High Court to Consider Sealed Blackwater Filing

(CN) - The Supreme Court on Monday agreed to accept a petition filed under seal from four former Blackwater security guards charged with firing indiscriminately at Iraqi civilians in Baghdad several years ago, killing 14 and wounding 20 others.

Paul Slough, Evan Liberty, Dustin Heard and Donald Ball hope to convince the justices to dismiss the indictments on the basis of prosecutorial misconduct, as a federal judge had done in January 2010. U.S. District Judge Ricardo Urbina said that the evidence collected against the men was tainted by exposure to immunized statements.

But the D.C. Circuit disagreed in April 2011, chastising Urbina for making "a number of systemic errors based on an erroneous legal analysis." That latest ruling contained a series of redactions so as to not "spread 'taint' from statements of defendants that are deemed compelled," according to the court. The appellate judges noted that such interests will likely become moot "in due course."

Five former members of U.S. security contractor Blackwater Worldwide, now called Xe Services, were originally charged with voluntary manslaughter and firearms violations. Earlier in the proceedings, prosecutors voluntarily dismissed the indictment against the fifth alleged co-conspirator, Nicholas Slatten. Since the charges were dismissed without prejudice, the government may file new charges against him at a later date.

Members of the Blackwater's Raven 23 unit, the defendants are accused of firing indiscriminately at Iraqi citizens in a traffic circle near Nisour Square on Sept. 16, 2007.

The guards claimed they were under insurgent attack, but U.S. military officials later found no evidence of insurgent activity, according to the D.C. Circuit. Before the shooting, a car bomb had exploded near the Izdihar Compound in Baghdad. A different Blackwater team had entered the scene to evacuate a nearby U.S. diplomat who had been meeting with Iraqi officials. Raven 23 arrived to block traffic at the Nisur Square traffic circle so that the diplomat could get through safely.

"Shots were fired; the dispute over who fired at whom and when is the substantive crux of the criminal case underlying this appeal," Senior Judge Stephen Williams wrote for the D.C. Circuit panel. "When the shooting stopped, 14 Iraqi civilians were dead and 20 wounded."

Over the next few hours, the 19 members of Raven 23 gave brief statements to the Department of State's Diplomatic Security Service. Two days later, the team submitted immunized statements.

As the media caught wind of the attack, scrutiny on Blackwater's alleged misconduct grew and certain outlets obtained leaked copies of the men's statements.

"The witnesses that the government relied on most heavily before the grand jury - Raven 23 members Adam Frost, Matthew Murphy and Mark Mealy - admitted to having read these news reports, and it soon became apparent that parts of their testimony may have been tainted by their exposure," Williams wrote in April. "In an effort to safeguard its case, the government decided to present a redacted case to a second grand jury, which returned an indictment against the defendants, finding that there was probable cause to believe that defendants committed (and attempted to commit) voluntary manslaughter and weapons violations."

Urbina had found that the prosecution illegally used the guards' protected statements, but the appeals court found that Urbina failed to sift through the material.

"This sifting is particularly important in cases where, as here, a witness was exposed to a defendant's immunized statement but testifies to facts not included in that statement," Williams wrote. "In sifting the record as to taint of the evidence before the indicting grand jury, the district court made a number of systemic errors based on an erroneous legal analysis."

"First, the district court erred by treating evidence, including the testimony of Frost, Murphy, Ridgeway and the Iraqi witnesses, and the Frost journal, as single lumps and excluding them in their entirety when at the most only some portion of the content was tainted - it made no effort to decide what parts of the testimony or the journal were free of taint," the 15-page ruling states. "Even in instances where there could be no possible claim that the immunized statements caused the witness to speak up (as in some variant of the McFarlane instance), the district court found that the government had failed to fulfill its burden; yet the court never identified what the government could have done besides pointing to the complete absence of overlap, or why it should have been required to show more." (Parentheses in original.)

Besides the men's immunized statements, "many of the news reports were based on the State Department spot and incident reports, which, in turn, were in part based on statements by all 19 guards ([ Redacted. ]), not simply the five defendants' immunized statements." (Emphasis and redaction in original.)

"Where two independent sources of evidence, one tainted and one not, are possible antecedents of particular testimony, the tainted source's presence doesn't ipso facto establish taint," the ruling later states.

Urbina was also "surely wrong" to exclude physical evidence that the government collected, Williams continues.

"We further note that the district court lumped physical evidence collected by the DSS under the non-evidentiary-use rubric and found it to be tainted," the ruling states, using the acronym for the Diplomatic Security Service. "Insofar as physical evidence was presented to the grand jury, that classification is surely wrong - if the immunized statements led to discovery of physical evidence that was before the grand jury, it should be analyzed as an evidentiary use. ... If the excluded physical evidence was not presented to the grand jury, as the government's briefs suggest, then the district court's consideration and exclusion of that evidence appears premature."

The federal appeals court had directed Urbina to "determine, as to each defendant, what evidence - if any - the government presented against him that was tainted as to him, and, in the case of any such presentation, whether in light of the entire record the government had shown it to have been harmless beyond a reasonable doubt."

Now, however, the defendants can file a petition for writ of certiorari under seal with redacted copies for the public record. Justice Elena Kagan did not take part in the consideration or decision of the case.

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