Judge Cites Prosecutorial Misconduct In Blackwater Dismissal
Posted By Mary Jacoby On January 1, 2010
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With a scathing rebuke of prosecution tactics, U.S. District Judge Ricardo Urbina in Washington yesterday ordered (1) dismissal of an indictment against five Blackwater Worldwide security guards accused in a politically charged 2007 shooting incident in Iraq.

Prosecutors violated the defendants’ constitutional rights by relying on tainted, compelled testimony given by the guards to the State Department under a grant of immunity immediately after the Sept. 16, 2007 incident, the judge ruled.

In “their zeal to bring charges,” prosecutors led by Assistant U.S. Attorney Kenneth Kohl of the District of Columbia “purposely flouted” repeated warnings of a Justice Department “taint team” not to rely on compelled statements from the guards, the judge wrote. Read the order here (1).

“We’re obviously disappointed by the decision,” Justice Department spokesman Dean Boyd said in a statement. “We’re still in the process of reviewing the opinion and considering our options.”

The voluntary manslaughter and firearms charges against the Blackwater guards arose from a well publicized incident in Baghdad’s Nisur Square, in which more than 30 Iraqi civilians were killed or wounded.

The Blackwater guards, who were contracted to provide security for U.S. government employees in Iraq, claimed they had fired in self defense after an attack by insurgents. But the government said the guards fired without provocation.

The shooting deaths infuriated Iraqis and, in the United States, crystallized growing public unease over the use of private security guards in the combat zone.

But under an agreement with the Coalition Provisional Authority that governed Iraq after the U.S.-led March 2003 invasion, the Blackwater prosecutors were immune from prosecution in Iraq.

Public pressure for action

The Justice Department inherited the case from the State Department and was under public pressure to take action. But the immunized testimony from the defendants obtained by State Department investigators presented enormous hurdles to prosecution.

Judge Urbina, however, painted a picture of prosecutorial misconduct that recalled the stinging rebuke of prosecutors in another high-profile criminal case, the dismissed public corruption indictment against former Sen. Ted Stevens of Alaska.

Urbina’s colleague on the District of Columbia court, Judge Emmet Sullivan, who presided over the Stevens case, ordered his own criminal contempt of court investigation of prosecutors in that matter. Sullivan also has lobbied for evidentiary rules changes that would make it harder for prosecutors to exercise discretion over what type of potentially exculpatory evidence the government must provide to defendants.

The Urbina opinion reflects what appears to be an increasing atmosphere of mistrust between some federal judges and Justice Department prosecutors. Many of the cases where judges have questioned [2] prosecutors’ motivations are lower profile and don’t make national headlines.

The government is restrained from commenting on criminal investigations, making it difficult for prosecutors to give their side of events. At times in open court, prosecutors do get the opportunity to make a public defense of their conduct, such as in this case [3] against an alleged Mexican drug trafficker, also overseen by Sullivan.

Judges, however, are under no such constraint, and it is their opinions which increasingly have come to define public perceptions of the integrity of the Department of Justice.

The prosecution team was assisted by Department of Justice trial attorney Stephen Ponticello and included Assistant U.S. Attorney Jonathan Malis of the District of Columbia.

The defendants were Paul Slough, Evan Liberty, Dustin Heard, Donald Ball and Nicholas Slatten. Prosecutors had already decided to drop manslaughter and weapons charges against Slatten.

Taint team’s advice disregarded

In the Blackwater case, prosecutors presented “distorted versions” of the statements to a grand jury, withheld “substantial exculpatory evidence,” and improperly tried to “color” the grand jury’s view of the case by revealing that certain incriminating statements were being withheld from it, Urbina wrote.

Urbina’s opinion cited conflicts between prosecutors and a Department of Justice “taint team” set up to prevent impermissible evidence from being used.

Raymond Hulser, a Deputy Chief in the Public Integrity Section of the Criminal Division, was assigned in October 2007 to head up the taint team. It focused on excluding evidence from compelled statements the Blackwater guards gave to the State Department under a grant of immunity immediately after the Sept. 16, 2007 incident.

