The former Blackwater security guards charged with manslaughter in a shooting in Iraq want the U.S. Supreme Court to reverse a decision that revived the stalled prosecution in Washington federal district court.
Lawyers for the guards filed a petition in the high court Friday under seal, according to court records in the U.S. Court of Appeals for the D.C. Circuit. A redacted public copy of the filing was not immediately available this afternoon.
Much of the litigation in the case in U.S. District Court for the District of Columbia was conducted under seal in 2009 because of the confidentiality of the statements that make up the centerpiece of the pitch to the Supreme Court. The appeals court heard argument this year in a closed session.
At issue is whether the indictment is tainted from the prosecution’s use of statements the guards were compelled to make in the hours after the shooting in Baghdad in 2007.
The D.C. Circuit earlier this year revived the prosecution, saying the non-evidentiary use of those statements—for instance, their use in prosecutorial decision-making over whether to charge a person—is allowed. The full court declined to hear the dispute.
The guards’ attorneys said in July in the D.C. Circuit that the petition would present a “substantial question” to the high court over whether the Fifth Amendment right against self-incrimination is violated when prosecutors are exposed to compelled statements.
U.S. District Judge Ricardo Urbina dismissed the prosecution in December 2009, saying prosecutors unfairly incorporated statements the guards were forced to make in the hours after the shooting in Iraq that left more than a dozen civilians either dead or injured.
DOJ has admitted to making mistakes in building its case. A new prosecution team recently took over the case, which is on hold pending whether the Supreme Court decides to hear the dispute.
The guards’ attorneys, who include Steptoe & Johnson counsel Bruce Bishop and David Schertler of Washington’s Schertler & Onorato, said federal appellate courts are divided over the Fifth Amendment issue presented in the case.
“This clear and enduring circuit split on an important issue of federal law presents a substantial question for Supreme Court certiorari review,” the guards’ attorneys said in court papers in the appeals court.
The defense attorneys said they will argue to the Supreme Court that an indictment based on compelled statements cannot stand a Fifth Amendment challenge.
The D.C. Circuit's decision in the case joined several other circuits in ruling that non-evidentiary use of compelled statements, for prosecutors' use in making strategic decisions, is not banned. The 3rd and 8th Circuits have banned all non-evidentiary uses, the lawyers for the guards said.
Even in the circuits that have said non-evidentiary use of compelled statements is allowed, the degree of that use is an open question, the lawyers representing the guards said.