They slipped one through. Last Thursday CAAF granted a petition for a non Fosler case.
No. 12-0053/AR. U.S. v. Richard L. EASTON. CCA 20080640. Review granted on 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.
ACCA’s opinion in 1stLt Easton’s case is here at United States v. Easton.
The error assigned at ACCA was stated as:
THE MILITARY JUDGE ERRED IN RULING THAT APPELLANT’S TRIAL DID NOT VIOLATE HIS CONSTITUTIONAL RIGHT AGAINST DOUBLE JEOPARDY.
An important question will be when does jeopardy attach, and if it attaches according to Article 44, UCMJ, is that Article unconstitutional. Another question will be what meaning and affect is there to a withdrawal of charges for “manifest necessity.”
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,
the 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?