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Originally published February 8, 2007 at 12:00 AM | Page modified February 8, 2007 at 10:59 AM

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Watada case mistrial declared

Before his court-martial began this week, 1st Lt. Ehren Watada was packing boxes at his Olympia apartment in preparation for a guilty verdict...

Seattle Times staff reporter

FORT LEWIS — Before his court-martial began this week, 1st Lt. Ehren Watada was packing boxes at his Olympia apartment in preparation for a guilty verdict and prison term.

Instead, the trial ended Wednesday as a mistrial when a judge rejected statements in a crucial pretrial agreement as unintended admissions of Watada's guilt. It is now unclear when — or even if — the 28-year-old Army officer will be tried on charges of missing a troop deployment to Iraq and officer misconduct.

Watada could face a new court-martial as early as mid-March and up to six years in prison rather than the four years at risk in this week's trial.

But Watada's defense team hopes the mistrial will give ample legal ammunition to get the case dismissed or to reach a settlement with Army prosecutors.

"It is our fervent hope that we can resolve this case without ever going back to court," said Eric Seitz, Watada's civilian counsel.

It was a surprise conclusion to a three-day trial marked by sharp clashes between Seitz and Military Judge John Head, who made a concerted effort to head off what he ruled was irrelevant testimony about the legality of the Iraq war that he had stated was for Congress, not courts, to decide.

Army officials portrayed the outcome as evidence of the military's effort to ensure a fair trial for the accused. Seitz said the government's case was deeply flawed because the judge had ruled that Watada could not fully explain his views to the panel.

Watada entered a plea of not guilty to all charges.

The court-martial unraveled over Head's misgiving about a 12-page agreement that Watada signed in January in a deal that cut two years off his possible sentence. In that agreement, Watada confirmed that he intentionally missed his brigade's deployment and signed a counseling agreement that acknowledged the "requirement to deploy," according to a copy of the agreement obtained by The Seattle Times.

The defense and prosecution teams both believed the agreement did not constitute an admission of guilt. But the judge on Wednesday said the agreement included all the elements required to find Watada guilty. It was more than an agreement, Head said: It was what he termed a "confessional stipulation," with whatever reasons behind the action irrelevant to the question of guilt.

The judge was troubled by Seitz's request to put the motivation for Watada's action — his belief that the war was illegal — into instructions that would be sent to the jury.

While the panel remained outside the courtroom, the judge asked for permission to question Watada for a second time — the first time was Monday — about the agreement.

"You are not authorized to ask my client questions any time you choose to do so," Seitz said as he leaped to his feet to rebuff the judge's request.

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Head said he needed to talk to Watada, otherwise he might void the agreement. He told Seitz to sit down.

"You are talking to me, I'll stand," Seitz said.

"Sit down," the judge said.

Seitz took his seat. Then, after the break, he agreed to allow the judge to ask about the agreement.

"What do you mean, you intentionally missed the troop movement?" Head asked, referring to the agreement.

"What I was saying was that I intentionally missed the movement because I felt like participating in that movement would make me a participant in war crimes and an illegal war. ... I have always believed that I had a legal and moral defense," Watada told the judge. "I realize that what the government is arguing is contrary, but that does not negate that belief."

The judge was troubled by Watada's refusal to accept the statement as admitting all the elements of the charge.

"I'm not seeing we have a meeting of the minds here," Head said. "And if there is not a meeting of the minds, there's not a contract. Tell me where I'm missing something?"

A prosecutor, Capt. Scott Van Sweringen, asked for the judge to accept the agreement. The court-martial would then have moved on with the final phases of the trial — the defense case, closing arguments and deliberations by the panel.

But the judge rejected the agreement.

Prosecutors could have tried to move ahead with a disputed document that already had been handed out to the jury panel.

Instead, they chose to request a mistrial, which the judge quickly granted.

After the trial, Watada returned to his desk job at Fort Lewis, while his family joined supporters at a hotel gathering near the base.

"I am relieved because we were prepared for incarceration," said Carolyn Ho, Watada's mother. "That was pretty much the expectation by week's end."

Hal Bernton: 206-464-2581 or hbernton@seattletimes.com

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