CAAF heard oral argument on Monday in the case of United States v. Easton, No. 12-0053/AR, which presents the following issue:
Whether the Army court erred in holding the appellant’s trial did not violate his constitutional right against double jeopardy because jeopardy did not attach and even if it did, manifest necessity justified the convening authority’s decision to withdraw charges.
The appellant, a First Lieutenant in the Army assigned as a physicians assistant, twice missed movement by design, when his unit deployed to Iraq in March 2007. He was quickly charged with two specifications of violation of Article 87, and one specification of conduct unbecoming in violation of Article 133. Arraignment occurred in June and trial was set for July 2007. In the interim, the parties went to Iraq to take videotaped depositions of two deployed witnesses who were deemed unavailable for trial. However, after returning they discovered that the videotapes contained no video and incomprehensible audio. Despite both sides knowing this, the accused entered pleas, made forum election (officer members), the members were sworn, the court-martial was assembled, and voir dire of the members was conducted. The court then recessed for two days. During that recess, the convening authority withdrew and dismissed the charges without prejudice, and without written explanation.
In March 2008 the appellant was again charged with two specifications of missing movement by design in violation of Article 87, as well as one specification of disobeying a lawful order and one specification of adultery in violation of Articles 90 and 134. He made motions for dismissal due to improper withdrawal and double jeopardy, both of which were denied. He was then convicted, by the military judge sitting as a general court-martial, of the two violations of Article 87, and sentenced to confinement for 18 months and a dismissal. The convening authority reduced the confinement to ten months in clemency.
The Army CCA, in a published opinion, found that there was “a manifest necessity for the convening authority’s actions,” based upon the unusable deposition recordings. United States v. Easton, 70 M.J. 507, 512 (A. Ct. Crim. App., 2011). The court wrote:
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.
Before CAAF, the appellant asks that the court find that (1) in a members case jeopardy attaches when the panel is assembled and sworn, and/or (2) that the Army court erred in finding manifest necessity for the withdrawal. Article 44(c) states:
A proceeding which, after the introduction of evidence but before a finding, is dismissed or terminated by the convening authority or motion of the prosecution for failure of available evidence or witnesses without any fault of the accused is a trial in the sense of this article.
Article 44(c) was last amended in 1956, however in 1978 the Supreme Court decided that “the federal rule that jeopardy attaches when the jury is empaneled and sworn is an integral part of the constitutional guarantee against double jeopardy.” Crist v. Bretz, 437 U.S. 28, 38 (1978). Thus, the appellant’s claim is a constitutional attack on Article 44(c) as insufficient under the Fifth Amendment.
The government’s position is that the court need not decide the constitutional question because the withdrawal was required by manifest necessity and military exigency. On the constitutional question, the government urges the court to apply a balancing test derived from Middendorf v. Henry, 425 U.S. 25 (1976) (finding no constitutional right to an attorney at a summary court-martial), and to defer to Congress on this matter.
At oral argument, the appellant’s counsel quickly argued that the rule announced by the Supreme Court in Crist is a “sweeping constitutional decision,” and that Congress, even acting pursuant to its Article I authority to regulate the land and naval forces, cannot draw the line for double jeopardy in a place later than at the point where the members are sworn and assembled. Article 44(c), she argued, at most applies only to judge-alone cases. Judge Erdmann, beginning at about the 6:00 mark in the audio, inquired into the rationale for the timing of the attachment of jeopardy, eventually asking if the evil isn’t when the prosecution is unhappy with the jury and withdraws the charges to try and get a better panel. “And so do we have that same rationale in the Uniform Code of Military Justice, in the selection of court members,” he asked, also noting that the convening authority picks the members in the first place. “Absolutely,” agreed the appellant’s counsel.
The Chief Judge asked numerous questions about the significance of Congress’ failure to act to change Article 44(c) in the many years since Crist was decided, but the appellant’s counsel urged no interpretation from this fact. On the question of manifest necessity, she pointed to the total lack of evidence in the record of any finding of manifest necessity by the convening authority. However, she distanced the appellant’s position from any argument that deployment of witnesses cannot, per se, constitute manifest necessity for a withdrawal.
Counsel for the government began with the argument that any change to the point where jeopardy attaches in a court-martial should come from Congress, noting that the Supreme Court stated no intent to apply Crist to courts-martial. He also argued that changes in military members are far more likely (for military reasons) than changes in civilian juries. Judge Stucky, noting that the Supreme Court established a “regime of national uniformity on this particular question,” asked, “why should the Code be any different?” The government’s counsel responded that the underlying rationale in Crist – that a defendant has an interest in a particular jury – is inapplicable in the military context because of the likelihood of modification of the panel due to military exigency.
The government’s counsel noted the ability of the convening authority, under Article 29, to modify the number of members in the panel, removing members for military exigency and not replacing them. He also emphasized, in response to a question from the Chief Judge, that the convening authority need not find manifest necessity, but merely good cause, to remove a member under Article 29. His argument seemed to imply, but he didn’t expressly state, that were the court to adopt the rule in Crist, the ability to remove a member under Article 29 may be impaired.
On the question of manifest necessity, the government’s counsel had a difficult time, as the court questioned the convening authority’s (true) reason for withdrawing the charges, since there was no evidence of his reasoning in the record.
In rebuttal, the appellant’s counsel argued that adopting the Crist rule would have no impact on the ability to remove members under Article 29. She also argued that since the double jeopardy rule undoubtedly applies in members cases, the only question is one of timing, for which all of the government’s arguments are “superfluous.”