DC Circuit Reinstates Blackwater Nisour Shooting Prosecution

On December 31, 2009 DC District Judge Ricardo Urbina dismissed the indictment against five Blackwater defendants involved in what is commonly referred to as the Nisour Square shootings occurring on September 16, 2007. Urbina’s decision was 90 pages in length and was further supported by a three week long Kastigar hearing in his court October of 2009. A Kastigar hearing is an evidentiary inquiry based upon Kastigar v. United States, 92 S. Ct. 1653 (1972), “where a party has been compelled to relinquish his Fifth Amendment right against self-incrimination in reliance on the government‘s promises of immunity, the government bears the―affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.”

Today, in a surprising unanimous decision, the DC Circuit Court of Appeals overturned Urbina, reinstated the case against four of the five original defendants (the prosecution had voluntarily dismissed Defendant Slatten previously) and remanded the case back to District Court for further proceedings. Here is how Reuters described the ruling:

The five guards were charged with 14 counts of manslaughter, 20 counts of attempt to commit manslaughter and one weapons violation count over a Baghdad shooting that outraged Iraqis and strained ties between the two countries.

The shooting occurred as the private security firm’s guards escorted a heavily armed four-truck convoy of U.S. diplomats through the Iraqi capital on September 16, 2007. The guards, U.S. military veterans, were responding to a car bombing when gunfire erupted at a crowded intersection.

U.S. District Judge Ricardo Urbina ruled in December 2009 that prosecutors violated the defendants’ constitutional rights and the case was tainted by use of statement the guards made to State Department investigators under a threat of job loss.

The appeals court reversed that ruling that the indictment of the guards had been improperly obtained through the use of their compelled statements. It ruled Urbina wrongly interpreted the law.

The appeals court sent the case back to Urbina to determine what evidence, if any, the government presented had been tainted and whether it was harmless.

The public version of the decision is here however, there is also a sealed classified version containing additional material.

The first thing to consider here is the standard of review the Circuit Court used in analyzing the appeal, because there were intermixing of factual and legal findings inherent in the Kastigar process, the court reviewed for clear error:

We review the district court’s findings that the government used a defendant’s immunized statement for clear error, United States v. North, 910 F.2d 843, 855 (D.C. Cir. 1990) (“North I”), a standard that is met for any finding that was “induced by an erroneous view of the law,”

In a nutshell, what that means is that the appellate court had to give strong deference to the findings by the trial court. In spite of this deference still unanimously blew Judge Urbina’s findings straight out of the water. Honestly, the abuse of the Garrity letter admissions by the government was serious, and I thought there was close to no chance Urbina’s decision would be reversed. Boy was I wrong.

The circuit Court did not disagree with Urbina as to the controlling authority determinative of the case, so much as take issue with how far in examining individual items of evidence, for each individual defendant, on a piece by piece basis, Urbina went. They Circuit court did not think Urbina went far enough:

In building a case against a defendant who received use immunity for his statements, the government must prove, by a preponderance of the evidence, that “all of the evidence it proposes to use was derived from legitimate independent sources.” North I, 910 F.2d at 854 (quoting Kastigar, 406 U.S. at 461-62, internal quotations omitted). As the district court observed, proof that a witness was “never exposed to immunized testimony” or that the investigators memorialized (or “canned”) a witness’s testimony before exposure, Slough, 677 F. Supp. 2d at 132 (citing North I, 910 F.2d at 872), would obviously satisfy the requirement. But a failure by the government to make either showing does not end the district court’s inquiry. North I requires the court to parse the evidence “witness-by-witness” and “if necessary, . . . line-by- line and item-by-item,” 910 F.2d at 872, and to “separate the wheat of the witnesses’ unspoiled memory from the chaff of [the] immunized testimony,” id. at 862. This sifting is particularly important in cases where, as here, a witness was exposed to a defendant’s immunized statement but testifies to facts not included in that statement.

….

First, the district court erred by treating evidence, including the testimony of Frost, Murphy, Ridgeway and the Iraqi witnesses, and the Frost journal, as single lumps and excluding them in their entirety when at the most only some portion of the content was tainted—it made no effort to decide what parts of the testimony or the journal were free of taint.