But prosecutors Kohl and Malis repeatedly disregarded the taint team’s advice, the judge found, endangering the prosecution.

Hulser initially passed his advice through Michael Mullaney, a section chief in the National Security Division, who forwarded Hulser’s emails to Kohl, the opinion said. But in at least two instances, Kohl testified he was too busy to read Hulser’s forwarded emails, the opinion notes.

At another point, Hulser directly emailed Kohl and wrote: “I’m concerned if you have notes of interviews regarding 9/16 for any of your current subjects. I did not approve that.”

In “direct contravention of Hulser’s unequivocal warnings,” the trial team interviewed the State Department agents who conducted the Sept. 16, 2007 interviews and “specifically inquired about the details of the defendants’ statements during those interviews,” Urbina’s opinion said.

Judge Casts Doubts on Prosecutor

The opinion casts doubt on Kohl’s veracity in numerous places.

In one example, Urbina cites a February 2008 search warrant obtained using the defendants’ compelled testimony as probable cause.

The warrant, in connection with a potential false statements prosecution, authorized the government to search Blackwater defendants’ email accounts for unsigned drafts of follow-up written statements to their initial oral accounts.

Hulser was not told about the search warrant. He testified that had he known, he wouldn’t have allowed prosecutors to view any evidence from it without approval from the taint team.

FBI special agent John Patarini, the lead investigator for the prosecution team, executed the search warrant and obtained drafts of the Sept. 18, 2007 written statements from two defendants. These statements were included in a binder of evidence for prosecutors.

Kohl testified that he admonished Patarini for including that evidence. But Patarini testified that the search warrant was a “project driven by” Kohl, the judge wrote.

Kohl also testified that he discussed the search warrant in meeting with an unidentified Assistant Attorney General. But neither trial team attorney Ponticello or Mullaney, with the National Securtity Division, recalled such discussions, though they were in the same meetings, the judge wrote.

Two grand juries

An initial grand jury convened in November 2007 included testimony from three prosecution witnesses who were Blackwater guards in the convoy that was involved in the shooting.

But prosecutors later decided to convene a second grand jury, after concluding that the witnesses had been exposed to media reports about the Sept. 18 written statements by defendants.

Instead of calling the witnesses to appear again, before the second grand jury, prosecutors decided to present transcripts of their previous testimony, redacted to eliminate evidence obtained through exposure to the defendants’ compelled testimony.

AUSA Malis was assigned to make the redactions. But Urbina found that Malis eliminated exculpatory evidence in the redactions.

For example, several prosecution witnesses testified in the first grand jury that the Blackwater convoy had been fired upon by insurgents.

“Malis testified that he chose not to present the testimony of these witnesses to the second grand jury because the testimony indicated that the witnesses were ‘hostile’ to the prosecution,” the judge wrote.

In another example cited by the judge, prosecution witness Matthew Murphy, another member of the Blackwater convoy, gave testimony in the first grand jury that was exculpatory to defendant Donald Ball.

Murphy said that although he stood near Ball, he never saw him fire his weapon and that he “wasn’t just shooting wildly,” if at all, the opinion said.

“The prosecutors redacted this testimony from the transcripts presented to the second grand jury, even though Malis acknowledged it was exculpatory and had nothing whatsoever to do with the taint issue,” Urbina wrote.

The judge added in a footnote: “[T]he trial team chose to test the boundaries of permissible use of questionable testimony and ignore the warnings of fellow prosecutors tasked with advising them on precisely these issues. In doing so, it skated over the line.”

Urbina also faulted the prosecutors for informing the second grand jury that certain incriminating statements from the defendants were being withheld. “It is reasonable to believe that the purpose of these disclosures was to color the grand jury’s thinking,” the judge wrote.

