Prosecutors in Washington are building a new criminal case against a group of former Blackwater private security guards whom the government believes wrongly killed more than dozen Iraqi civilians in a Baghdad shootout in 2007.
A federal judge in December 2009 dismissed the government's high-profile, controversial manslaughter case, saying that the prosecution was unlawfully built on protected statements that the guards made after the shooting. The prosecution, Urbina concluded, was tainted with information that the prosecutors should never have used.
The U.S. Court of Appeals for the D.C. Circuit last year revived the prosecution, and the U.S. Supreme Court in June declined to review the case. The appeals court concluded the trial judge, Ricardo Urbina, who has since retired from the bench, didn't apply the right law in dismissing the indictment.
Assistant U.S. attorneys Anthony Asuncion, John Han and T. Patrick Martin have taken over the manslaughter prosecution from another crew of federal prosecutors. Asuncion said today at a status hearing that the government is moving forward to obtain a superseding indictment. He did not discuss potential new charges.
The big issue in the case remains this: keeping the prosecution team walled off from any protected, confidential information the Blackwater guards provided after the shooting.
An assistant U.S. attorney, John Crabb Jr., is on the so-called "filter team," reviewing evidence and witness statements before the trial prosecutors can review the material. Prosecutors and filter team lawyers and investigators recently returned from Iraq. There, prosecutors did not interview witnesses before filter team members spoke with them, Crabb said.
"We're taking a very conservative approach, your honor," Crabb said today in court, explaining the cautious approach the government wants to take to try to not trip up for a second time. Gregg Maisel, chief of the national security section of the U.S. Attorney's Office for the District of Columbia, is supervising the filter team.
Steptoe & Johnson partner Brian Heberlig, a lawyer for Paul Slough, said in court he anticipates challenging any new indictment on the ground that witnesses could have been exposed to information that was supposed to remain confidential.
The defense lawyers, he said, are planning to argue against any new charges. "We'd like to try to talk them out of a case or at least significantly streamline it and make the case more efficient," Heberlig said in court.
Steven McCool of Mallon & McCool, representing Donald Ball, said in court that he was "very troubled at the last hearing to learn all the exculpatory evidence against my client that was not presented—frankly, it was intentionally kept from the first grand jury."
McCool said he wants to meet with Justice Department officials "to explain to them again the lack of evidence against my client, Mr. Ball, and why the government should not go forward with this case against him."
The first indictment was filed in December 2008, charging five guards--one has since been dropped from the prosecution--with manslaughter and weapons violations. The guards contend they acted in self-defense.
Chief Judge Royce Lamberth, who took over the Blackwater case after Urbina retired, is expected to meet again with the defense lawyers and prosecutors in October for another status update. No trial date is set.