Watada trial judge erred, risking case, one expert says

But experts disagree about double jeopardy in court-martial

A local attorney with decades of experience in military justice says the judge in Army 1st Lt. Ehren Watada's court-martial overstepped his bounds, possibly jeopardizing the government's case against the war objector.

Attorney Earle Partington says military judge Lt. Col. John Head lacked authority to set a new date, March 19, for trial after declaring a mistrial Wednesday, and it could take at least year before the case can go back to trial.

"I'm surprised he thought he could do that," said Partington, who has represented numerous military service members since the 1960s and served in the military in Vietnam. He said the government might have "to start over from scratch."

Partington, who recently represented a Kaneohe Marine in a court-martial, said the judge in that case noted that he could not just reset a trial after declaring a mistrial.

Watada, a 1996 Kalani High School graduate, is being court-martialed for refusing to deploy to Iraq and for conduct unbecoming an officer. Last year, the Fort Lewis, Wash.-based officer announced his refusal to deploy based on his belief that the war in Iraq was illegal.

Head declared a mistrial after questioning Watada over an agreement he signed before the trial started, stipulating certain facts of the case. The judge said he did not believe Watada fully understood the stipulation of fact. Watada said he never intended to admit he had a duty to go to Iraq with his soldiers, part of the crime of missing troop movement.

While Partington thinks the judge erred, another local attorney with decades of experience in military justice disagrees.

Jay Fidell, a U.S. Coast Guard law specialist, former military judge and investigating officer and a retired lieutenant commander, said it was the judge's call and likely is OK.

"It seems to me the government is motivated to try to conclude this matter," he said. "It's been a high-profile matter, and I think the government is interested in putting it to rest and in achieving a precedent that will not undo good order and discipline."

Watada's lawyer, Eric Seitz, said Wednesday his client cannot be tried again, saying it would have the effect of double jeopardy, or being tried twice for the same charges.

Should the Army go forward with a new trial, Seitz said, he would seek dismissal of the charges with prejudice so they could not be refiled, and would appeal if denied.

Fidell and Partington, who both acknowledged they lacked firsthand knowledge of the details of the proceedings, also disagreed on the issue of double jeopardy.

"I have serious reservations about whether this is a case of double jeopardy," Fidell said.

To have a case of double jeopardy, there must be a case of jeopardy, he said, noting that jeopardy classically "attaches" when trial is over and the accused is acquitted, Fidell said.

"My sense of it is it did not attach here," he said. "It was just not late enough in the proceeding."

But Partington said, "Jeopardy attaches in the military when evidence is offered on the issue of guilt.

"The government presented their case, so jeopardy must certainly attach," he said. The prosecution had rested before the mistrial was declared, but the defense had not yet presented any witnesses.

If the case goes back to trial, Watada would first be allowed to appeal in the Army Court of Criminal Appeals, pushing the court-martial back further, Partington said. If rejected, he would have the option to take the matter to the U.S. Court of Appeals for the Armed Forces in Washington, D.C.

Fidell said that if the judge rightly concluded there were issues about the validity of the stipulation Watada signed, then the mistrial was properly granted.

The real question is whether Watada will be charged on the same charges, Fidell said. The Army originally had dropped some charges for conduct unbecoming an officer, which would have exposed him to a more severe punishment, Fidell noted.

"Now he faces all of them again," he said. "The government may be reluctant to enter into a deal. Now he may be facing greater punishment."