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A "hmmmm" regarding Lieutenant Watada.

By The Armorer on February 11, 2007 | | Comments (6)

In a comment to the Watada, con't post, Hawk observes:

The UCMJ statute on “Former Jeopardy”

“844. ART. 44. FORMER JEOPARDY
(a) No person may, without his consent, be tried a second time for the same offense.
(b) No proceeding in which the accused has been found guilty by court- martial upon any charge or specification is a trial in the sense of this article until the finding of guilty has become final after review of the case has been fully completed.
(c) A proceeding which, after the introduction of evidence but before a finding, is dismissed or terminated by the convening authority or motion of the prosecution for failure of available evidence or witnesses without any fault of the accused is a trial in the sense of this article.”

After reading this, I am not sure there will be another trial. It will be interesting to see the defenses motion.

I went and checked - not because I don't trust Hawk, but because I don't feel like getting snarked... You can find it for yourself here.

I trundled over to Milblogs and asked Army Lawyer to come comment on the subject.

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6 Comments

By Grumpy on February 11, 2007 3:35 PM
John, I think you have made a VERY WISE choice. There is a whole bunch of history here. I also think we are all looking for a black or white answer with no gradients at all. I truly believe we will find the actual truth will be all gradients of grey. As you can well see, I am NO ATTORNEY! I believe even the attorneys and historians will cut this issue a wide berth. Respectfully, Grumpy
 
By Heartless Libertarian on February 11, 2007 3:51 PM
"dismissed or terminated by the convening authority or motion of the prosecution for failure of available evidence or witnesses without any fault of the accused" 1-trial was not terminated by the convening authority, I Corps CG LTG Dubik, but by the presiding magistrate 2-likewise, it was not terminated by the prosecution for failure of evidence through no fault of the accused, but, to my understanding, by the magistrate because of what was, IMHO, a failure by the accused counsel, in that said counsel allowed the accused to sign something that, in the magistrate's eyes at least, was an admission of guilt. I'm not lawyer, but that's how I read it.
 
By Army Lawyer on February 11, 2007 4:02 PM
As I understand the facts, the Gov't asked for a mistrial after the disagreement over the stipulation of fact. The defense wanted to go to trial. Judge granted the mistrial anyway. RCM 915 lays out the standard for granting a mistrial when it's "manifestly necessary." United States v. Ghent, 21 M.J. 546 lays out pretty well the interplay between mistrials over defense objection and double jeopardy. Basically, Gov't has to prove a mistrial was of manifest necessity to avoid DJ issues.
 
By John of Argghhh! on February 11, 2007 4:17 PM
See? This is why commanders have JAGs. I don't have a JAG, but I know a guy who plays one on a blog (and probably stayed at a Holiday Inn Express last night, too). Thanks for dropping by, AL.
 
By ry on February 11, 2007 5:36 PM
Okay, but just what does manifest necessity mean? Give us a ballpark or simple example. Please? Or I'll ankle bite John.
 
By John of Argghhh! on February 11, 2007 6:58 PM
Fark! [shakes foot vigorously] Tell him! Tell him!
 
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