How “integral” does an “integral part” of a constitutional guarantee have to be for CAAF to find a contrary provision in the Uniform Code of Military Justice to be unconstitutional? In its opinion in United States v. Easton, No. 12-0053/AR, the court gives an answer that essentially amounts to “more integral than this.”

Article 44(c), UCMJ, 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.

But Article 44(c) was last amended in 1956, and the Supreme Court decided in 1978 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).

So what happens when a case is terminated during that short time after the “jury is empaneled and sworn” (Crist) but before “the introduction of evidence” (Article 44(c))? “[J]udicial deference [reaches] its apogee,” (Slip op. at 22 N.12) writes Chief Judge Baker, for a near-unanimous court, finding “that Congress appropriately exercised its Article I power . . . when it enacted Article 44(c), UCMJ” (Slip op. at 22).

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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.

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:

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Links to the audio of this week’s oral arguments:

• United States v. Easton, No. 12-0053/AR

• United States v. Cooper, No. 12-6004/AR

• United States v. McClain, No. 12-0099/AR

On Thursday, CAAF granted review of this 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.

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 here.  United States v. Easton, 70 M.J. 507 (A. Ct. Crim. App. 2011).

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.