How can a mistrial be considered double jeopardy if he's tried again?

[JEDI]

Attorney says a new trial would be double jeopardy

How can it be double jeopardy???

 

[Aegeon]

Originally posted by: JEDI
Attorney says a new trial would be double jeopardy

How can it be double jeopardy???

The argument is pretty clearly flawed since no jury ruling was given. The only possible effective argument would be the trial was halted because the judge was worried that the jury would rule the defendant not guilty, which does not appear to be the case in this instance. The one major issue would be that this drags out how long it could take for the defendant to get the charges resolved, other issues with the decision would primarily involve whether the defendant should have been allowed to present his argument as his defense during the trial without a mistrial ruling occuring.

 

[Lemon law]

Correct me if I am wrong but this is a military--not a civilian court. So normal constitutional protections do not apply. But, the term military and justice are somewhat contradictions in terms. But I somewhat assume the prosecution case is somewhat flawed over the signed statement agreeing to drop two charges. And now the army wants to have their cake and eat it too by prosecuting on the dropped charges also. A very possible case of an over aggressive prosecution that can and should trigger a mistrial.

Still this double jeopardy sounds like the tactics of an overaggressive defense---which can only fly if it can be proved that it was a run away jury the judge knowingly stopped to prevent a verdict of not guilty.

But Hoorah for Watada---who may be only the first of many---even if convicted---his acts call on the conscience of a nation.----and finally pits the army against the immorality of GWB.
The last time the army sided with the Pres---it took them two decades to rebuild their public image.---hopefully they now have their belly full of being asked to do what no military can do--namely solve political questions.----the army has already done its job in Iraq---delivering a military victory in a few weeks.

 

[Hayabusa Rider]

Originally posted by: Aegeon

Originally posted by: JEDI
Attorney says a new trial would be double jeopardy

How can it be double jeopardy???

The argument is pretty clearly flawed since no jury ruling was given. The only possible effective argument would be the trial was halted because the judge was worried that the jury would rule the defendant not guilty, which does not appear to be the case in this instance. The one major issue would be that this drags out how long it could take for the defendant to get the charges resolved, other issues with the decision would primarily involve whether the defendant should have been allowed to present his argument as his defense during the trial without a mistrial ruling occuring.

Not exactly how it works. Double jeopardy comes into play after the jury is in place and witnesses called. The prosecutors case was in large part based on a "confession" which wasn't. Since the case was based on the wrong premise it got tossed. The govt is going to have a tough time with this one. They must convict him or open a can of worms but they probably can't do it legally. I suppose that they could carefully craft an order to require that he deploy again and if he refuses arrest him again but that creates the problem of entrapment. This thing is all FUBARED.

 

[imported_Shivetya]

Originally posted by: Lemon law
Correct me if I am wrong but this is a military--not a civilian court. So normal constitutional protections do not apply. But, the term military and justice are somewhat contradictions in terms. .

Actually if you look at the cases that US Military courts have ruled on they stick very much to the law. Internal justice for misbehaving members is rarely lienent as unlike civilian life your expected to be able to handle yourself responsbily.

Watched the process happen to a few people I knew while I served. They don't take kindly to whining and blame games. Most problems that people get hit up for have programs within the military offered freely to keep it from getting out of hand, its generally is the fault of the individual for not trying to fix it. (iow - you don't get into trouble for asking for help)

and you don't get prosecutors trying to gain votes making bullpuckey cases

 

[JEDIYoda]

Originally posted by: Lemon law
Correct me if I am wrong but this is a military--not a civilian court. So normal constitutional protections do not apply. But, the term military and justice are somewhat contradictions in terms. But I somewhat assume the prosecution case is somewhat flawed over the signed statement agreeing to drop two charges. And now the army wants to have their cake and eat it too by prosecuting on the dropped charges also. A very possible case of an over aggressive prosecution that can and should trigger a mistrial.

Still this double jeopardy sounds like the tactics of an overaggressive defense---which can only fly if it can be proved that it was a run away jury the judge knowingly stopped to prevent a verdict of not guilty.

But Hoorah for Watada---who may be only the first of many---even if convicted---his acts call on the conscience of a nation.----and finally pits the army against the immorality of GWB.
The last time the army sided with the Pres---it took them two decades to rebuild their public image.---hopefully they now have their belly full of being asked to do what no military can do--namely solve political questions.----the army has already done its job in Iraq---delivering a military victory in a few weeks.

