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Posted on 10/05/2007 8:51:57 PM PDT by BuckyKat
Posted on: Friday, October 5, 2007 2:54 PM HST
Associated Press
TACOMA, Wash. >> A federal court judge has temporarily blocked a court-martial scheduled for an Iraq war objector based at Fort Lewis.
The court-martial of Army 1st Lt. Ehren Watada of Hawaii had been scheduled to start Tuesday. Watada’s lawyers argue the Army is violating his constitutional rights by trying him twice for the same crime.
Watada is charged with missing his unit’s deployment to Iraq in June 2006 and with conduct unbecoming an officer for denouncing President Bush and the war.
U.S. District Judge Benjamin Settle in Tacoma has decided his court has jurisdiction to issue the stay and that Watada’s double jeopardy claim is not frivolous. Now the judge has asked for more briefs by both sides on the issue.
ping....da*n
Why not just disband the government and give all control to these judges? Seems they are taking it any way.
Ping
I just post a quickie on my blog over this. This case is going to end up going beyond the 9th circus.
Da*n, I’ll bet he looked good on paper when Bush appointed him. Goes to show you never can tell, though the fact that he was confirmed in June of this year makes me wonder how much leeway Bush has had in appointing judges since the leftist takeover.
Judge blocks war objector court-martial
Oct 5, 10:41 PM EDT
TACOMA, Wash. (AP) -- A federal court judge on Friday temporarily blocked a court-martial scheduled for an Iraq war objector based at Fort Lewis.
The court-martial of Army 1st Lt. Ehren Watada had been scheduled to start Tuesday. Watada's lawyers argue the Army is violating his constitutional rights by trying him twice for the same crime.
Watada is charged with missing his unit's deployment to Iraq in June 2006 and with conduct unbecoming an officer for denouncing President Bush and the war.
In his ruling, U.S. District Judge Benjamin Settle concluded his court had jurisdiction on the request for an emergency stay because Watada "has exhausted his available military court remedies with respect to his double jeopardy claim ..."
Settle also decided that claim was "not frivolous."
The judge has asked for a response by the Army by Oct. 12 and additional briefs from Watada's lawyers by Oct. 17. The earliest the judge might rule, based on those arguments, is Oct. 19. His stay will remain in effect until Oct. 26 or until further action by the court.
Jim Lobsenz, one of Watada's lawyers, noted that in Thursday's arguments, the judge primarily wanted to know if he had jurisdiction "so we talked about that." The newly requested briefs will deal in more detail with the double jeopardy issue.
Lobsenz said Watada had been informed of the stay and "he's very happy - and I'm very happy too."
"Every soldier is entitled to due process in answering charges made against him, and this case is no different. 1st Lt. Watada has always been, and will continue to be, treated fairly and according to law and military justice procedures," the Army said Friday night in a statement issued by Fort Lewis.
Settle noted that "the Court has not been presented any evidence showing that Petitioner's double jeopardy claim lacks merit. On the contrary, the record indicates that Petitioner's double jeopardy claim is meritorious."
The judge added that the harm of being tried twice in violation of the double jeopardy clause of the Fifth Amendment includes the harm of undergoing a second trial proceeding. "Having preliminarily decided that Petitioner's double jeopardy claim is not frivolous, a stay of the military court-martial proceeding is justified," he wrote.
Watada contends the war is illegal and that he would be party to war crimes if he served in Iraq. The Army, which refused his request to be posted in Afghanistan or elsewhere, declared his first court-martial a mistrial in February, over the lieutenant's objections.
If convicted, Watada could be sentenced to six years in prison and be dishonorably discharged.
The Army Court of Criminal Appeals has ruled that Watada can be court-martialed again, but Watada appealed that decision to the U.S. Circuit Court for the Armed Forces, which has not ruled, his attorneys wrote in their emergency motion for a stay.
Watada's attorneys are also asking that he be allowed to leave the Army. Watada's term of service ended in December, but the pending legal proceedings have prevented his discharge. He lives in Olympia and continues to perform administrative duties at Fort Lewis, south of Seattle.
Which unfortunately is most likely what he’s been grooming for (the publicity) since he was a kid, what with Daddy playing politics all his life.
