Updated 11:43 a.m.
A federal appeals court today reinstated the prosecution of a group of Blackwater security guards charged in Washington with manslaughter and weapons violations for their alleged roles in a shooting in Baghdad that killed more than a dozen civilians.
In December 2009, Judge Ricardo Urbina of U.S. District Court for the District of Columbia dismissed the Justice Department prosecution of five guards, saying the prosecution was tainted through the improper use of compelled statements the defendants made to investigators following the shooting in September 2007. DOJ appealed the ruling.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously reversed Urbina’s decision, sending the case back to the trial court for further hearings. The appeals court’s 17-page redacted opinion is here. (The court simultaneously filed a confidential opinion under seal. The court heard oral argument in a closed session in February.)
Lawyers for the guards were not immediately reached for comment this morning. Steptoe & Johnson counsel Bruce Bishop argued for the guards, collectively, and the Justice Department’s Demetra Lambros of the Criminal Division appellate section represented the government. “We’re pleased with the ruling and are assessing the next steps,” DOJ spokesman Dean Boyd said.
After the fatal shooting, the Blackwater guards provided sworn written statements to the State Department on forms that included a guarantee that the information would not be used in a criminal proceeding. Urbina found disclosure of the defendants' statements tainted much of the evidence federal prosecutors presented to a grand jury.
The D.C. Circuit remanded the prosecution with instructions for Urbina to determine what evidence the government presented against each defendant that was tainted and “in the case of any such presentation, whether in light of the entire record had shown it to have been harmless beyond a reasonable doubt.”
The panel judges—Senior Judge Stephen Williams and Judges Merrick Garland and Douglas Ginsburg—said in the court’s ruling that Urbina made “a number of systemic errors based on an erroneous legal analysis.”
The court said, among other things, the “presence, extent and possible harmfulness” of tainted evidence must be reviewed on an individual basis even though the government brought a single indictment charging five guards.
“To the extent that evidence tainted by the impact of one defendant’s immunized statements may be found to have accounted for the indictment of that defendant, it does not follow that the indictment of any other defendant was tainted,” Williams wrote in the ruling for the appeals court. “The district court assumed the contrary.”
The D.C. Circuit also said Urbina failed to detail what statements from the guards “played exactly what role” in guiding the government’s investigation of the shooting in Iraq. “We cannot uphold the judgment of dismissal to the extent that it rests on such vague propositions,” the appeals court said.
Four guards--Paul Slough, Evan Liberty, Dustin Heard and Donald Ball--face the potential for further prosecution in Washington federal district court. Prosecutors abandoned the case against the fifth guard, Nicholas Slatten. But DOJ moved to dismiss without prejudice, reserving the right to seek re-indictment.