The full U.S. Court of Appeals for the D.C. Circuit today said it will not review a panel's decision to revive the prosecution of former Blackwater private security guards charged in the shooting deaths of Iraqi civilians in 2007.
The nine active judges of the court issued an order today, without comment, unanimously rejecting the request from the guards that the full court review and overturn a three-judge panel decision in April. The panel decision remanded the case back to Washington federal district court for further proceedings.
The panel ruling reversed U.S. District Judge Ricardo Urbina’s decision in December 2009 to dismiss the indictment. Urbina concluded the government, in building its case, improperly used compelled statements the guards made in the hours and days after the fatal shooting in Baghdad. The judge said the indictment itself was tainted.
The D.C. Circuit panel--Senior Judge Stephen Williams and judges Merrick Garland and Douglas Ginsburg--instructed Urbina to determine the extent to which evidence was tainted as to each of the four remaining defendants. The guards were indicted in Washington federal district court in December 2008. The guards claim they acted in self-defense in the shooting, which left 34 civilians dead or wounded.
Lawyers for the guards said in their request for an en banc hearing that the panel ruling “creates a dramatic new burden for district courts” regarding the examination of the use of compelled statements in criminal prosecutions. The defense attorneys said the ruling would create “uncertainty and inequity” in this area of the law.
Responding to the Blackwater guards, the U.S. Justice Department in late June said in court papers in the D.C. Circuit that the full court should leave in place the panel ruling.
A Justice Department attorney, Demetra Lambros, acknowledged the split among federal appellate courts on whether the non-evidentiary use of compelled statements in prosecutorial decision-making is proper. The D.C. Circuit, Lambros said, sided with the courts that have refused to find indictments vulnerable because of their association to immunized statements.
Lambros said Urbina excluded in total “the testimony of key eyewitnesses to an unforgettably violent event” even though “whole swaths” of the testimony did not touch on the protected statements the guards made after the shooting. Urbina, Lambros said, “used a sledgehammer” and not a scalpel in assessing the prosecution for evidence of taint.
Lawyers for the guards were not immediately reached for comment this afternoon on whether they plan to ask the U.S. Supreme Court to review the D.C. Circuit panel decision.