The Justice Department's appeal of the dismissal of charges in the Blackwater manslaughter prosecution in Washington is in its infancy, but there are already signs of just how heated the appeal will be as the government tries to salvage the case.
Yesterday, the Justice Department filed under seal its draft of a 34,000-word brief, far longer than the U.S. Court of Appeals for the D.C. Circuit typically permits. The defense lawyers for the accused guards argue the government should be limited to 18,000 words.
The defense lawyers, including Steptoe & Johnson’s Bruce Bishop, said today in court papers in the D.C. Circuit that the DOJ’s “oversize draft was neither solicited by the court nor permitted by the rules.” The DOJ is appealing a trial judge's ruling that the government improperly used compelled statements in securing an indictment against the former security guards.
But Bishop doesn’t just slam DOJ for allegedly skirting circuit rules.
The defense lawyers charge that the government is presenting a new argument for the first time on appeal: that the evidence against the guards, charged with killing 17 unarmed Iraqi civilians in a shootout in Baghdad, is so overwhelming that any violation of the use of compelled statements is harmless.
Bishop also said the government is writing at length in part to “vindicate the prosecutors’ reputations” against allegations the government investigated and prosecuted the case recklessly.
The Justice Department, according to the defense lawyers, “spends pages and pages minutely detailing the blood and gore of its factual allegations.” The defense lawyers say the recitation of the alleged atrocity isn’t relevant to the ruling by Judge Ricardo Urbina that is under appeal. Urbina of the U.S. District Court for the District of Columbia dismissed the indictment in a 90-page decision last December.
“[H]uge swaths of the draft are improperly devoted to subjects that are irrelevant, inflammatory, not in dispute or not presented” in the trial court, Bishop said in court papers.
Justice attorney Demetra Lambros of the criminal appellate section said in court papers this month that the D.C. Circuit needs an understanding of the grand jury testimony in the case since the government is making a claim that any error in the presentation of alleged tainted testimony was harmless.
The government’s presentation in court papers, Lambros said, is “necessarily detailed and fact-intensive” in order to show that Urbina made a mistake in assessing, among other things, the credibility of statements from key witnesses, including several of the defendants’ fellow security guards.
“While every case is of course important in its own way, this case is uniquely so,” Lambros said in court papers May 7. “The district court dismissed an indictment against five defendants who, in our view, tragically and unjustifiably killed or wounded 34 innocent Iraqi civilians.”
The DOJ also filed an unauthorized oversized brief in support of its motion to dismiss our case charging the FBI with violating the Clean Water Act by discharging lead munitions into Lake Michigan. It seems the DOJ can ride roughshod over court rules and opposing party's rights whenever it feels it necessary.
DOJ attorneys also advanced legal arguments that we had no standing 13 miles south of the range because they claim there are discrete areas of the lake. We countered Lake Michigan rotates counterclockwise and lead pollutants would therefore travel towards our drinking water. The Seventh Circuit panel asked the DOJ appellate attorney point blank if she was aware of lake rotation and she claimed to not be aware. It turns out the DOJ withheld a document ordered by the district judge to be turned over showing the government (and DOJ) is aware of lake rotation. She perjured herself by denying knowledge and the DOJ obstructed justice by advancing a legal argument relying on the truth being withheld through abuse of discovery.
The FBI range is open once again and continues to violate the Clean Water Act by discharging its lead into Lake Michigan without a permit.
Pollack v. Department of Justice, Coast Guard, Navy, Marines, DoD, 577 F.3d 736 (7th Cir., 2009)(Finding we proved our case
that the FBI has violated the law for decades yet denying us
standing).
Posted by: Steven Pollack | May 15, 2010 at 12:50 AM