A Mistrial for Lieut. Watada

The highly anticipated court-martial of Army Lieutenant Ehren Watada for refusing to deploy to Iraq ended in a mistrial on Wednesday, a surprising development that left military prosecutors clearly frustrated, observers stunned and defense attorneys claiming that the military had blown its only chance at a conviction.

"Our hope is that at this point the Army will realize that this case is a hopeless mess," said Eric Seitz, Watada's attorney, speaking at a press conference shortly after the mistrial was declared.

Watada, based at Fort Lewis, just south of Seattle, said he refused to go to war with his unit last June because he had come to the conclusion that the war in Iraq is illegal. In conversations with his superiors, in media interviews and at the court-martial this week he contended that his Army oath required him not to follow what he called an "illegal order" to deploy.

His case has become a rallying point for the anti-war movement, attracting high-profile supporters such as Sean Penn and Cindy Sheehan, but military prosecutors had moved to quash all discussion of the war's legality at the court-martial. The military judge, Lieut. Col. John Head, sided with the prosecutors, ruling that questions about the war's legality were beyond his court's jurisdiction. But barring arguments about the war's legality created a disconnect that ultimately caused the military's case against Watada to unravel.

Watada, 28, faced charges both for failing to deploy and for making public statements about the war that the Army considered "conduct unbecoming an officer." In a pretrial stipulation as part of an agreement to lower the number charges against him, Watada had admitted his failure to deploy. He did not admit guilt on the charge, however, because he felt his failure to deploy had been justified by the war's alleged illegality.

Prosecutors were satisfied with this arrangement and were prepared to let the jury decide the matter. So was the judge, until Wednesday, the third day of the court-martial.

"The judge was concerned that the stipulation amounted to a confession by Watada to an offense to which he intended to plead not guilty," said Fort Lewis spokesman Joseph Piek. It was unclear why it had taken the judge three days to come to this conclusion concerning a document that was a pillar of the prosecution's case, but it was nevertheless devastating to the military prosecutors, who had rested their case the previous day.

Stammering at points in his arguments with the judge and looking extremely frustrated, Army prosecutor Capt Scott Van Sweringen asked for the mistrial after Judge Head, having personally questioned Watada about the stipulation, ruled that he was going to reject the agreement and tell the jurors that is should be disregarded. The judge himself seemed to urge a mistrial request at that point, saying of his direction to the jurors: "How do you un-ring that bell?"

A new trial date was set for March 19, and Piek said the unusual turn of events was proof that the Army "steadfastly protects the rights of the accused."

But it seemed highly unlikely a new trial would actually begin on March 19. Seitz, Watada's lawyer, said there would be scheduling conflicts and that in any case he would file an immediate motion to dismiss the case whenever it was finally reconvened. "It is my opinion that Lieut. Watada cannot be tried again because of the effect of double jeopardy," he said, contending that because it was prosecutors who asked for the mistrial, and because the judge granted the mistrial over the opposition of defense lawyers, the prosecutors could not subsequently retry Watada.

Seitz said Watada was frustrated that the case had ended in a mistrial rather than a verdict, but he also said of the case: "I do not believe it will ever be resurrected."

In the end, Seitz said, the problem was that the military did not want to discuss the reasons for his client's failure to deploy. "I think whenever a prosecutor tries to keep out the substance of why a person acted, when it relates directly to the charges that are there, it creates an untenable series of contradictions," he said.