Wednesday, October 22, 2008

USDC Grants Watada Injunction on 3 of 5 Charges

Judge Settle of the U.S. District Court for the Western District of Washington yesterday granted 1st Lt. Ehren Watada's request for an injunction against the government re-trying him on 3 charges related to his refusal to deploy to Iraq. See Watada v. Head, No. C07-5549BHS (W.D. Wash. Oct. 21, 2008).

I won't recount the year old history of the case, which CAAFlog has covered on four prior occasions (1, 2, 3, and 4). However, the collective CAAFlog reaction to an Art. III court intervening in an on-going court-martial case is best summed up with a quote from my learned and eloquent CAAFlog colleague DHS, "Holy Cow!!!"

On the merits, the Judge's reasoning looks destined for appeal and a showdown over Schlesinger v. Councilman, 420 U.S. 738 (1975) (doctrine of equitable jurisdiction and abstention). This summary seems particularly a subject for attack under Councilman, particularly in light of the Court allowing the government to proceed on two other charges
Therefore, the Court’s assertion of jurisdiction over Petitioner’s double jeopardy claims on Charge I and Charge II, Specifications 1 and 4 is proper because Petitioner has exhausted his available remedies in the military courts and Petitioner would suffer great harm if the Court declined to intervene prior to the convening of the court-martial.

Judge Settle ruled that the government could re-try Watada on two conduct unbecoming charges that were dismissed "without prejudice to ripen into prejudice upon completion of trial proceedings." Since the plea proceedings were never completed, the Court reasoned, there is no double jeopardy issue. Amazingly, Judge Settle even leaves the door open for Watada to return to the Art. III courts should the military decide to retry him on these two charges. See Watada, No. C07-5549BHS, slip op. at 18.


Anonymous said...

If this stands up in the ninth circuit it could change the way the military justice system does business. I have thought for a long time the system allowed unconstitutional double jeopardy.

Anonymous said...

Just for discussion sake, why didn't the Army seek relief by writ at CAAF and have CAAF quash the stay by the District Court (as of now CAAF has jurisdiction on all things military)? And how did the District Court feel that the accused had exhausted his remedies? I believe CAAF denied writ relief but allowed the issue to be part of the normal appellate process.

Anonymous said...

CAAF does not have plenary jurisdiction over all things military, see [i]Goldsmith[/i]. It's an Article I Court, even if it's a very important one, and unless I am mistaken I don't think it would have the power to set aside or alter Article III decisions (except in interpreting Article III rights in the courts-martial context).

Anonymous said...

The exhaustion of military remedies / irreparable harm from an Article I tribunal would come when the court martial was to be reconvened in violation of his double jeopardy rights. He had no further recourse within the MJ system to challenge that so the District Court took jurisdiction.

Anonymous said...

Thank God some adults (Art. III court) stepped in to prevent the children (gov't and MJ) from screwing up this young officer's life. We need more Art. III supervision in the military. We have way too many prosecutors and MJ's who think a conviction is the only good result when alleged misconduct occurs.

Anonymous said...

CAAF has and continues to give Goldsmth little moment. The District Court said that the remedies of the appellant had been exhausted, they had not. His double jeopardy claim is still cognizable under a military justice system.

Anonymous said...

Anon 6:11 then just do away with the UCMJ. If it was possible to have civilians doing military justice we would have. It seems that Art III courts are quite happy leaving Article I courts alone. And, I suggest you look at the conviction rate of the DoJ. You apparently have little exposure to the federal criminal system.

Paul said...

eyezoyez...I suggest you read Denedo. CAAF believes it to be the arbiter of all things military justice, from induction to death.

Anonymous said...

Anon 611,

This young officer decided to screw up his own life when he decided to put himself ahead of his soldiers and let them deploy without him.

Whatever else you want to say about his so-called moral dilemna, nothing can change the fact that a commissioned officer decided he was going to have his enlisted do something he wasn't willing to do himself. Some leader.