Of course Hooray for Watada!! As long as its not you in his shoes...rofl

 

[Don Vito Corleone]

Originally posted by: Lemon law
Correct me if I am wrong but this is a military--not a civilian court. So normal constitutional protections do not apply. But, the term military and justice are somewhat contradictions in terms.

Even as a flaming liberal, I really take exception and offense to this comment. I spent six years as a military prosecutor and defense attorney, and IMO the American military justice system, while imperfect, is probably the most evolved, fairest system of justice existent. Constitutional protections absolutely do apply to courts-martial, and indeed the military justice system affords the accused many protections beyond those in any civilian system.

As to the topic at hand, this absolutely is not a double-jeopardy situation - this case was not tried to a verdict and thus jeopardy did not attach. Watada's lawyer is either woefully ignorant or (more likely) just blustering. Actually there are several civilian attorneys (most notably Frank Spinner, who built his fame representing Lt Kelly Flynn) who make a handsome living acting outrageous in courts-martial in ways military attorneys can't, and this is a good example.

Much as I empathize with Lt Watada's views on the war (similar views are part of the reason I left the Air Force), it seems to me he is clearly guilty of missing movement, failure to obey a lawful order, and conduct unbecoming an officer. One nice thing about the military justice system is that only a couple of crimes have mandatory minimum sentences (the only one that comes to mind is first-degree murder, which carries mandatory life without parole), and there are no sentencing guidelines (the latter is something the MJ system can only afford due to its relatively low caseload), so a panel of members (aka jury) can sentence Watada to no punishment if they wish.

 

[Deleted member 4644]

Originally posted by: Lemon law
Correct me if I am wrong but this is a military--not a civilian court. So normal constitutional protections do not apply. But, the term military and justice are somewhat contradictions in terms. But I somewhat assume the prosecution case is somewhat flawed over the signed statement agreeing to drop two charges. And now the army wants to have their cake and eat it too by prosecuting on the dropped charges also. A very possible case of an over aggressive prosecution that can and should trigger a mistrial.

Still this double jeopardy sounds like the tactics of an overaggressive defense---which can only fly if it can be proved that it was a run away jury the judge knowingly stopped to prevent a verdict of not guilty.

But Hoorah for Watada---who may be only the first of many---even if convicted---his acts call on the conscience of a nation.----and finally pits the army against the immorality of GWB.
The last time the army sided with the Pres---it took them two decades to rebuild their public image.---hopefully they now have their belly full of being asked to do what no military can do--namely solve political questions.----the army has already done its job in Iraq---delivering a military victory in a few weeks.

Most of the Constitutional protections that are in civilian courts apply to the military as far as I know. DonVito would know the answers.

Edit: He beat me to the punch.

 

[Bateluer]

Watada needs to get the maximum possible sentence, and then some. The US military is an entirely volunteer force. Nobody forced those of us who enlisted, or sought commissioning as officers, to raise our right hands and swear the oath. The key part of that oath is to obey the orders of the officers appointed over you. You cannot disregard those orders you don't like. You follow them to the best of your ability. Having military members disregard orders because they don't like them will cause any military, from any nation, to break down and lose any ability to fight.

I follow orders from my superiors on a daily basis, some I don't really like. I also give orders to my subordinates, and I'm sure they don't like everything I tell them to do either. The fact remains, the job must get done and the mission must be completed.

 

[halik]

Originally posted by: Bateluer
Watada needs to get the maximum possible sentence, and then some. The US military is an entirely volunteer force. Nobody forced those of us who enlisted, or sought commissioning as officers, to raise our right hands and swear the oath. The key part of that oath is to obey the orders of the officers appointed over you. You cannot disregard those orders you don't like. You follow them to the best of your ability. Having military members disregard orders because they don't like them will cause any military, from any nation, to break down and lose any ability to fight.

I follow orders from my superiors on a daily basis, some I don't really like. I also give orders to my subordinates, and I'm sure they don't like everything I tell them to do either. The fact remains, the job must get done and the mission must be completed.

I concur... the whole reasoning on his part is idiotic. After all, what did he think he'll do in the armed forces - sit around and get paid?

 

[Tom]

What about this..

"We agree with the Court of Appeals that the time when jeopardy attaches in a jury trial "serves as the lynchpin for all double jeopardy jurisprudence." 546 F.2d, at 1343. In Illinois v. Somerville, supra, at 467, a case involving the application of the Double Jeopardy Clause through the Fourteenth Amendment, the Court said that "jeopardy `attached' when the first jury was selected and sworn." Today we explicitly hold what Somerville assumed: The federal rule that jeopardy attaches when the jury is empaneled and sworn is an integral part of the constitutional guarantee against double jeopardy. The judgment is

Affirmed."

