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Wednesday, February 7, 2007

Watada: MISTRIAL

posted by on February 7 at 14:23 PM

Feat-160.jpg

Eli phones it in from Fort Lewis…

The military prosecutors came back and moved for a mistrial. They looked very frustrated. The judge dismissed the jurors, and ordered them not to speak to the press or anyone else.

The big impact of this? In the new trial Watada and his lawyers will get to argue all over again that they should be able to essentially put the Iraq war on trial. In other words, argue that Watada’s actions were the result of his belief that the war was illegal, and orders to participate in that were therefore illegal. This judge had previously ruled all of that irrelevant. But the declaration of a mistrial has put all that back in play.

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1

That's fantastic - I think this is the best outcome we could have hoped to come out of the mess this "trial" turned out to be. Here's hoping he has better luck with the next one!

Posted by wench | February 7, 2007 3:00 PM
2

The whole "put the war on trial" strategy seemed like such a gamble at first, but it's cool that they stuck to their guns and got this outcome!

Posted by Hernandez | February 7, 2007 3:12 PM
3

OMFG - actual Justice?

Posted by Will in Seattle | February 7, 2007 3:12 PM
4

I'm not seeing how this is a victory for either side. This doesn't show that the government's case is necessarily weak, just that the two sides had gone forward with the understanding that they agreed on certain facts. Now they realize that there had been a misunderstanding as to what facts they had agreed to.

Posted by John | February 7, 2007 3:22 PM
5

John, yeah, they just didn't agree on the basic fact that the Iraq war is an illegal war of agression.

And we get to argue that point for many months more because of it.

Posted by Daniel K | February 7, 2007 3:54 PM
6

Hmm, the judge threw out Watada's entire defense. Hard to imagine why there might be a mistrial there, especially when his superiors got to blather on about how much his statements to the media hurt their feelings.

Posted by keshmeshi | February 7, 2007 4:26 PM
7

The mistrial is probably based on jury impartiality issues. But I'm just totally speculating here. Regardless of the reason, this is fucking awesome news!

Posted by wf | February 7, 2007 4:39 PM
8

oh. i didn't see dan's previous post on this...

Posted by wf | February 7, 2007 4:41 PM
9

Here's my first blush cursory understanding of the issue.

A conviction for most crimes requires a showing of intent to commit the criminal act, the state of mind of the defendant.

Defendants are generally allowed to present a case that there was no intent to commit the crime.

Here the defense and the prosecution agreed to stipulate that as a matter of fact Watada made a choice not to get on the plane. The news sources and analysts I read painted this as a boon for the prosecutors because they wouldn't have to call certain media witnesses they planned to call to prove that verbalized making that choice. In return the prosecutor agreed to drop two charges, thereby lowering Watada's potential jail time.

The problem arises with the judge. In the judge's mind, this stipulation by Watada regarding his choice was interpreted as meaning that he was also conceding that he had the requisite criminal state of mind (mens rea), as a matter of fact. Only today, after going over it for the 3rd time with Watada did if finally get through the judge's thick skull that Watada and his attorney had no intent to concede the criminal state of mind issue and planned to have him testify to his state of mind as not meeting the definition of criminal.

Strangely, the prosecutors themselves this morning also stated they they also expected that Watada would argue that he lacked the requisite criminal state of mind to be convicted.

What makes this amusing (and I'm embarrassed that I didn't pick up on it earlier), is that all the tight witness control and restrictions by the judge designed to keep out any discussion of whether the Iraq war might be illegal as a matter of fact in the end became moot. The judge found himself backed into a corner. Because criminal intent (mens rea) is a element the jury must find in order to convict, Watada has to be allowed to argue that he didn't have the required mens rea because he believed the war to be illegal, even if he is not allowed to bring witnesses to argue that the order for him to deploy was in fact an illegal order. So, in the end, the jury could have found it believable that Watada genuinely believed the order was illegal and been obliged to find him not guilty.

If my analysis is somewhere near the mark, this situation put the judge in a terrible bind. He may have even been bound to either give the jury an instruction about illegal orders or made a legal finding that such an instruction is not required because there is no requirement that soldiers refuse to obey illegal orders. The judge from the begining has been trying to avoid this very situation but didn't see he was trapped until today and had to throw the ball away or be sacked, so he declared a mistrial because he didn't understand that the stipulations didn't solve this problem for him, not because of anyone else's actions or understanding.

Posted by mirror | February 7, 2007 6:17 PM
10

P.S. my understanding is that although the defense argued strenuously against the declaration of a mistrial, they now believe this declaration by the judge at this stage allows them to argue that a second trial would be illegal as double jeopardy.

Also, the jury instruction issue is one that has hardly been discussed and I may be making too much of it, but it is a fascinating way to view the case. What is the jury told they are allowed or required to consider to convict?

Posted by mirror | February 7, 2007 6:24 PM
12

Regarding my above comments, I'm probably way off in my analysis. After further reading I see that the judge had already ruled that "motive" was not an element of the crime of "missing movement." So I assume by that he means intent and mens rea.

My bad.

I still like my fantasy construct though. It's pretty amazing that a soldier can charge with war crimes but cant argue in his defense that he REFUSED to commit war crimes.

Is this a dictatorship or what. Soldiers must commit any crime they are orderred to or go to jail.

Posted by mirror | February 7, 2007 10:37 PM
13

MIRROR Wrote:
"Soldiers must commit any crime they are orderred to or go to jail."

Actually it is either way...commit the
crime they ordered or don't commit the crime they ordered...both can land you in jail. The fact you were unwilling to participate in an immoral or unlawful act is something you must prove in a court, such a Watada faced, and who may be hostile to examining that morality.

--Jensen

Posted by Jensen Interceptor | February 8, 2007 8:52 AM
14

Replying to "Is it true that over 40,000 have deserted the Armed Forces since 2000?"

Yes, true; but not supporting the inference that personnel are deserting in opposition to the war.

Military desertion rates overall are down since 9/11. The Army recently said the overwhelming majority of desertions are still for family or personal reasons, not war opposition -- a statement I buy, based on 16 years in the Army ending in 2005.

With rare exceptions, people do not desert on conscience issues, even in wartime. Indeed, there are many other less foolish and hazardous ways than desertion to get out of the military, even in wartime.



Posted by AgingVet | February 8, 2007 7:06 PM
15

Is Erin the first soldier with the guts to stand up to a crooked(or amazingly stupid) presidents happy little military adventure? President Bush should be tried in Nurenburg for war crimes. Saddam was bad but how much better are the Iraqi people off today? We can't leave Iraq in a mess,though. We have to restore some level of stability. We broke it, we bought it. We should be carpeting the country with clean water wells, decent housing, hospitals, schools, win the population over with kindness where ever possible, first.
Stand strong, Erin. There are a lot of people in my area who are in support of what you are doing!!

Posted by tiekelmanak | February 12, 2007 5:47 PM

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