Donald G. Rehkopf, Jr.[Co-Chair, Military Law Committee for the National Association of Criminal Defense Lawyers]:"For those unfamiliar with military practice under the Uniform Code of Military Justice,reading the recent federal District Court decision in Watada v. Head, is probably as baffling as any of the great "Sherlock Holmes" mysteries. But, like any of the Holmes' stories, in the end it all becomes quite "elementary."

LT Ehren Watada, an Army officer stationed at Fort Lewis, Washington, along with his unit received orders requiring them to deploy to Iraq in June of 2006. Believing that the war was illegal and that his participation would subject him to "war crimes" jurisdiction, LT Watada attempted to get his assignment changed to Afghanistan instead. When the Army declined to accommodate him, he refused to deploy. After missing the flight carrying his unit, LT Watada participated in a number of public events, explaining his opposition to the war and reasons for disobeying his orders to deploy. The Army then filed court-martial charges under the UCMJ against Watada for intentionally missing his flight and "Conduct Unbecoming an Officer."

Prior to the start of his general court-martial in February of 2007, Watada's lawyers and the Army prosecutors entered into a written "Pretrial Agreement." That agreement provided that if LT Watada signed a comprehensive Stipulation of Fact about the events encompassed by his charges, that the Army would dismiss without prejudice two of the ancillary "conduct unbecoming" charges. The court-martial began on February 5, 2007, and LT Watada entered "Not Guilty" pleas. At that juncture, the parties discussed the Stipulation of Fact. Military practice requires that before such a stipulation can be admitted as evidence, the military judge must conduct an inquiry outside the presence of the members (military jurors are referred to as "members"). This is to insure that the stipulation is both voluntary and the defendant understands the ramifications of its use. The judge conducted the inquiry without incident, the parties agreed that the inquiry was sufficient and the stipulation was admitted.

After normal trial preliminaries – voir dire, opening statements, etc. – proof commenced and the prosecution offered the pre-admitted Stipulation, which was then published to the members. Shortly thereafter, the prosecution rested and court adjourned for the day. By any civilian standard, jeopardy had attached.

The Jeopardy Implosion

The next day, prior to beginning the defense case, Watada's defense counsel submitted a proposed jury instruction on a "mistake of fact" defense. The judge became concerned over language in the proposed instruction, i.e.,:
"The evidence has raised the issue of mistake on the part of the accused concerning his belief that he had a legal and moral obligation to refuse to participate in the war in Iraq relating to the offenses of missing movement," as being in conflict with the Stipulation of Fact Watada had signed and which by now had been both admitted into evidence and published to the members. After a lengthy dispute, the judge noted that he was inclined to "reject" the admitted stipulation and withdraw it, which in turn would abrogate the parties' Pretrial Agreement.

At that point, the military judge sua sponte raised the subject of a mistrial, and the defense immediately responded by raising the double jeopardy issue. The Army prosecutor then advised the judge that he had no problem with the stipulation, but that the "subjective intent" of the defendant, as encompassed within the proposed instruction, was "irrelevant." After further inquiry by the judge – and most importantly as will be seen, no consideration of alternatives – the judge formally rejected the Stipulation of Fact and asked the prosecution if they wanted a mistrial. Rather than seek a less drastic alternative, the government then inexplicably moved for a mistrial. The Defense immediately objected, to no avail. A mistrial was declared and a new trial date established.

The "Jeopardy" Litigation and the Great Writ

Prior to the start of Watada's second court-martial, he moved to dismiss the charges on double jeopardy grounds. The military judge denied the motion, as did interlocutory appeals to the Army Court of Criminal Appeals and the U.S. Court of Appeals for the Armed Forces. Four days before the scheduled retrial, Watada sought relief via a Writ of Habeas Corpus in the U.S. District Court, which issued a preliminary stay. A month later, after an evidentiary hearing, the Court issued a preliminary injunction precluding restarting the court-martial proceedings. On October 21, 2008, the federal court in Tacoma, Washington, granted the Writ with respect to the charges against Watada that were before the first court-martial, but denied without prejudice, the claims pertaining to the charges that had been dismissed as part of the original Pretrial Agreement.

Watada II

Watada II, is instructive for all criminal law practitioners. But, for military law practitioners, it serves as a stark reminder – especially to military prosecutors – that there is a marked distinction between the statutory double jeopardy right in the UCMJ, and the Constitutional prohibition contained in the Fifth Amendment. Because of the uniqueness of military practice under the UCMJ, which allows a convicted service-member to seek immediate post-conviction relief, both as to the underlying conviction(s) as well as sentence, from the Commander who convened the court-martial before the initial appeal, and because the UCMJ provides for mandatory appeals (unless affirmatively waived by the defendant), in the event of a sentence to a discharge or confinement of one year or more, statutory jeopardy does not attach until that mandatory appellate review is final. A discharge (or dismissal for officers) is not effective until that review is final – the theory being that those convicted ll want to take advantage of a free and mandatory appellate process.

Watada, however, had not sought relief under the UCMJ in federal court – he sought the protection of the Fifth Amendment's Double Jeopardy clause. That appears to have been overlooked by the Army prosecutors at the time that they made their mistrial motion. Constitutional Double Jeopardy has long been held applicable to members of our military forces and courts-martial (see Grafton v. United States) so the only question was, did it under the circumstances, apply in Watada's case? The answer per Watada II, is, yes.

Once the Fifth Amendment Double Jeopardy Clause was deemed applicable, the District Court turned to federal Double Jeopardy jurisprudence pertaining to mistrials. Thus, a prosecutor seeking a mistrial must first establish a "manifest necessity" for such relief, which includes consideration of less drastic alternatives. This is the crux of Watada II, as the Court found that not only was there no manifest necessity for a mistrial, but that the judge had not explored possible remedial action with the parties, e.g., a continuance, refusing to give the defense requested instruction, etc. The vice that the Fifth Amendment's Double Jeopardy Clause was designed to prevent – a second trial on the same charges – barred Watada's retrial.

In the end, in spite of the twists and turns of military practice, which at first blush might appear to be confusing to the novice, in reading Watada II, like one of the Sherlock Holmes' stories, the result was quite "elementary." There simply was no "manifest necessity" justifying the mistrial at Watada's first court-martial, thus the second for those charges, was barred, and the Great Writ issued."