(CN) – A federal judge in Washington, D.C., dismissed the indictment of five former Blackwater security guards who allegedly shot and killed 14 Iraqi civilians and wounded 20 others in an unprovoked attack at a traffic square in Baghdad in 2007, saying the government mishandled the case.
The prosecution illegally used protected statements Blackwater guards made immediately after the shooting, U.S. District Judge Ricardo Urbina ruled.
He said the prosecutorial misconduct “requires dismissal of the indictment against all the defendants.”
Five former members of U.S. security contractor Blackwater Worldwide, now called Xe Services, were charged with voluntary manslaughter and firearms violations.
Federal investigators accused Paul Slough, Evan Liberty, Dustin Heard, Donald Ball and Nicholas Slatten of the Raven 23 unit 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 ruling.
In a “reckless violation of the defendants’ constitutional rights,” Urbina wrote, the prosecution relied on statements that the guards were compelled to give to the State Department following the shootings. Those statements were protected under the Fifth Amendment and could not be used in criminal proceedings, the judge ruled.
Government prosecutors “aggressively sought out” these statements, ignoring “the warnings of experienced, senior prosecutors” who told them that it “threatened the viability of the prosecution,” the ruling states.
The prosecution ignored the advice of “taint team” attorneys who told them not to interview State Department investigators, but lead prosecutor Ken Kohl and his team ignored the warnings, later calling it a “miscommunication,” according to the ruling.
“Kohl and the rest of the trial team purposefully flouted the advice of the taint team when obtaining the substance of the defendants’ compelled statements, and in so doing, knowingly endangered the viability of the prosecution,” Urbina wrote.
Two key witnesses for the prosecution, Blackwater guards Adam Frost and Matthew Murphy, had set up Google news alerts on the Nisour Square incident and read about the statements made by their teammates in the press.
Judge Urbina found that their resulting testimony reflected their exposure to the statements. For example, Frost and Murphy initially claimed they heard pen flares during the incident, but later changed it to gunshots in their testimony, the ruling states.
Though the government insisted that it didn’t use the protected statements, Urbina said that in this case, “[t]he government asks too much.”
The government could have directed attorneys to meet with witnesses and determine the extent to which they were influenced by media reports and the guards’ statements, the judge said.
“At a bare minimum, the government’s trial team could have advised the witnesses in October 2007 not to seek out press reports containing the defendants’ compelled accounts to Diplomatic Security Service investigators,” Urbina wrote. “The prosecutors and investigators in this case took none of these precautions and the result was a clear violation of the defendants’ constitutional rights.”
The testimony of Iraqi witnesses was tainted, too, Urbina ruled, citing a widely reported account from an Iraqi shot at the square who said, “It is not true when they say that they were attacked. We did not hear any gunshots before they started shooting.” The judge concluded that this was clearly in response to media reports.
He added that the journal of Frost, a Raven 23 member, was also tainted, because it was written in response to news reports and guard statements. Even physical evidence at the site of the shooting was tainted, the judge ruled, because federal investigators had interviewed four Blackwater guards who admitted during State Department briefings that they had fired weapons, and then used that information to conduct the investigation.
The use of the compelled statements was not harmless error, the district court ruled.
“[F]ar from being unimportant and insubstantial, the defendants’ compelled statements pervaded nearly every aspect of the government’s investigation and prosecution, and the government’s use of those statements appears to have played a critical role in the indictment against each of the defendants,” the ruling states.
“Given the prosecution’s early, ongoing and intentional immersion in the defendants’ compelled statements, the government bore the burden of demonstrating that it made no significant nonevidentiary use of the defendants statements.
“The government’s utter failure to meet this burden requires dismissal of the indictment against all the defendants,” Urbina ruled.
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