I hope those administrative duties include cleaning toilet bowls with tooth brushes.
How many divisions does the judge have?
Not a legal beagle (but I did sleep at a ...) but this will not go far, IMHO.
His civilian lawyers got a civilian judge to make a judgemnet.....yawn.
If one is in the military, one is subject to two sets of laws...the Civilian side...AND the military side, called the UCMJ.
As San Francisco'ized the 9th Circus is.....the military "owns" this POS.....the UCMJ will have it's way with this turd.
The turkey has been pushing papers since his unit deployed to Iraq and he can travel up to 250 miles from Ft. Lewis on his off duty time without permission, last I heard.
He should be in the brig, IMO.
Although this judge is a former JAG for the US Army, he is taking jurisdiction on a case the US Army Court of Appeals has already ruled can go forward.
The Army’s response to this judge should be “NUTS”.
The jusge is putting Lt. Watada is double jeopardy by subjecting him to two systems of justice.
I don’t know anything about this judge. This is the first federal court the case has gone to.
"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus
The Judge is a recent Bush appointment, and he has had military experience, according to the capsule bio you posted:
Judge Advocate General’s Corps, U.S. Army, 1973-1976
Maybe he’s a lefty. Or maybe he just wants to resolve some sort of legal issue.
Was it double jeopardy? I have no idea. It’s possible that somebody screwed up in the first trial.
That said, I think it’s normally inadvisable for civilian courts to interfere in military justice concerns.
Besides that, I don't see how charging him with multiple charges for different infractions is double jeopardy. As for the "unbecoming of an officer" charge, hell thats the catch all.
Burgess was a corrupt idiot. Heard he is a nephew of the now deceased Jack Tanner.
I’ll say it again...John Kerry redux:
U.S. Senator Ehren Watada (D) HI.
I hope I’m wrong, but I think the chances of this are greater than his chances of going to Leavenworth like he deserves.
“I didn’t think double jeopardy counted with the UCMJ.”
Not even the UCMJ can get out from under the Constitution.
It’s just a formality. The guy did not deploy because of war opposition, which is one charge, and the other is for conduct unbecoming, for denouncing the CiC and the war. That does look like double jeopardy and the defense team did not make a frivolous claim.
So the merits of the claim will be fought. The Army should just give in and say okay, the defense is correct and charge is conduct unbecoming for criticizing the CiC, not for denouncing the war. He is charged for not deploying because of war opposition.
This looks like something the Army prosecutors can handle readily.
You know, I got to disagree a bit with you on that. There are many constitutional rights that members of the military do not enjoy.
Take for example the first amendment, you have no right to free speech in the military. Or the second, you have no right to keep your own weapons in the barracks. You do not have the right to a jury of your peers, just a court martial etc...
Personally, I htink that has been their plan all along. Get it away from the Military and before the most liberal court in the land and set him free.
Am I the only one getting fed up with this?
No. Not by a long shot. This guy has had more than his 15 minutes of fame.
Are judges edible?
Personally, I hope he get to enjoy Kansas for a very long time.
Oh sure, they protect scum like this but prosecute/persecute Marines who do their jobs. In case I forgot to say it in the last 5 minutes: THE JUDICIARY SUCKS!!
Any first-year lawyer will tell you that a mistrial does NOT constitute grounds for double jeopardy. The mistrial will in no way stop a second trial.
Methinks this judge is asking for clarification just to make an iron-clad ruling that a second trial can commence. It’s somewhat a standard procedure for judges to do in high-profile cases, or cases likely to be appealed quite a ways up the chain. Make the conclusion of findings so solid that appeals courts cannot really challenge the conclusion, only look at any new information.
Calls for further information from both sides will pre-empt any real challenges on appeal.
Since when does the judge ask the defendant's lawyer whether he has jurisdiction??!!
Rule 915. Mistrial
(a) In general. The military judge may, as a matter of discretion, declare a mistrial when such action is manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings. A mistrial may be declared as to some or all charges, and as to the entire proceedings or as to only the proceedings after findings.