I hope he spends the rest of his life haunted by his self-centered cowardice.

John O'Connor said...

I would say what I think of this opinion, but it would be impolitic.

Anonymous said...

JOC = epic FAIL

Anonymous said...

What is interesting is that the civilan court judge addresses the military court actions as if Watada were exhausting administrative remedies before an agency rather than addressing clearly why the court should not abstain. That was my question, especially because the court's decision does not get rid of all the charges.

For that reason, it seems that the military courts are correct-that this should be decided through the standard appellate process, assuming there is a conviction, of course.

Anonymous said...

Maybe CAAF should invite Judge Settle to speak at its CAAF conference in March.

Anonymous said...

Of course, like so much other unnecessary litigation, the MJ created this fiasco, or perhaps better put, did not help in his resolution once this started spinning out of control. The obviously lost in the sauce TC and his Chief of Justice did not see this train coming when they agreed to the PTA. This should have been one day contested trial with live witnesses and no PTA- why the SJA ever let the CA sign that deal is mystery. One wonders how large a fee Watada's had to pay his attorneys at this point -- at least he's paid that fine.

Dew_Process said...

Part of, if not the biggest part, the "problem" here - besides a MJ who lost his temper and never even considered the double jeopardy issue, and a TC and SJA, who acted without thinking, is the facet of not understanding that there are two "double jeopardy" issues. The statutory one under Article 44, which is what everyone in Watada was looking at, and the constitutional right, under the Fifth Amendment.

I just got done litigating this exact issue this week in another Army case, where the Court-Reporter from the first trial left his govt-issued laptop in his car near Fort McNair, and of course promptly had it stolen - along with the transcription notes.

Rather than just approve the sentence and conviction authorized by a non-verbatim record, the Army thinks "justice" requires a Dismissal, so off they go, ordering a re-hearing.

Now, the Army claims that there is no "jeopardy" issue and relies on Art. 44 - and claims there is no Fifth Amendment jeopardy issue. MJ orders them to respond to the Fifth Amend issue, as he does not desire to be a "party" to the collateral appeal.

As in Watada the issue is not Article 44, but the more fundamental being "tried" a second time in the constitutional sense that is the issue. There is a legion of caselaw that says that this is an exception to the collateral appeal rule, which generally would require waiting until normal appellate review.

Army GAD should have urged the CAAF to accept the writ-appeal to resolve the issue, which was ripe and justiciable. They had a second chance to "defeat" jurisdiction by going back to CAAF and asking them to reconsider their denial of the writ-appeal, and if CAAF agreed, they could [at least temporarily] defeat the Article III, jurisdiction. This was especially poor litigation because they banked on winning the abstention issue, which Judge Settle early on wasn't buying.

Having spoken with the original TC and CDC's in Watada the government simply never saw the double jeopardy issue until it was too late.

"His double jeopardy claim is still cognizable under a military justice system."

Anon 0612 - that's the issue - they moved to dismiss before the start of the second trial, the MJ, denied relief, the writ action ensued, which ACCA laughed at, CAAF denied, and hence, federal court. The Constitutional protection is against the second trial, and NOT having to wait until after that trial to litigate the right not to be tried again.

Mike "No Man" Navarre said...

Dew Process usually hits the mark, sometimes a little left of the mark, but I have to disagree on this one. In this particular case, where the court found that some of the charges were not subject to double jeopardy, why shouldn't the Art. III court abstain? Judge Settle himself DOES NOT have a "[c]onstitutional protection . . . against the second trial, and NOT having to wait until after that trial to litigate the right not to be tried again." In other words, there are charges on which Watada can be re-tried in the MilJus system. Thus, regardless of what the Art. III courts do, there will be (or at least could be) a trial and appeal through the mil jus system. Once the Judge made that finding, does Schleshinger v. Councilman "require" remanding the case to the MilJus system?