CAAF issued its opinion in Easton today.  United States v. Easton, __ M.J. __, No. 12-0053/AR (C.A.A.F. June 4, 2012).  It disagreed with ACCA as to whether the withdrawal of charges was justified by manifest necessity, but concluded that under Article 44, jeopardy had not yet attached, hence there was no double jeopardy violation in the case.  It therefore affirmed ACCA’s decision.

Chief Judge Baker wrote for the majority.  Judge Erdmann dissented, concluding that Article 44 is unconstitutional as applied in this case.

4 Responses to “CAAF decides Easton”

  1. Dew_Process says:

    If my memory serves me right (and it may not), this case would appear to conflict with the Watada litigation in federal court, where the USDJ found no “manifest necessity” for granting the mistrial in Watada’s court-martial and thus, jeopardy barred a new court-martial.  Of course, the panel had heard evidence in Watada but if there was no manifest necessity and thus former jeopardy attached, logically speaking, why should the result be any different here?

    While I quickly skimmed the opinion, I didn’t see any discussion on alternative remedies that would not have triggered jeopardy concerns, e.g., they could have ordered a continuance in the original court-martial and re-done the depositions and then re-convened.

    Absent a request for reconsideration, I suspect we’ll see a cert. petition in about 90 days.

  2. stewie says:

    Interesting, so this is a case, unlike the last one we debated for awhile earlier, where the RCM (aka the President’s rules) supersedes not merely Congress, but the Supreme Court. ;)
    That aside, I think I agree with the majority that the Accused’s right to a panel is somewhat different from a Defendant’s right to a jury, although the dissent gives me pause.

  3. Dew_Process says:

    Having read the decision in more detail last evening, it may qualify for the most poorly written decision of the year, regardless of which side of the legal debate you’re on.  I.e., it they can’t get the “facts” straight, how can the legal analysis be worth anything?

    The opinion starts out, “A military judge sitting as a general court-martial . . . convicted appellant. . . .” [Slip Opn. 2]

    However, on page 3, the opinion says, “We hold that, in regards to members trials, Article 44(c), UCMJ, is constitutional on its face . . . .”   OK, so why is that relevant in a “judge alone” case?

    Page 6:  “. . . voir dire was conducted and a panel of members sworn and assembled.”  But then in the next paragraph: 

    ” . . . Appellant was found guilty of two specifications of missing movement in a judge-alone trial.

    Finally, the considerable discussion about Special Courts-Martial without military judges is totally dicta and completely irrelevant to any discussion regarding the one clear fact here, viz., it was a GCM.

    With due respect to CAAF, its judges and personnel, this opinion is an embarrassment to the profession.

  4. C says:


    Before w/d of charges the accused’s forum choice was members.  Upon re-referral his forum choice was MJ alone seems pretty straightforward.