The Military's Dilution of Double Jeopardy: Why United States v. Easton Should Be Overturned

• Author: Major Robert D. Merrill
• Pages: 176-195

176 MILITARY LAW REVIEW [Vol. 219

THE MILITARY’S DILUTION OF DOUBLE JEOPARDY:

WHY UNITED STATES v. EASTON SHOULD BE

OVERTURNED

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

jeopardy.1

I. Introduction

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 InEaston, 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).

2Id.

3Id. at 36.

4 UCMJ art. 44 (2012).

5 United States v. Easton, 71 M.J. 168, 170 (C.A.A.F. 2012).

6Easton, 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’sfacts, holding, and logic. Then, the article

examines Easton’sfailings. 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

a civilian.

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).

8Easton, 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).

10Easton, 71 M.J. at 174.