On Thursday, CAAF granted review of this issue:


United States v. Easton, __ M.J. __, No. 12-0053/AR (C.A.A.F. Dec. 15, 2011).  We discussed ACCA’s published decision in the case hereUnited States v. Easton, 70 M.J. 507 (A. Ct. Crim. App. 2011).

5 Responses to “CAAF grants review of double jeopardy issue”

  1. Phil Cave says:

    “On 16 July 2007, the panel for the first court-martial was sworn and assembled. The parties conducted voir dire, the military judge ruled on challenges, and the court recessed shortly thereafter the same day.  No evidence was introduced, and no opening statements were given.  On 18 July 2007, the convening authority withdrew and dismissed the charges from the first court-martial.”

    Here appears to be the reason for the manifest necessity, is it?

    “On 16 July 2007, the court was assembled in the original case in these proceedings. At the time, two witnesses with firsthand knowledge, Lieutenant Colonel [(LTC) O.] and Major [(MAJ) E.], both were stationed in Iraq. [LTC O.]”

    And this was apparently known to the government, because,

    “[T]he judge at the time [but it seems a time earlier than 16 July], and under reasonable conditions, found both witnesses unavailable. As a result, the judge ordered depositions of both witnesses.”

    Which apparently were done prior to the 16 July trial date.  But,

    “Immediately prior to the trial [on 16 July] after the depositions, it was discovered that the depositions somehow did not make it back from Iraq.  (In a footnote the court notes that the CD’s made it back, but were useless.) [Query, did someone check on that prior to 16 July?]”

    So, assuming I have the timing correct, if that was the state of play on 15 July, why did the government and the military judge start the court?  Would not 15 July be the right time to withdraw charges and thus avoid even the potential for a double jeopardy claim?  But having “begun” on 16 July knowing there was no evidence to produce, is there then manifest necessity for withdrawal?  If they’d empaneled the members, broke for the evening, and during the night the prime witness was involved in car accident and hospitalized, that’s manifest and necessary to the prosecutions right to a fair trial, and different to what the scenario appears to be in Easton.

  2. Phil Cave says:

    I wanted to revise and extend my remarks above.

    Above I focused on what I perceive as a lack of “manifest necessity” to terminate the proceedings (admittedly based on the facts from ACCA’s opinion and not the whole record).  And here’s my reasoning.

    In courts not bound by the UCMJ the rule is that jeopardy attaches, “where the defendant is tried by a jury . . . when a jury is empaneled and sworn,”  Easton, Slip op. at 5.  That is what happened in this case.  Under Article 44, jeopardy attaches, “after the introduction of evidence.”  Id.  That raises the question addressed by ACCA regarding the constitutional question of, “an apparent conflict” between the DJC and Article 44.

    There is a general prudential principle (I think flowing from the no advisory opinion principle) that appellate courts will not reach or decide a case on constitutional grounds if there is an available non-constitutional basis to decide the case.  Thus appellate courts seek  to avoid ruling on constitutional issues if they don’t have to.  ACCA got to the constitutional question because they were satisfied there was manifest necessity, so that required them to visit the constitutional question.  CAAF doesn’t have to do that.

    Applying the other grounds principle the CAAF can resolve this case by finding no manifest necessity.  By doing that CAAF doesn’t have to decide in this case whether or not Article 44 is constitutional, they can kick the can down the road. 

  3. Dew_Process says:

    The secret of success here will be distinguishing the facts here from Wade v. Hunter, 336 U.S. 684 (1949), a WW II, military “manifest necessity.”  Losing depositions enroute to Fort Steward is a far cry from the facts in Wade.  Easton did not claim as far as I can tell (and ACCA rejected in any event) a violation of Art. 44 – this is purely an issue of constitutional interpretation under the Former Jeopardy Clause.  Congress enacted Article 44 as a compromise because at the time, Wade was a pretty radical decision – charges there were withdrawn after closing arguments while the members were deliberating.  The “manifest necessity” concept arose in U.S. v. Perez, 22 U.S. (9 Wheat.) 579 (1824), where after hung jury, Perez objected on former jeopardy grounds to his re-trial.

    While Congress is certainly free to utilize different procedures for courts-martial, the issue is better framed by the Watada litigation (ironically, another officer refusing to deploy to Iraq), where that Court focused on the government’s conduct in “taking a chance” i.e., a second bite of the proverbial apple.  That didn’t go well for the Government there, and they subsequently withdrew the appeal.

    DISCLOSURE:  I was a consultant in Watada.

  4. A. Hernandez says:

    We had a guilty plea that started at 1300 hours and at 1700 hours was continued to the next morning.  Providence was done and the judge found the accused guilty and continued the case for sentencing.  The next morning nothing from the previous day had been recorded.  DC argued that the court was limited to a max of 6-months in jail.  Govt. moved for a mistrial over defense’s objection and double jeopardy argument/motion. Judge granted the mistrial. DC prepared and filed at ACCA (DAD had refused to prepare the writ) and ACCA ordered a stay and asked for the ROT, then denied the motion.  At re-trial, DC made a double jeopardy motion to a different judge, which was denied. This case is still making its way to ACCA.

  5. k fischer says:


    Nicely done, although I have to think that you failed to make it on the Military Judge’s Christmas list.