Mistrial for Watada Double Jeapordy May Apply
#1
Posted 2007-February-09, 21:06
Link to story: http://www.truthout....6/020807A.shtml
Was a mistrial declared because the military did not want to have to face this defense in an open court martial?
#2
Posted 2007-February-10, 09:04
#3
Posted 2007-February-10, 09:21
http://www.armfor.us...erm/02-0212.htm
In Rosendahl, we noted that service members are protected with respect to each of the three components of the constitutional prohibition against double jeopardy. "In the military, as in civilian life, the following are prohibited: (1) trial for the same offense after acquittal; (2) trial for the same offense after conviction; and (3) multiple punishments for the same offense." 53 M.J. at 347. See Articles 44, 63, and 75(a), UCMJ, 10 U.S.C. §§ 844, 863, 875(a)(2000); Rule for Courts-Martial (hereinafter R.C.M.) 810(d)(1) and 1107(f)(5)(A), Manual for Courts-Martial, United States (2002 ed.)(hereinafter MCM). See also North Carolina v. Pearce, 395 U.S. 711 (1969).
#4
Posted 2007-February-10, 09:22
luke warm, on Feb 10 2007, 05:04 PM, said:
Is that a good idea, Jimmy? I suppose most future tasks of U.S. troops will be peace-guarding missions. It would be difficult to find someone against whom to declare war in Iraq, for example.
#5
Posted 2007-February-10, 09:34
#6
Posted 2007-February-10, 09:40
helene_t, on Feb 10 2007, 10:22 AM, said:
luke warm, on Feb 10 2007, 05:04 PM, said:
Is that a good idea, Jimmy? I suppose most future tasks of U.S. troops will be peace-guarding missions. It would be difficult to find someone against whom to declare war in Iraq, for example.
i think it's an excellent idea, and one i'll implement when i'm benevolent dictator... it would force congress' hands and (almost) guarantee the support of the public before troops are committed... imagine life if we'd not gone into viet nam or iraq or countless other places unless war was declared... true, the executive branch needs emergency powers, but outside of that i'm for either fighting a WAR or stayng home
and if we fight a war, we fight it to win... quickly and decisively
#7
Posted 2007-February-10, 12:15
luke warm, on Feb 10 2007, 10:40 AM, said:
helene_t, on Feb 10 2007, 10:22 AM, said:
luke warm, on Feb 10 2007, 05:04 PM, said:
Is that a good idea, Jimmy? I suppose most future tasks of U.S. troops will be peace-guarding missions. It would be difficult to find someone against whom to declare war in Iraq, for example.
i think it's an excellent idea, and one i'll implement when i'm benevolent dictator... it would force congress' hands and (almost) guarantee the support of the public before troops are committed... imagine life if we'd not gone into viet nam or iraq or countless other places unless war was declared... true, the executive branch needs emergency powers, but outside of that i'm for either fighting a WAR or stayng home
and if we fight a war, we fight it to win... quickly and decisively
I would take this one step further - it must be a defensive war. Lies about WMD, chemical stockpiles, and Nigerian yellowcake may have misled Congress into declaring a pre-emptive, offensive war.
#8
Posted 2007-February-10, 12:25
So much for fighting those nanobots or a malevolent AI
#9
Posted 2007-February-10, 13:12
mike777, on Feb 10 2007, 01:25 PM, said:
So much for fighting those nanobots or a malevolent AI
I have stated my opinon before and will do so again. Terrorism is a crime, and as such should be dealt with by police action, not war.
A war of ideology had no place on the battlefield, unless one ideological group invades another in hopes of conquering - but it is the action of invasion that warrants the war, not the battle of minds.
Do you, Mike, believe that each individual has a right to his own beliefs? If so, then a radical Islamic has a right to his beliefs. If those beliefs are in opposition to yours, does that give you the right to kill this person - simply because his beliefs do not conform to your beliefs? The only time you have the right to kill is when the other person attacks, and you act in self defense. To kill before he acts is simple murder.
If a terrorist attacks and kills, we call it murder.
If you were a radical Islamic, and the U.S. attacks and kills your followers, you would call it murder - it is a matter of perception.
No one can change the actions of another human being unless done by force. If I hold a gun to your head and tell you to get down on your knees, you will do so, but have I accomplished anything of worth? And my actions will be either viewed as criminal, if I have no perceived authority to order you around, or legal, if I am a policeman perceived as making a legal arrest.
It is only a matter of perception that alters the view of the action.
My perception is that murder is murder, no matter who does the killing.
#10
Posted 2007-February-10, 13:17
Heck of alot of horrible things are legal in war, not just killings.
#11
Posted 2007-February-10, 13:18
mike777, on Feb 10 2007, 02:17 PM, said:
Heck of alot of horrible things are legal in war, not just killings.
Mike, define war.
#13
Posted 2007-February-10, 14:00
Quote
Seems to me that according to the definition you provided, killing small groups of isolated terrorists are not acts of war.
I believe a great number of people - like me - do not accept the nomenclature of "War on Terror". So what happens in this mis-named "war" cannot be compared to what occurs in actual war on the battlefields.
We should refer to these deaths as what they are - executions.
How can you have a "War" when the enemy combattants are not protected under the Genova Convention? If it is war, the convention applies; if the convention does not apply, it is not war.
