Under Article 44 of the UCMJ, jeopardy attaches upon “the introduction of evidence.” In civilian trials, jeopardy attaches for Fifth Amendment purposes “when a jury is empaneled and sworn.” Serfass v. United States, 420 U.S. 377, 388 (1975).
In United States v. Easton, __ M.J. __, No. ARMY 20080640 (A. Ct. Crim. App. July 28, 2011), the convenng authority withdrew and dismissed charges after the members panel was sworn and assembled, but before opening statements and the introduction of evidence. The CA subsequently referred the same charges, plus others, to another court-martial. On appeal, the defense argued that Article 44’s trigger for jeopardy was unconstitutional and that the military must follow the same “empaneled and sworn” rule that applies in civilian courts. ACCA, however, side-stepped that constitutional challenge, holding that while jeopardy had attached at the first trial, it had never terminated, thus allowing the accused to be tried by a second court-martial without implicating the double jeopardy protection.
ACCA reasoned, “In general, jeopardy will terminate, and therefore preclude a subsequent court-martial, where charges are dismissed. But where a manifest necessity exists to dismiss charges, then jeopardy does not terminate.” Id., slip op. at 8. “‘[M]anifest necessity’ refers to the magnitude of the circumstances that justify discontinuing a trial without terminating jeopardy. The term ‘manifest necessity’ does not equate to irresistible compulson, but instead means there is a ‘high degree’ of need for the action taken.” Id. (internal citations omitted).
ACCA found such “manifest necessity” existed:
[T]his case demonstrates a manifest necessity for the convening authority’s actions. Appellant’s unit was ordered to Iraq as part of a surge of forces designed to quell the deadly violence in that country. Appellant’s crime was for intentionally missing movement to Iraq for this operation. As appellant’s case neared trial, it became clear that operational requirements would prevent the return of some members of appellant’s unit that possessed knowledge about the circumstances of the case. Thus, due to the very nature of appellant’s crime and the ongoing operations in Iraq, two witnesses were unavailable for trial. The government still made efforts to prosecute appellant’s first court-martial and secured depositions of the unavailable witnesses, but the depositions were inoperable.
. . . .
[O]perational considerations drove the convening authority’s decision to terminate appellant’s first court-martial. Moreover, there is no evidence that the convening authority acted in bad faith when he made an informed decision to withdraw the charges from that court-martial.
The convening authority’s broad discretion must temper our analysis in this case. No evidence had been introduced at appellant’s first court-martial, and appellant’s unit, which included the witnesses against him, was engaged in combat in Iraq. Instead of pursuing withdrawal of these witnesses from Iraq, the convening authority withdrew the charges from the court-martial. Absent evidence of bad faith, we will not second-guess the convening authority’s tactical decision to withdraw charges here, especially when buttressed by the record of trial and the military judge’s thorough findings of fact.
Id., slip op. at 10-11 (footnote omitted).
Senior Judge Johnson wrote for a unanimous panel.