“Implausible” statements from prosecutors

Urbina scoffed at the government’s characterization of Kohl’s failure to follow Hulser’s taint team advice as a “miscommunication.” He wrote:

“(T)o accept this characterization, the court would have to accept the following: that Kohl, a seasoned and accomplished prosecutor, failed to read multiple e-mails from senior prosecutors regarding a high profile case, including one e-mail to which Kohl responded “Got it;” (and) that Mullaney, a Section Chief in the DOJ National Security Division, failed to forward to Kohl numerous e-mails from Hulser containing critical information regarding the investigation, despite Mullaney’s testimony that it was his practice to forward any such e-mails.”

The judge concluded:

“These inconsistent, extraordinary explanations smack of post hoc rationalization and are simply implausible. The only conclusion the court can draw from this evidence is that Kohl and the rest of the trial team purposefully flouted the advice of the taint team when obtaining the substance of the defendants’ compelled statements, and in so doing, knowingly endangered the viability of the prosecution.”

Article printed from Main Justice

URLs in this post:

(1) ordered

(2) questioned

(3) this case http://www.mainjustice.com/2009/06/30/sullivan-strikes-again/

Blackwater: FBI hasn't interviewed key figures in killings
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WASHINGTON (CNN) -- The FBI has not yet interviewed five "key" members of a Blackwater security team involved in the shooting deaths of 17 Iraqis, a Blackwater spokeswoman said Wednesday.

In addition, a senior U.S. official who asked not to be identified told CNN that "most, if not all, of the shooters" in the September 16 killings "have not been interviewed."

An FBI team has been in Baghdad investigating the shootings by Blackwater security contractors who were hired by the State Department to protect U.S. diplomats.

"To the best of our knowledge, the key people in this incident have yet to even speak with investigators," said Blackwater Worldwide spokeswoman Anne Tyrrell. She said it was her understanding that none of the five "key" Blackwater employees involved in the incident have been interviewed by the FBI.

An FBI representative refused to comment on Tyrrell's statement.

The North Carolina-based firm says its guards came under fire while protecting a State Department convoy and acted properly in self-defense, but Iraqi authorities have called the killings "premeditated murder."

Some Blackwater employees who've given statements to State Department investigators in exchange for limited immunity have refused to answer FBI questions, according to government sources close to the investigation. The State Department investigators promised the employees that their statements would not be used against them in a criminal prosecution. VideoWatch latest legal wrinkles in the case »

The killings placed the operations of Blackwater and other security firms under intense scrutiny in Iraq, where an estimated 25,000 private contractors protect diplomats, reconstruction workers and government officials. Under a provision put into place in the early days of the U.S.-led occupation of Iraq, security contractors have immunity from Iraqi law. See details about security contractors in Iraq »

Several, if not all, of the Blackwater guards involved in the shootings have returned to the United States from Iraq, said a highly placed industry source.

The killings have angered members of Iraq's government and prompted demands in the U.S. Congress that American security contractors be held accountable for their actions abroad.

"We have always supported stringent accountability and continue to support stringent accountability," Tyrrell said. "If it is proven that there was wrongdoing, we want that person or persons held accountable."

Iraqi officials said 17 people, including women and children, were killed and 27 were wounded when Blackwater guards fired on motorists around Nusoor Square.

But Blackwater has said its contractors fired in self-defense.

"It's very clear that they were faced with deadly force throughout the morning," Tyrrell said. "As you recall, there was the massive car bomb earlier in the day."

The shooting began when the Blackwater security team was stopped in a jammed traffic circle while on its way to assist another Blackwater team that was escorting a State Department official. That official was rushed back to the U.S. Embassy after a roadside bomb exploded near where the official was in a meeting.

U.S. Secretary of State Condoleezza Rice sent a high-level team to Baghdad to conduct an inquiry, which resulted in new rules and procedures for diplomatic security teams operating in Iraq.

A team of FBI agents flew to Baghdad to assist in the case, but the bureau eventually opened its own criminal probe. While State Department agents took statements from Blackwater employees involved in the incident, they promised them they would not share their statements with criminal investigators.

CNN's Barbara Starr and Kelli Arena contributed to this report.

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