#14
Posted 2007-February-10, 14:31
Winstonm, on Feb 10 2007, 10:00 PM, said:
How can you have a "War" when the enemy combattants are not protected under the Genova Convention? If it is war, the convention applies; if the convention does not apply, it is not war.
As I understand it, the Geneva Convention applies to prisoners who were soldiers in a recognized country - since what they were doing (being soldiers) was legal under there jurisdiction (that of their own country) they are not ordinary criminals.
If that is correct, the Geneva Convention does not apply to guerilla war, which is nonetheless commmmonly refered to as "war".
Correct me if I'm wrong. Anyway, I agree with you that the "war on terror" shouyld not be called a war. Whether "execution" is the right word, I duno.
#15
Posted 2007-February-10, 16:10
helene_t, on Feb 10 2007, 03:31 PM, said:
Winstonm, on Feb 10 2007, 10:00 PM, said:
How can you have a "War" when the enemy combattants are not protected under the Genova Convention? If it is war, the convention applies; if the convention does not apply, it is not war.
As I understand it, the Geneva Convention applies to prisoners who were soldiers in a recognized country - since what they were doing (being soldiers) was legal under there jurisdiction (that of their own country) they are not ordinary criminals.
If that is correct, the Geneva Convention does not apply to guerilla war, which is nonetheless commmmonly refered to as "war".
Correct me if I'm wrong. Anyway, I agree with you that the "war on terror" shouyld not be called a war. Whether "execution" is the right word, I duno.
You could be right, Helene, and I'm too lazy today to look it up. But I thought the Viet Cong were provided rights under the Geneva Convention, and they could be classified as guerilla fighters I would think.
I'm not sure if execution is the right word either - perhaps the phrase counter-terrorim action is more appropriate.
However, my point is that whatever it is called depends on your perception - I doubt the followers of bin Laden call U.S. actions justifiable homicide.
Speaking of the Geneva Convention:
It is my understanding that part of the reason for the Military Commissions Act was so these new enemy combattants in the "War of Terror" could be removed from the protections of the Geneva Convention - so they could be tortured and not have any rights to habeus corpus.
This is an interesting Act we of the good old U.S.A. passed - I'm not sure many people even think about it. But here is what it does:
If you are suspected - notice, not proved - but suspected of having terrorist connections, the U.S. government has the right to arrest you with no charges, hold you in jail forever with no charges, torture you at their whim, while you have no rights whatsoever to prove your innocence and no one but your captors to decide your fate. No U.S. court can free you.
Quote
Oliver Wendell Holmes
The Military Commission Act - that ought to make us feel proud to be Americans.
#16
Posted 2007-February-10, 18:02
Since there is no verdict in a mistrial, the judge declaring this mistrial may declare the mistrial with or without predjudice.
With predjudice means that the judge is in effect rendering a not guilty verdict. This usually only happens in cases of prosecutorial misconduct or overwhelming evidence.
BebopKid (Bryan Lee Williams)
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#17
Posted 2007-February-10, 18:18
BebopKid, on Feb 10 2007, 07:02 PM, said:
Since there is no verdict in a mistrial, the judge declaring this mistrial may declare the mistrial with or without predjudice.
With predjudice means that the judge is in effect rendering a not guilty verdict. This usually only happens in cases of prosecutorial misconduct or overwhelming evidence.
I cannot dispute your claims as I am not an attorney - but you might consider the opions of these legal experts:
Marjorie Cohn, a professor at the Thomas Jefferson School of Law and a proposed expert witness for the defense, opines: "When the Army judge declared a mistrial over defense objection in 1st Lt. Ehren Watada's court-martial, he probably didn't realize jeopardy attached. Although he faces the possibility of a dishonorable discharge, the judge's grant of a mistrial precludes retrial on the same criminal charges."
Prominent Honolulu defense attorney Howard Luke states, "Was there manifest necessity? That's up to the court to decide...From what I understand, I think not. The case could have been continued."
Let's close by examining the law on whether Lt. Watada can be forced to endure a second trial despite the double jeopardy doctrine. The latest case on the subject, US v. Eliot, 463 F.3d 858, 864 (9th Cir. 2006), states: "When, as here, a mistrial is ordered over a defendant's objection, retrial is permitted only if there was a "manifest necessity" for a mistrial (a case-by-case determination with a "high" burden). Other factors to look at are whether the trial judge (1) heard the opinions of the parties about the propriety of the mistrial, (2) considered the alternatives to a mistrial and chose the alternative least harmful to a defendant's rights, (3) acted deliberately instead of abruptly, and (4) properly determined that the defendant would benefit from the declaration of mistrial."
A case to look at for guidance is United States v. Rivera, 384 F.3d 49, 56 (3rd Cir. 2004) which states: "Critically, a mistrial must not be declared without prudent consideration of reasonable alternatives. Federal Rule of Criminal Procedure 26.3 requires that "[b]efore ordering a mistrial, the court must give each defendant and the government an opportunity to comment on the propriety of the order, to state whether that party consents or objects, and to suggest alternatives. Where a District Court sua sponte declares a mistrial in haste, without carefully considering alternatives available to it, it cannot be said to be acting under a manifest necessity. Any subsequent reprosecution under those circumstances is barred by the Double Jeopardy Clause."
Eric Seitz (defendent's attorney) has stated, "My professional opinion is that Lt. Watada cannot be tried again because of the effect of double jeopardy," and will file a motion to dismiss the entire case