Posted on 10/04/2007 10:50:02 AM PDT by jazusamo
Lawyers turn to federal judges in Seattle to stop new court-martial
Lawyers for Fort Lewis 1st Lt. Ehren Watada, who in June 2006 went public with his refusal to serve in Iraq and said the war is illegal, asked the U.S. District Court in Seattle on Wednesday to halt his court-martial, which is only days away.
Watada's second court-martial is slated to begin Tuesday. His first court-martial earlier this year ended in a mistrial before a jury could deliberate.
Watada's lawyers said they hope for a decision Friday. Monday is a federal holiday, Columbus Day.
Before Watada's lawyers announced their move, Fort Lewis officials issued a news release saying the court-martial was slated for 9 a.m. Tuesday.
Watada is charged with missing movement with his unit to Iraq and of conduct unbecoming an officer for anti-war statements he made in the media and as a speaker at the national convention of Veterans for Peace in Seattle in the summer of 2006. If convicted, he could face up to six years in prison.
Watada's case is being appealed on grounds that a second court-martial violates his constitutional protections against double jeopardy -- being tried twice on the same charge -- because he was court-martialed earlier this year on those charges. But, over his objection, a mistrial was declared "without there being the requisite manifest necessity for such declaration," said court papers filed Wednesday. The military judge, Lt. Col. John Head, ordered a second trial.
The U.S. Army Court of Criminal Appeals and Head have ruled otherwise, dismissing the double-jeopardy claims. The issue last month was presented to the U.S. Court of Appeals for the Armed Forces, the military's highest court and made up of civilian judges who hear military issues.
"We believe we have a strong case and are looking forward to litigating the double-jeopardy issue in federal court," one of Watada's lawyers, Ken Kagan, said.
Kagan and Jim Lobsenz, both of the Seattle law firm Carney Badley Spellman, Wednesday filed a writ of habeas corpus and a request for an emergency stay in Seattle federal court because the Appeals Court for the Armed Forces has not ruled and the trial date is quickly approaching.
Among other remedies, Watada's lawyers have asked the federal court in Seattle "to issue a writ of habeas corpus releasing (Watada) from all restraint imposed by the pending court-martial charges, and declaring any trial on such charges to be barred and prohibited by the double-jeopardy clause of the Fifth Amendment."
After learning of the new court challenge, Fort Lewis officials said in a statement that they had followed the law in scheduling a second court-martial.
"We've not seen the filing or heard a ruling on it from the court, so we will not speculate on what effect it may have on next week's scheduled trial. However, the government has followed the law and rules throughout the process of bringing this case to trial. The U.S. Army Court of Criminal Appeals in Balston, Va., determined that this case was not prohibited by double jeopardy and may properly proceed to trial. The court issued its ruling after considering comprehensive briefs and arguments from the parties."
Kagan said he thinks that there's a likelihood a federal judge will accept the case because military officers are federal officers who fall under the Seattle federal court's jurisdiction.
Kagan said he believes there is "a good chance" the court-martial will be delayed because local federal judges feel bound by precedents of the 9th U.S. Circuit Court of Appeals and other higher civilian courts. "Those circuits have looked at this issue and concluded when there is a decent double-jeopardy claim, you have to stop the trial, and you've got to review it," Kagan said.
Court documents show that Watada's term of service as an active-duty military officer ended in December, but he has been held over because of the legal proceedings. He refused to go to Iraq in June 2006 with the 3rd Stryker Brigade
Yep, but his lawyers are sure giving it a try. They’re milking this for all it’s worth for the anti-war crowd.
In most cases jeopardy attaches when a jury is empaneled, or evidence is presented to the Court.
He’s already in double jeopardy: He is a traitor and a coward.
Hang the traitor and hang him high!
Speaking of phony soldiers...
Exactly! Watada is not only phony but he broke his oath, he’s a four flusher.
English Common Law set the jeopardy point when a verdict was rendered. The Crist v. Bretz decision changed the federal rule to the point when the jury was sworn. The intent of the decision was to prevent the government from restarting the process ad infinitum until a guilty verdict was obtained while draining the limited resources of the defendant to endure the repeated attempts.
While it may represent "good lawyering", it is also a travesty of justice for Watada to escape prosecution.
This applies to prosecutorial actions, not judicial actions.
The entire jury trial can proceed up to the moment the verdict is to be read, and the judge can still declare a mistrial and the defendant can be put on trial again.
However, the prosecutor cannot drop the charges after the jury is empaneled or after presenting evidence in the hopes of refiling the charges again.
If this were not the case, then every time a prosecutor started to believe the case was going against him, he would drop the charges and refile when he found better evidence.
He can be called a lot of things but he isn't a phony soldier.
ugh not more watada-rama
From today’s Honolulu Star Bulletin (letters to the editor)
This one deserves repeating!
*****
Who, if anyone, took the hit for Watada?
Your report yesterday that Army 1st Lt. Ehren Watada’s unit is returning from Iraq after an extended battle tour of 15 months, with 48 casualties, raises the questions, Did his replacement officer make it back alive, and how many of the men who were under his command were listed as killed in action?
Watching Ken Burns’ “The War” on PBS and seeing what the 100th/442 did and the conditions they endured really shines a bright light on this guy.
I was drafted out of Fort DeRussey in 1966, but we were not aware that we could opt out of the combat arms and just go to the officers club. Some good deal, yeah?
Robert Young
Kahului
Good letter, thanks for posting, Mr. Young makes valid points.
I can forgive him for not understanding the concept of double jeopardy, but his attorney knows better.
What a pantload.
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