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.

8 Responses to “Published ACCA double jeopardy ruling”

  1. Mike "No Man" Navarre says:

    I am all for a strong double jeopardy rule, whether constitutional, statutory, or regulatory in origin. But this decision doesn’t strike me as unjust. Tough situation, if there isn’t some gloss on the facts that the Court overlooked (which, again, doesn’t seem to be the case).

  2. Cap'n Crunch says:

    Good thing I’m not on CAAF. I’d reverse and order charges dismissed. The CA should have known he/she had witness issues prior to swearing in the panel. If the case isn’t ready to go, continue out the case for witness availability. Notwithstanding the UCMJ issue, when jeapoardy attaches is clear. The manifest necessity did not arise after empanelment and swearing — it was present prior to that point in time.

  3. Cloudesley Shovell says:

    I have a lot of sympathy for No Man’s position, but I have to agree with Cap’n Crunch. The gov’t should have known of the witness issues long before the first group of members was empaneled and sworn.

    I am also wondering why the gov’t built itself a case that was contingent on deployed witnesses. All they needed was a couple witnesses who they knew would remain in Ft Stewart personally witness the accused refuse to obey the order to deploy, and otherwise witness the fact that he did not get on the airplane.

    The ACCA opinion just says that the two deployed witnesses were key witnesses, without saying why they were key witnesses. The elements of missing movement are pretty simple; why no other witnesses were available to testify on the elements of the offense is a factual question missing from the opinion. (Perhaps, No Man, that’s the gloss you were referring to–ACCA seems to accept at face value the gov’t’s assertion that these were key witnesses without really testing that assertion.)

  4. Mike "No Man" Navarre says:

    Admiral–
    That may be the case. And if the problem with the deposition s was known well before they empaneled the members, well then I’d have to re-evaluate the decision. The opinion doesn;t seem to articulate the facts as if that was the case. Again, that may be because that’s how the facts actually played or a little result oriented writing. But, as the facts stand as written, I’ll stick by my first comment.

  5. k fischer says:

    Too bad the Defense did not get an exhibit pre-admitted. But, the rule appears to be clear that up until evidence is heard, the Government can dismiss.

  6. Cap'n Crunch says:

    Irrespective of the rule set forth in the UCMJ, we have to consider the fact that Constitutional provisions apply in military law. “Men and women in the Armed Forces do not leave constitutional safeguards and judicial protection behind when they enter military service.” United States v. Mitchell, 39 M.J. 131, 135 (C.M.A. 1994). CAAF has consistently applied the Bill of Rights to members of the Armed Forces, except in cases where the express terms of the Constitution make such application inapposite. See United States v. Jacoby, 11 C.M.A. 428, 430-31, 29 C.M.R. 244, 246-47 (1960)(“[I]t is apparent that the protections in the Bill of Rights, except those which are expressly or by necessary implication inapplicable, are available to members of our armed forces.”).

    So, I would argue, notwithstanding UCMJ Article 44, Constitutionally jeopardy attached at the time the panel was sworn (compared to a trial before a military judge alone, when jeopardy attaches at the introduction of evidence), and, as a consequence, the charges must be dismissed.

  7. stewie says:

    Well, this is all just prelude to CAAF anyways. :)

  8. Dew_Process says:

    Cap’n Crunch is right on – There is both a constitutional protection under the Fifth Amendment, as well as the statutory protection under Article 44. A military accused gets the benefit of both.

    This is quite similar to the argument the federal court rejected in Watada II, 2008 WL 4681577, where that court rejected the Government’s “taking a chance” gambit: “In finding a double jeopardy violation, the Supreme Court reasoned that the prosecutor had taken “a chance” in allowing the jury to be empaneled without confirmation of his witness’s presence.” Slip Opn.*15.

    And as Stewie suggests, “stay tuned!”