Mistrial Declared in Watada Trial
By NAO GUNJI
Rafu English Assistant Editor
Saturday, Feb. 10, 2007

Watada case ends in mistrial after misunderstanding over stipulation in missing movement charge.

FORT LEWIS, Wash.-Military Judge Lt. Col. John Head declared a mistrial based on a “breach of pre-trial agreement” in the court-martial of 1st Lt. Ehren Watada on Wednesday, after the prosecutors decided to take his advice to reopen the case. The court is scheduled to come back on March 19.

Watada, 28, was being tried for missing movement for refusing to deploy to Iraq and conduct unbecoming an officer. If convicted he could have received four years in prison and a dishonorable discharge.

“At this point, we, the government, would like to declare a mistrial,” said lead prosecutor Capt. Scott Van Sweringen after a 30-minute recess.

The mistrial followed a day of confusion and heated wrangling between the judge and both parties over a stipulation of facts pertaining to the charge of missing movement.

In the 12-page stipulation of fact he signed last month, Watada acknowledged that he refused to deploy last June with his unit, the 3rd Brigade, 2nd Infantry Division, and that he made public statements criticizing the Iraq war. Watada has said he refused to go to Iraq because he believes the war is illegal.

In exchange, prosecutors dropped two charges of conduct unbecoming an officer against him. He remained charged with missing movement-for his refusal to deploy-and two other allegations of conduct unbecoming an officer for comments made about the war and his stand.

The question was raised by the judge when Seitz indicated that in closing arguments, he had wanted to say that Watada had not defied a “legal duty” to deploy with his unit; rather, he had missed the order to deploy because the order itself was illegal.

The judge told Seitz that this addition was “inconsistent” with the stipulations of facts agreed upon and confirmed by the defense and the prosecutors during the pre-trial agreement held on Monday.

With the panel of seven Army officers out of the courtroom, Head sought to question Watada about his understanding of the stipulation in order to eliminate any inconsistencies.

“Did you believe that you had a duty to make the movement?” he inquired of the Nikkei officer.

Watada answered, “No,” reasoning that he was ordered to participate in something he believed to be illegal.

The judge further asked him if he believed he had a defense for missing the deployment, and Watada answered, “I’d always believed that I have legal and moral defense in my actions.”

“You believe that it is a confessional stipulated fact in every element, but the defense doesn’t believe that,” the judge then told the prosecutor.

Watada was expected to testify on Wednesday, and prior to the start of the morning session, he appeared relaxed. His mother, Carolyn Ho, was also in the courtroom.

“The mistrial is very likely to have the consequence of ending this case because double jeopardy may prevent the government from proceeding with a retrial,” said Seitz during a press conference after the court-martial. “Although the defense was prepared to proceed with Lt. Watada’s testimony, and felt very optimistic about this trial, we view the order declaring a mistrial as a significantly positive event.”

Prosecutors Present Case Against Watada

Commanding officer Lt. Col. Bruce Antonia details “man-to-man” conversation he had with the first lieutenant.

FORT LEWIS, Wash.—On Tuesday, the Army prosecution outlined its case against 1st Lt. Ehren Watada, who faces a court-martial for refusing to deploy with his unit to Iraq.

In the morning session, Military Judge Lt. Col. John Head and the panel which will decide Watada’s fate, heard opening arguments and testimony from Lt. Col. Bruce Antonia, the first of three prosecution witnesses.

Watada, 28, of Honolulu, is charged with missing movement for refusing to ship out with his unit, the 3rd Brigade, 2nd Infantry Division. He also faces charges of conduct unbecoming an officer. If convicted, Watada could receive four years in prison and a dishonorable discharge.

His attorney, Eric Seitz, said he would call Watada and a character witness, an Army captain who has known Watada for about two years. The captain was brought back from service in Iraq to testify, the lawyer said.

The charge of conduct unbecoming an officer stems from statements Watada made in June 2006 accusing the Army of war crimes and denouncing the Bush administration for conducting an “illegal” war. Prosecutors contend that Watada’s statements against the Iraq war constituted an act of betrayal that disgraced himself and the Army.

“He (Lt. Col. Antonia) did not intend to make this a public matter, so he felt betrayed that the accused put this matter into the public’s eyes,” asserted prosecutor Capt. Nick Brown.

Antonia testified that while he had discussed Watada’s feelings about the war with the first lieutenant, he was surprised when Watada went public.

“At that time it was a man-to-man conversation. I do not recall that he told me that he was not going into the public debate, but it certainly was my assumption. I was surprised that he made that statement before coming to me,” Antonia said.

During cross examination, Seitz argued that Watada followed the guidelines set by his commanding officers.

“After he wrote letters (to his commanding officers) he was told to go to the public affairs office in Fort Lewis, which he did. Then he was told that if you have to make a public statement, you have to do it off duty, off uniform and in a respectful manner,” Seitz said.

And this is what Watada did, according to Seitz. Watada was never disrespectful towards his commanding officers. He didn’t get an answer in a timely manner before his deployment, so he went public.

In cross examination, Antonia also offered that Watada was a “quality officer, smart and hard working.”

Watada supporters, in a room designated for overflow, cheered at times during Antonia’s statements when he appeared to falter during questioning.

There were approximately 30 observers—the majority supporting Watada.

The panel heard from two witnesses in the afternoon, including Lt. Col. William James, who had counseled Watada.

James called Watada’s actions, a “young man’s mistake.”

When asked by Watada’s attorney whether he would ever expect officers to act against their conscience, James said, “no.”

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On Monday, a group of war protesters, including actor Sean Penn, gathered near Fort Lewis to support the Nikkei officer, while the first day of the court session proceeded inside.

Dozens of people signed up to observe the court-martial in a room near the courtroom. A few others demonstrated against Watada, including one man who carried a sign calling him a “weasel.” 

On Monday, Head ruled against the defense’s request to call military law experts, who called the Iraq war illegal, as witnesses.

The judge refused the request made by Seitz, stating that the list is “irrelevant” to the case. He previously ruled that Seitz could not debate the legality of the Iraq war in court.

“All the law is coming from me, not from witnesses,” said the judge in a heated discussion with the attorney.

Watada briefly spoke to the judge to answer his questions concerning missing the deployment of his unit in June 2006 and the statements he made.

The panel hearing Watada’s case consists of seven Army officers: five men and two women. His defense team is scheduled to begin calling witnesses on Wednesday.