Without directly saying it, the Circuit Court also seemed to be of the opinion that Urbina did not place enough of a burden on the defendants and their claims of tainted evidence. I think the Supreme Court may have an issue with this implication, although it does not appear critical to the decision.

Second (and closely related), the district court erred by failing to conduct a proper independent-source analysis as required by Kastigar, ….. Where two independent sources of evidence, one tainted and one not, are possible antecedents of particular testimony, the tainted source’s presence doesn’t ipso facto establish taint.

Basically, the Circuit Court thought Urbina was too quick to judge derivative evidence tainted and did not show his work sufficiently in getting there. Quite frankly, I disagree, I found Urbina’s decision quite sound. I have no desire to have the Blackwater malfeasants walk free, but from a due process analysis, I thought, and still do, that such was the proper remedy. Urbina was right, the case needed to be dismissed, as unpopular as that is to say.

The last major area the court went into was cross tainting between each of the defendants’ statements:

This takes us to a fourth systemic error. 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. The district court assumed the contrary. Slough, 677 F. Supp. 2d at 166 & n.66. Although the prosecution presented a single indictment against all five defendants, each defendant was charged individually and therefore the presence, extent and possible harmfulness of the taint must be assessed individually.

What the court said here is that each defendant’s statement may be improper evidence to use against him, but it is prohibitively okay against his co-defendant. This is a commonly applied rule in criminal evidence suppression determinations, but it is heinous and pernicious. In the Nisour Square case, the defendants were so jointly involved and the evidence so intermixed that this theory should have no application; yet here the Circuit Court is straining to apply it. It is disgusting.

We thus vacate and remand the case for the court to determine, as to each defendant, what evidence—if any—the government presented against him that was tainted as to him, and, in the case of any such presentation, whether in light of the entire record the government had shown it to have been harmless beyond a reasonable doubt.

So, the case is going back to DC District Court for further proceedings; i.e a more detailed and individually centered analysis of the prosecution’s evidence for taint. Ricardo Urbina went senior status as of January 31 of this year, but I would assume he will get the case back anyway. The prosecution may be back on for now, but I would not be surprised in the least to see Urbina simply plug his previous beliefs and findings into the newly ordered specific analysis framework delineated by the Circuit Court. In short, my bet is the case gets dismissed again. We shall see.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
  1. MadDog says:

    If Urbina examines each specific and individual piece of testimony and evidence as the DC Circuit Court of Appeals requires, and yet comes to the very same conclusion requiring dismissal, based upon the fact that the Appeals court found no other error, is this not yet over…again?

    As you say, we shall see.

  2. Arbusto says:

    I’m over reacting, I’m sure, but it seem more than a few DoJ/FBI/DoD investigations and prosecutions in the last 10-15 years have tanked due to Agents/Prosecutors capricious, offhanded, amateur and other unprofessional behavior tainting a case. Say a State Department employee of some ilk offers immunity, with or without authority, to a witness for giving a interview, thus tainting any subsequent prosecution of anyone involved in the case. How convenient for the defendants.

    Do I correctly interpret the effect of 5th Circuit that a trial with tainted evidence may proceed if, in effect, each defendant is tried separately so the prosecution can select untainted evidence or testimony entered against one but not another defendant?

  3. bmaz says:

    Yes, and that is kind of what I expect, but who knows? Heck I gave this appeal about zero chance, so i ain’t real bright….

    • fatster says:

      Oh, you’re very bright. In this instance, you just weren’t very clairvoyant. Thass all.

      Nice article. Appreciate it.

  4. DWBartoo says:

    Thank you, bmaz for explaining the importance of due process.

    One wishes that Obama might have a wee chat with you.

    It might well do all of us a world of good ….

    Both of your posts, today, have touched upon the fundamental necessity of the rule of law in such a way that any who read what you have written cannot fail to understand …

    DW

  5. fatster says:

    O/T Another sorry tale. Editorial from the LA Times.

    U.S. should resettle Uighurs held at Guantanamo
    The U.S. acknowledges the five detainees are victims of mistaken identity who were in the wrong place at the wrong time. Congress has a moral obligation to make amends.

