Mistrial declared for war objector; 1st Lt. Ehren Watada's court-martial for refusing to go to Iraq falls apart after the military judge questions the factual stipulations.
(By Sam Howe Verhovek, Originally published in the Los Angeles Times, February 8 2007)
A military judge abruptly declared a mistrial Wednesday in the court-martial of an Army lieutenant who refused orders to go to Iraq, a ruling that handed a temporary reprieve to the elated officer and left military prosecutors visibly stunned.
The decision by the judge, Lt. Col. John Head, turned on the contentious issue of whether factual stipulations agreed to earlier by the prosecutors and the defense team amounted to a confession of guilt by 1st Lt. Ehren Watada, 28, on the Army's charges of failure to deploy.
Prosecutors argued, in effect, that Watada did confess to refusing direct orders to fly to Iraq with his unit last summer, and that his reasons were irrelevant.
Watada said he had admitted to the fact that he deliberately missed his flight, but that he did so because he considered the war illegal -- and wanted to explain his reasoning at the trial.
Watada's touchstone case has made him a cult hero among antiwar protesters, but a coward and a traitor to many in the military.
Under the military code, there is a heavy burden of proof on the refuser to justify disobeying the chain of command, because the chain is considered vital to the effective functioning of military forces.
With the defense set to begin its case Wednesday morning, the judge clearly surprised both sides by raising concerns about the stipulations, which he implied would cause him difficulties with the instructions he would give the jury on how to weigh the evidence.
With the seven-member military jury out of the courtroom, the judge said he could not proceed if Watada did not concede he was admitting guilt or if prosecutors did not abandon key lines of their argument.
"There is an inconsistency in the stipulation of fact," Head said. "I don't know how I can accept this ... as we stand here now."
He said he could not allow the court-martial to proceed without dismissing part of the stipulations, which would have been a major tactical advance for Watada.
"We've got the immovable object hitting the irresistible force," the judge said at one point, even as prosecutors and defense lawyers both said they wanted the court-martial to continue. Nevertheless, the prosecutors moved for a mistrial.
Though Watada will probably face another trial, the judge's ruling amounted to a temporary moral victory for the lieutenant in a case that many legal observers had considered a virtual slam-dunk for the Army.
Watada's lawyer, Eric Seitz, said Watada's intent in refusing deployment orders was at the heart of his defense, and that it was ridiculous for prosecutors to suggest that he had no right to explain why he did what he did.
"The government has created a major mess here, and that's clearly why they had to move for a mistrial," Seitz said. "Any time the government tries to suppress a defendant's attempt to explain his actions, that's not a good thing for our legal system."
Antiwar forces wasted no time in declaring the mistrial a victory, with banners saying as much at a rally just outside the base here, several miles south of Tacoma.
"The legal mess we saw here today reflects the major mess the Bush administration has made with the war in Iraq," said Ann Wright, a retired Army colonel and diplomat who resigned a State Department post in March 2003 in protest of the war, which began that month.
But Army officials said the ruling showed how the military system bent over backward to be fair to a defendant.
"Throughout the military justice system, the Army steadfastly protects the rights of the accused," said Lt. Col. Robert Resnick, a legal advisor in the Army's staff judge advocate's office at Ft. Lewis. "The judge's ruling today in this case provides further evidence of that."
Eugene R. Fidell, a military lawyer and president of the nonprofit National Institute of Military Justice in Washington, D.C., said he was puzzled by the judge's decision "to pull the plug on the whole case."
Fidell said the attorneys and the judge could have renegotiated the agreement in the courtroom.
"Now they have to start from square one," he said. With a second trial impending, he said, Watada's case will continue to make news and probably provide more momentum for the antiwar movement.
Watada smiled and hugged his mother, Carolyn Ho, after the judge declared the mistrial. But he left public comments to Seitz, who said Watada was happy but also exhausted, suffering from a cold and disappointed that he was not able to present his defense to the jury.
Watada may not see his second court-martial start until March 19, though the judge indicated it could be postponed beyond that.
His lawyer said it might never come to trial because of government errors.
Seitz rejected any assertion that the stipulations were tantamount to an admission of guilt.
"No. Absolutely no way," he said. "Lt. Watada's a smart guy. He knew exactly what he was agreeing to."