CRIST v. BRETZ, 437 U.S. 28 (1978)

link

 

[JEDI]

Originally posted by: Tom
What about this..

"We agree with the Court of Appeals that the time when jeopardy attaches in a jury trial "serves as the lynchpin for all double jeopardy jurisprudence." 546 F.2d, at 1343. In Illinois v. Somerville, supra, at 467, a case involving the application of the Double Jeopardy Clause through the Fourteenth Amendment, the Court said that "jeopardy `attached' when the first jury was selected and sworn." Today we explicitly hold what Somerville assumed: The federal rule that jeopardy attaches when the jury is empaneled and sworn is an integral part of the constitutional guarantee against double jeopardy. The judgment is

Affirmed."

CRIST v. BRETZ, 437 U.S. 28 (1978)

link

wow.. i'm surprised there's not more blatent abuse then.

ie: defendant punches his defense attorney in the face at closing arguments.

or if the defendant is rich enuf, have the defense attorney do something outrageous like kiss someone on the jury. yeah, his career is probably over, but the rich defendant has a swiss bank account for him.

 

[Sinsear]

Originally posted by: Bateluer
Watada needs to get the maximum possible sentence, and then some. The US military is an entirely volunteer force. Nobody forced those of us who enlisted, or sought commissioning as officers, to raise our right hands and swear the oath. The key part of that oath is to obey the orders of the officers appointed over you. You cannot disregard those orders you don't like. You follow them to the best of your ability. Having military members disregard orders because they don't like them will cause any military, from any nation, to break down and lose any ability to fight.

Well said and I concur. Hell, if we let this go it would open the floodgates.

 

[Don Vito Corleone]

Originally posted by: Tom
What about this..

"We agree with the Court of Appeals that the time when jeopardy attaches in a jury trial "serves as the lynchpin for all double jeopardy jurisprudence." 546 F.2d, at 1343. In Illinois v. Somerville, supra, at 467, a case involving the application of the Double Jeopardy Clause through the Fourteenth Amendment, the Court said that "jeopardy `attached' when the first jury was selected and sworn." Today we explicitly hold what Somerville assumed: The federal rule that jeopardy attaches when the jury is empaneled and sworn is an integral part of the constitutional guarantee against double jeopardy. The judgment is

Affirmed."

CRIST v. BRETZ, 437 U.S. 28 (1978)

link

A mistrial is an exception to this. Normally if the mistrial is for any reason other than prosecutorial misconduct, it does not bar the defendant from being retried.

EDIT: Here we go, from Rules for Courts-Martial 915(c)(2):

A declaration of a mistrial shall not prevent trial by another court-martial on the affected charges and specifications except when the mistrial was declared after jeopardy attached and before findings, and the declaration was:

(A) An abuse of discretion and without the consent of the defense; or

(B) The direct result of intentional prosecutorial misconduct designed to necessitate a mistrial.

 

[Tom]

Well, that kind of flies in the face of your comment about the military justice system and the Constitution, doesn't it ?

Can you find a limitation like that, outside the Rules for Courts-Martial ? Or in the civilian court, is it up to a judge to decide, based on circumstances ?

 

[Tom]

Originally posted by: JEDI

Originally posted by: Tom
What about this..

"We agree with the Court of Appeals that the time when jeopardy attaches in a jury trial "serves as the lynchpin for all double jeopardy jurisprudence." 546 F.2d, at 1343. In Illinois v. Somerville, supra, at 467, a case involving the application of the Double Jeopardy Clause through the Fourteenth Amendment, the Court said that "jeopardy `attached' when the first jury was selected and sworn." Today we explicitly hold what Somerville assumed: The federal rule that jeopardy attaches when the jury is empaneled and sworn is an integral part of the constitutional guarantee against double jeopardy. The judgment is

Affirmed."

CRIST v. BRETZ, 437 U.S. 28 (1978)

link

wow.. i'm surprised there's not more blatent abuse then.

ie: defendant punches his defense attorney in the face at closing arguments.

or if the defendant is rich enuf, have the defense attorney do something outrageous like kiss someone on the jury. yeah, his career is probably over, but the rich defendant has a swiss bank account for him.

That kind of manipulation wouldn't work, the law isn't a set of machine instructions, it's administered by human beings, and they would not reward obvious misconduct like that.