    LINK.

    • earlofhuntingdon says:

      Southern California would be a better place than Gitmo. The usual, you break it, you fix it rule – the one that had Bush and now has Obama scared to death – should apply.

    • mattcarmody says:

      We’re at the point in this country where probable cause comes down “they all look alike, therefore they all think and act alike.” Whereas before this was required thinking for bigots, it’s practically been enshrined as SOP.

  6. TomThumb says:

    I don’t know if you recall, but the NYTimes reported that up to the 2007 Nissour Square shooting, there had been hundreds of shooting incidents by private contractors. When I ran into one of these ex-blackwater guys, he challenged my facts but later admitted that they were true. When I asked him why the guys did not try another technique to get cars to slow down around them besides killing everyone in the cars, he said that he did try to intervene. He said that he tried to convince the contractors to drop cinderblocks in front of vehicles which seemed too close. So did it work, I asked. Nope. They did not listen to him.

  7. Kelly Canfield says:

    I have literally had the worst week ever to date, including the discovery of the fact that my younger brother now works for Blackwater/Xe. [insert heart rend icon here]

    Nonetheless, personal relationships notwithstanding, bring on the prosecution.

    Justice happens to be the most rare ingredient in any of the dishes I’ve had to eat recently, and pun intended, I’d relish some about now.

  8. earlofhuntingdon says:

    I haven’t read the decision yet. Was it en banc, did Kavanaugh, et al. participate?

    • earlofhuntingdon says:

      Ginsburg, Garland and Williams for the DC Circuit. Anyone have the scoop on their attitudes about law & order and executive authority?

      • bmaz says:

        Ginsburg and Garland are normally pretty decent judges. Maybe I just got it all wrong, but I thought Urbina’s decision was pretty solid.

      • harpie says:

        I was curious about this, too, and looking into things, probably got quite muddled, but here goes [sorry about the length, it just proves how confused I am]:

        Nine Years After 9/11, US Court Concedes that International Laws of War Restrict President’s Wartime Powers; Andy Worthington; 9/8/10

        In a number of rulings, judges in the D.C. Circuit Court have demonstrated that they are determined not only to deny the prisoners’ appeals, but also to tell the government that its powers of detention are far more sweeping than the AUMF suggests.

        Here, he talks about the case of Ghaleb al-Bihani, and links to the 1/5/10 decision [pdf],

        Before: BROWN and KAVANAUGH, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

        [Williams] concurred with the overall judgment and with part of the majority opinion, took exception to this conclusion [about Presidential War Powers]

        [AW-previously] This may not be much, but it was refreshing that Judge Williams at least perceived that the Supreme Court had set limits on the Executive’s wartime detention powers, and that he chastised the other judges for putting forward an argument that “goes well beyond what even the government has argued in this case” — that “[t]he authority conferred by the AUMF is informed by the laws of war.”

        Back to the 9/8/10 post:

        The D.C. Circuit Court backs down on Presidential power

        Last Tuesday, the Court of Appeals finally issued an opinion on al-Bihani’s appeal (PDF)[8/31/10]. [Predictably, all nine judges turned down the appeal, but in an unusual move, seven of the judges — Chief Judge David B. Sentelle and Judges Douglas H. Ginsburg, Karen LeCraft Henderson, Judith Ann Wilson Rogers, David S. Tatel, Merrick B. Garland, and Thomas B. Griffith — issued the following joint statement [also, a statement by Judge Williams is attached-see below*]:

        We decline to en banc this case to determine the role of international law-of-war principles in interpreting the AUMF because, as the various opinions issued in the case indicate, the panel’s discussion of that question is not necessary to the disposition of the merits.

        [Stephen] Vladeck told the New York Times that the note by the seven judges “amounted to a nullification of the more sweeping parts of the January ruling without the court bothering to rehear it.” He added, as the Times described it, that the paragraph “tells the world that the section of the January ruling about international law [pages and pages written by Brown and Kavanaugh-harpie] should be treated like what lawyers call ‘dicta’ — editorializing about issues that are not necessary to decide the matter at hand, which has little controlling authority for other cases.”