Discussion
The power to grant a mistrial should be used with great caution,under urgent circumstances, and for plain and obvious reasons. As examples, a mistrial may be appropriate when inadmissible matters so prejudicial that a curative instruction would be inadequate are brought to the attention of the members or when members engage in prejudicial misconduct. Also a mistrial is appropriate when the proceedings must be terminated because of a legal defect, such as a jurisdictional defect, which can be cured; for example, when the referral is jurisdictionally defective. See also R.C.M. 905(g) concerning the effect of rulings in one proceeding on later proceedings.
(b) Procedure. On motion for a mistrial or when it otherwise appears that grounds for a mistrial may exist, the military judge shall inquire into the views of the parties on the matter and then decide the matter as an interlocutory question.
Discussion
Except in a special court-martial without a military judge, the hearing on a mistrial should be conducted out of the presence of the members.
(c) Effect of declaration of mistrial.
(1) Withdrawal of charges. A declaration of a mistrial shall have the effect of withdrawing the affected charges and specifications from the courtmartial.
Discussion
Upon declaration of a mistrial, the affected charges are returned to the convening authority who may refer them anew or otherwise dispose of them. See R.C.M. 401-407.
(2) Further proceedings. A declaration of a mistrial shall not prevent trial by another court-martial on the affected charges and specifications except when the mistrial was declared after jeopardy attached and before findings, and the declaration was:
(A) An abuse of discretion and without the consent of the defense; or
(B) The direct result of intentional prosecutorial misconduct designed to necessitate a mistrial.
The reference here is the MCM, 2005 edition. Here is my link to the .pdf file:
http://www.au.af.mil/au/awc/awcgate/law/mcm.pdf
(I'm not sure if the link is working or not. I downloaded a copy for personal reference and the text above is taken from that. The file is HUGE. What I think may be a broken link may, in fact, just be a slow loading file.)
The issue turns on when jeopardy began. There is a lengthy discussion of the case law in the MCM. (It is pages long and I won't list it here because the formatting will take hours to untangle once the text is ported over. Just do a search on double jeopardy and it will come up.) As best I understand the text, it appears that once the court martial was empaneled (judge and jury sworn) and the taking of evidence commences, the defendant is under jeopardy. Then the restriction against a second trial on the same charges (underlined and bolded above) comes into play. However, the discussion of double jeopardy in the MCM does not include a case directly applicable to this one, so it is not clear that the exception can be invoked. Consequently, the issues raised by the defense may have enough merit that they need to be adjudicated before a trial can proceed. I have not read the brief before the U.S. District Court but it is not unreasonable to imagine that the defense is basing its objection on one or the other (or perhaps both) of the exceptions that prohibit a second trial.
(907 double column pages. Search is your friend.)
Try the bastard already! This has been going on too long. At my unit we’ve had 7 AWOL’s since January and two are now deserters, one is in jail on other charges, one is back to work and doing good. Someone needs to make a NATIONAL EXAMPLE to show these cowards we mean business. Because of the AWOL soldiers I am headed to Iraq with a squad at 50% strength.
Exactly!! The turkey made his choice and he's too much of a coward to stand up and take resposibilty for his failure to obey orders. Thank you for your service.
Agreed! The little twerp’s unit just came back from its year in Iraq. I’d like to see every one of them sitting in the gallery at his trial. Show him what heroes look like.
Say WA? Evergreen State ping
FReepmail sionnsar if you want on or off this ping list.
Ping sionnsar if you see a Washington state related thread.
his second court-martial ?
Our founders seem to have known what flaws are inherant in our system. We on the otherhand have forgotten the warnings.
Olympia - Thurston county.
Ft. Lewis - Pierce county.
Somebody knows him, and wants totie up the proceedings for a while. Put him on a ship out to sea for a while.
Article I Section 8 of the Constitution grants Congress the power “To make Rules for the Government and Regulation of the land and naval forces.” The UCMJ does just that. Civvie judge has no jurisdiction and can pack sand.
The US Military - we protect freedom, we don't exercise it.
I don’t understand. I thought it was some kind of mistrial for Watada. I thought in such a case you re-try. It’s not the same as an acquital.
Where did you get the idea that a mistrial created double jeopardy?
B$ Old Fart, and so is your tag line. Ever hear of Hitler, Stalin, Mao?
The most dangerous man is the one who has nothing left to lose.
That's why it's the military and not the cub scouts.
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