176 MILITARY LAW REVIEW [Vol. 219
THE MILITARY’S DILUTION OF DOUBLE JEOPARDY:
WHY UNITED STATES v. EASTON SHOULD BE
MAJOR ROBERT D. MERRILL*
The federal rule that jeopardy attaches when the jury is empaneled and
sworn is an integral part of the constitutional guarantee against double
For over thirty years, Supreme Court case law on Double Jeopardy
stood in stark conflict with the military’s double jeopardy clause found in
Article 44, Uniform Code of Military Justice (UCMJ). In 1978, in Crist
v. Bretz, the Supreme Court held that the Double Jeopardy Clause of the
Fifth Amendment mandates that jeopardy attach upon a jury being
empaneled.2 The Court explained that a defendant’s interest “in retaining
a chosen jury . . . is now within the protection of the constitutional
guarantee against double jeopardy.”3 Yet Article 44, the double jeopardy
clause of the UCMJ, states that jeopardy attaches “after the introduction
of evidence.”4 On June 4th, 2012, the Court of Appeals for the Armed
Forces (CAAF), in the case of United States v. Easton, held that despite
this conflict, Article 44 is constitutional.5 In Easton, the CAAF rescued
Article 44 by casually dismissing the defendant’s interest “in retaining a
chosen jury” as inapplicable to the military.6
* Judge Advocate, United States Marine Corps. Presently assigned as Senior Defense
Counsel, MCB Camp Pendleton, California. LL.M., 2013, The Judge Advocate
General’s School, United States Army, Charlottesville, Virginia; J.D., 2008, Harvard
Law School; B.A., 2001, University of Chicago. Previous assignments include Staff
Judge Advocate, U.S. Marine Corps Forces, Central Command (FWD), NSA Bahrain
(2011–2012); Trial Counsel, Marine Corps Air Ground Combat Center, 29 Palms,
California (2008–2011); Battalion Judge Advocate, 3d Battalion, 7th Marines, Helmand
Province, Afghanistan (2010); Rifle Platoon Commander and Rifle Company Executive
Officer, 1st Battalion, 3d Marines, Kaneohe Bay, Hawaii (2002–2005). Member of the
New York bar. This article was submitted in partial completion of the Master of Laws
requirements of the 61st Judge Advocate Officer Graduate Course.
1 Crist v. Bretz, 437 U.S. 28, 38 (1978).
3 Id. at 36.
4 UCMJ art. 44 (2012).
5 United States v. Easton, 71 M.J. 168, 170 (C.A.A.F. 2012).
6 Easton, 71 M.J. at 174.
2014] DOUBLE JEOPARDY & UNITED STATES V. EASTON 177
Six months later, the Supreme Court denied Easton’s petition for
certiorari.7 This article argues that Congress should amend Article 44 to
align with civilian law. Not only was Easton decided on faulty logical
grounds, but it also set a dangerous precedent in which the CAAF was
permitted to ignore the Supreme Court’s interpretation of a core
constitutional right, and on the flimsiest of justifications. This article
first introduces Easton’s facts, holding, and logic. Then, the article
examines Easton’s failings. First, the CAAF erroneously concluded that
Congress did not intend for the attachment standards mandated by Crist
to apply to the military. The history of both the Double Jeopardy Clause
and the UCMJ tell otherwise. Second, the CAAF failed to confront
decades of Supreme Court case law that outline the underlying purposes
of the Double Jeopardy Clause, which run counter to Easton’s central
holding. Finally, the CAAF failed to acknowledge that a military
defendant’s interest in a particular jury is likely to be greater than that of
II. Introduction to United States v. Easton
In United States v. Easton, the CAAF confronted the
constitutionality of Article 44.8 Lieutenant Easton faced a charge of
missing movement. Prior to jury empanelment, the military judge
pointed out that two videotaped depositions were inaudible. The
government decided to proceed anyway. Voir dire took place and a
panel was sworn and assembled. However, before introduction of
evidence, the charge was dismissed. Nearly a year later, identical
charges were referred to a new court-martial. Easton was convicted of
the later charges. The Army Court of Criminal Appeals avoided the
constitutional question and held that there was manifest necessity for a
new trial, and thus there was no double jeopardy violation.9
The CAAF disagreed with the lower court and found that there was
no manifest necessity for a second trial.10 Consequently, the CAAF
directly confronted the question of whether the military is obligated to
7 Easton v. United States, 133 S. Ct. 930 (2013).
8 Easton, 71 M.J. at 174.
9 United States v. Easton, 70 M. J. 507, 513 (A. Ct. Crim. App. 2011). Manifest
necessity is the standard adopted by the Supreme Court in 1824 to measure whether a
retrial is justified due to unique or unforeseeable circumstances, such as a mistrial.
United States v. Perez, 22 U.S. 579, 580 (1824).
10 Easton, 71 M.J. at 174.