        *Judge Wiliams, from the 8/31/10 opinion on Bihani’s appeal:

        Finally, Judge Kavanaugh is plainly concerned about the propriety of Article III courts using gauzy notions of international law to rein in the executive’s conduct of military operations. I share that concern. But under Boumediene, Article III courts evaluate the propriety of the detention of non-U.S. nationals. In doing so they necessarily pass judgment on the admissibility of evidence collected on the battlefield, and thus on the propriety of the methods used for such collection. District courts have been doing so regularly since Boumediene. They therefore monitor, and to a degree supervise, the battlefield conduct of the U.S. military. But that is a consequence of Boumediene, in which the federal judiciary assumed an entirely new role in the nation’s military operations; it is not a product of international law’s role in understanding congressional grants of power—a separate matter entirely.

        But then, in March Worthington wrote:

        Mocking the Law, Judges Rule that Evidence Is Not Necessary to Hold Insignificant Guantánamo Prisoners for the Rest of Their Lives; Andy Worthington; 3/31/11

        In challenging, reversing and vacating the District Court opinions, the D.C.Circuit Court has issued a contentious opinion [pdf] about unfettered executive power,

        Before: GARLAND, GRIFFITH, and KAVANAUGH, Circuit Judges

        Who knows what these judges think about executive power? Not me.

  9. papau says:

    a defendant who received use immunity for his statements”

    no one will say the the gov wants to only pretend to prosecute, and indeed welcomes the expected dismissal of all charges, as requested by our intel and DOD folks.

    Sorry, but I am not interested in how well the gov planned the cover-up, how legal rights were violated so as to get them off – indeed my only question is why, in a war zone, they are not being tried by a military tribunal.

  10. earlofhuntingdon says:

    What the court said here is that each defendant’s statement may be improper evidence to use against him, but it is prohibitively okay against his co-defendant. This is a commonly applied rule in criminal evidence suppression determinations, but it is heinous and pernicious.

    It’s not the “cutthroat” defense, it’s a cutthroat prosecution. With multiple defendants, that exception does seem to gut the rule.

  11. CTuttle says:

    This was actually the best news I’d read today…! I do wonder if this ruling will be appealed to the Supremes or not…! Eventually, I’d think…!

  12. orionATL says:

    O.T.

    in memory of the season and its import for our culture,

    i offer this brief excerpt,

    “dona nobis pachem”,

    from the b- mass of j.s. bach:

  13. orionATL says:

    sooner or later, the fdl organization is going to have to deal with selective, punitive, logging out of commenters by its

    moderators/staff/stable of writers.

    “preemptive” moderating is censoring.

  14. orionATL says:

    jeez,

    here i am listening to a beautiful piece of music , trying to share it and the season,

    and still acting like an angry defensive end.

    back to the music.

    but one last comment,

    kelly canfield, eh,

    you have a reputation!!

    the problem is NOT my machines –

    note the plural, i am working from an apple and a microsoft.

    pax vobiscum!!

    and may the easter bunny bring you lots of jelly beans.

  15. BayStateLibrul says:

    Kentucky Derby in two weeks — Tip from Looie, “Comma to the Top”

    and that’s no run-on sentence

      • BayStateLibrul says:

        That’s the guy. He hangs at Cambridge Street, not far from the Tavern at the End of the World in Charlestown…

        According to my reliable sources, Uncle Mo went off at 10-1 at the Duct, and finished a dismal third…

        Looie says he didn’t have the distance…

  16. marc says:

    Far be it from me to think that federal judges can be influenced by the executive branch but the timing is interesting.

    The U.S. is becoming almost insanely desperate to get the Iraqis to agree to allow a large American force to remain in Iraq after the SOFA deadline for full withdrawal. Billions of dollars have already been spent building bases for a permanent presence. Also recently Maliki has publicly stated that the U.S. will be required to operate it’s diplomatic mission in a normal manor throwing cold water on DOS plans to operate it’s own private sector Blackwater type army outside of the control of the Iraqi government.

    Re-opening the Nisour Square case may just be a PR move to sweeten the Iraqis so it will not really amount to anything legally and will be dropped again as soon as possible.