Eyewitness: Watada Judge Panicked and Bailed

According to reporter Bill Simpich in attendance at the trial, Lt. Ehren Watada exuded a calm and confidence that visibly shook the judge.

It's easy to see why - if he would allow the defendant to present a case that the war is illegal, it could open the flood gates for over 150,000 troops to follow suit.

Published accounts describe the reason for the mistrial stemming from Judge Lt. Col. John Head's claim that Lt. Watada did not fully understand a pre-trial stipulation he'd signed. But this was untrue - Watada kept repeating he did understand the stipulation and wanted to present his case for innocence because he felt the war was illegal.

The stipulation was a document agreeing to certain facts not in question in the case. Designed to reduce the number of witnesses and eliminate two charges against Watada, it including the "whereas" that stated Watada had not deployed with his troops. To Judge Head, this may have seemed sufficient admission of guilt - he probably never imagined Watada would have the audacity to explain why on the stand.

Simpich and others feel the judge panicked and that there was no cause to call a mistrial. Judge Head was in over his own head - he had already ruled that Watada's motive for resisting was irrelevant - in refusing to follow orders, the reasons why did not need be entered into evidence - or so the judge thought.

But this was highly controversial - several GIs in the past year have been sentenced to long prison terms for NOT disobeying orders, as in Abu Ghraib, Haditha and other incidents. Obviously, a soldier's understanding as to the legality of orders is paramount. In this trial, this means the judge would have to allow the defendant to present for the first time anywhere in court the argument the Iraq war is illegal.

When the judge reminded the defense that he had ruled that the order to deploy was legal - a strongarm tactic of sorts - defense attorney Eric Seitz made a decisive chess move, introducing a legal instruction, "Reasonable Mistake of Fact/Law". This was meant to inform the jury panel that if Lt. Watada mistakenly believed the order to deploy was illegal, the panel would have to by law decide whether that belief was "reasonable."

Visibly shaken, Judge Head claimed that introducing this instruction was in error, not realizing the panel had not heard the instruction yet. Realizing his own error, the judge questioned Lt. Watada without asking the defense for permission. With the defense's objection noted, the judge pressed Watada, repeatedly urging the lieutenant to admit he reasonably believed that he was following an illegal order.

The 28-year old officer respectfully acknowledged he understood the request, but calmly reasserted he did not deploy because he felt the war was illegal. Unsuccessful in rattling Watada, the judge suggested he might declare a mistrial. But the defense and the prosecution both told the judge that they wanted to proceed.

In another uncertain moment, the judge suggested the prosecution recall their witnesses, then suggested the pre-trial stipulation in question be withdrawn from evidence altogether. The defense was not agreeable. After conferring, the prosecution agreed to the judge's suggestion of a mistrial.

Amazingly, the defense still opposed it. Lt. Watada had prepared well, and had consistently exercised his right to free speech and a fair trial. Many thought that the early rulings preventing Watada from presenting expert witnesses to testify against Bush's war had crippled his case. But it became clear that Lt. Watada was willing to take the stand himself to explain why he felt the war was illegal.

After several clashes of will, the judge, seemingly desperate to prevent this testimony declared a mistrial - over the refusal of the defendant.

Watada's fate remains now unclear. He may be indemnified due to double jeopardy rules, but could also be dishonorably discharged. Certainly this round goes to his supporters, but a conspicuous back-page burial or altogether media blackout has minimized impact during the immediate 24 hours.

The Army will have to deal with this issue backfiring badly - can you court martial an officer without allowing him his day in court? Apparently not. Official post-trial statements were made by both sides, with the Army reiterating the stipulation agreement was the sticking point, but somewhat glossing over the details. Defense counsel Seitz announced he had no idea what the judge was thinking and felt that the Army had made a mess of the case.

For those that still may be confused, Bill Simpich's explanation might be the clearest available: The judge asserted that the statements in the pre-trial stipulation agreement amounted to an admission of guilt by Watada, going so far to refer to it as a "confessional stipulation". He seemed to believe that signing the document precluded Watada from testifying further on the issue of missing the troop movement, as if anyone pleading innocent would sign such a document.

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