Mistrial = Double jeopardy?

Matthew Hoy
By Matthew Hoy on February 8, 2007

It's interesting to read the Seattle Post-Intelligencer article and the Seattle Times article on the mistrial of Lt. Ehren Watada side by side.

(For those unfamiliar with Lt. Watada, he has been a favorite of anti-war rallies of late because he contends that the Iraq War is illegal and has refused a lawful order to deploy to Iraq.)

It's not that one of the articles comes from a liberal paper and the other from a conservative paper -- both papers are liberal. It's that one article is reasonable and the other kinda nuts.

First the sane, the Times:

Before his court-martial began this week, 1st Lt. Ehren Watada was packing boxes at his Olympia apartment in preparation for a guilty verdict and prison term.

Instead, the trial ended Wednesday as a mistrial when a judge rejected statements in a crucial pretrial agreement as unintended admissions of Watada's guilt. It is now unclear when — or even if — the 28-year-old Army officer will be tried on charges of missing a troop deployment to Iraq and officer misconduct.

Watada could face a new court-martial as early as mid-March and up to six years in prison rather than the four years at risk in this week's trial.

But Watada's defense team hopes the mistrial will give ample legal ammunition to get the case dismissed or to reach a settlement with Army prosecutors.

"It is our fervent hope that we can resolve this case without ever going back to court," said Eric Seitz, Watada's civilian counsel.

Now the insane, the P-I:

The Army court-martial of 1st Lt. Ehren Watada, which ended in a mistrial Wednesday, may have stranger turns ahead: Prohibitions against double jeopardy may keep prosecutors from having a second trial, his lawyer and another legal expert say.

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."

Now, I am not a lawyer, but I've been in courtrooms covering trials and I'm pretty familiar with the law -- at least as someone without a law degree can be. Mistrials happen all the time. Sometimes a mistrial is declared because of juror misconduct. Sometimes there is a mistrial because inadmissable information accidentally becomes known to the jury.

This doesn't mean that the defendant is protected by the constitutional prohibition against being tried twice for the same crime. (There's a pretty good summary of what double jeopardy is and what it is not here.)

The hypothetical that Prof. Junker raises has no similarity to what happened in the Watada case. The cause of today's mistrial is that the judge found that in signing an agreement with the prosecutors setting down certain facts about the case, Watada had in effect admitted to everything needed to find him guilty. The prosecution's case wasn't going wrong. The judge discovered that Watada wasn't going to really have a defense case to present.

Odds of an appeal on double jeopardy grounds succeeding in this case? One in a billion.

Which brings us to the media issue. Why the disparate coverage by two liberal newspapers in a liberal city by two reporters who were in the same courtroom?

Let's just say that if you ever bought that old media line that the personal biases of the reporters and editors have no effect on what they produce, you'd best get your money back.

The P-I failed so miserably in reporting this story in an unbiased fashion you have to wonder if they're even trying anymore. Readers are far better served by the sober Times piece.

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