Lawyers for four former Blackwater security guards are challenging an appeals court ruling that revived the government's manslaughter prosecution in Washington federal district court.
The attorneys today filed a petition (PDF) asking the full U.S. Court of Appeals for the D.C. Circuit to review the case. A three-judge panel in April ruled for DOJ, sending the litigation back to the trial court for additional proceedings.
At issue is the extent to which the Justice Department misused compelled, protected statements the guards made following a fatal shooting in Baghdad in September 2007. The guards were later indicted in U.S. District Court for the District of Columbia for their alleged roles in the gun battle that killed a group of unarmed Iraqi civilians.
Judge Ricardo Urbina in December 2009 dismissed the indictment after a series of hearings in which the judge explored the government’s exposure to protected statements. The appeals court this year vacated Urbina’s decision and remanded the case.
The guards’ lawyers--including Bruce Bishop of Steptoe & Johnson, Thomas Connolly of Wiltshire & Grannis, David Schertler of Schertler & Onorato, Steven McCool of Mallon & McCool and William Coffield--said in today’s joint petition that the D.C. Circuit decision “creates a dramatic new burden for district courts” conducting hearings on the use compelled statements in criminal prosecutions.
The appeals court, according to the defense lawyers, said Urbina made a mistake by not determining whether all of the government’s evidence is tainted or untainted. The ruling, the lawyers said, creates an “enormous and unprecedented” burden for district judges.
There is no “freestanding obligation” for a district judge to analyze every line from every witness in cases that involve compelled statements, the defense lawyers said. The panel decision, the lawyers said, creates “uncertainty and inequity in this recurring area of the law.”
The defense attorneys also said the D.C. Circuit got it wrong when it ruled that prosecutors’ use of compelled statements in determining whether to charge a person is non-evidentiary use and therefore permitted. The lawyers said appeals courts are divided on this issue.
A Justice Department spokesman declined to comment on the defense request for an en banc hearing. DOJ will have a chance to respond in court in the coming weeks.