noted that: "It seemed at the beginning that it would to be a slam dunk for the prosecutors but here we are, three days into the trial, and it's ended in a mistrial." This topic is expected to be addressed this morning on the news breaks of KPFA's The Morning Show (7:00 to 9:00 am PST). Thanks to Zach for noting (and transcribing!) Lupien and Glantz above.
The court-martial of Ehren Watada, an Army lieutenant who refused to deploy to Iraq, ended in a mistrial Wednesday (February 7) after a judge ruled that the soldier misunderstood a document he signed admitting to some of the charges against him.
(See Watada talk about the charges against him and why he refuses to go to Iraq in this video interview conducted before the mistrial.)
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