:popcorn:


Now Shovel Ready: the Blackwater Criminal Prosecution (http://pajamasmedia.com/blog/now-shovel-ready-the-blackwater-criminal-prosecution/)
The Court of Appeals is unfazed by prosecutorial misconduct.



On April 22, a three judge panel of the U.S. Court of Appeals for the District of Columbia Circuit issued an order (http://www.cadc.uscourts.gov/internet/opinions.nsf/A311ECA37BE9E9AE8525787A004E0A0B/$file/10-3006-1304592.pdf) unanimously vacating and remanding the December 31, 2009 decision (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2008cr0360-217) of Judge Ricardo Urbina in the Blackwater Raven 23 case for further consideration in accordance with its instructions.

As noted in Judge Urbina’s ninety-page decision, the case had involved members of a Blackwater tactical support team referred to as Raven 23. Their function had been “to provide back-up fire support for other Blackwater personal security details operating in Baghdad.”


In a decision dismissing the indictment on which the defendants were to be tried, the trial judge set forth in substantial detail a surprisingly high level of repeated prosecutorial misconduct. I thought (and still think) that his was a well reasoned and fair decision and was surprised that the appellate court overturned it unanimously. Most of the apparently juicy bits of the April 22nd Court of Appeals decision were redacted. To the (unknowable) extent that the appellate court’s decision is based upon those redacted bits, it is incomprehensible.

The proceeding had a lot of baggage from the beginning, much of it unethical and some of it just plain stupid. That baggage — I reviewed some of it here (http://pajamasmedia.com/blog/blog/the-blackwater-guards-ksm-and-the-american-judicial-system/?singlepage=true) and here (http://pajamasmedia.com/blog/blog/the-blackwater-appeal-politics-commandeer-the-courtroom/?singlepage=true) — grew heavier with repeated incidents of prosecutorial misconduct. The sloppy work done during the post-incident investigation tainted the evidence found not only then but during subsequent investigations. The baggage accretion process continued even after Judge Urbina’s decision had been issued on the last day of 2009. On January 22, 2010, Vice President Biden told the president of Iraq that the United States would appeal Judge Urbina’s dismissal of the case. He also apologized publicly for the “misconduct” of the defendants and also, it seems, for that of the trial judge:

As noted in this Wall Street Journal article (http://online.wsj.com/article/SB10001424052748704065404574636170633783890.html?mod=googlenews_wsj), analyzing and quoting liberally from the trial judge’s opinion,

Judge Urbina dismissed the charges because prosecutors misused sworn statements the guards were compelled to make to investigators after the shooting, under the threat of job loss. This was routine practice under military contracting rules, though the statements could not be used in criminal prosecutions. Promptly after the Nisour incident these statements were also leaked to the media, which ran with the narrative of modern-day Hessians gone berserk.

“In their zeal to bring charges against the defendants in this case,” Judge Urbina ruled, prosecutors had violated Fifth Amendment protections against self-incrimination by using these compelled statements to formulate their case and ultimately obtain indictments against the guards. The judge calls it “the government’s reckless violation of the defendants’ constitutional rights.”

Because of prior contact with the compelled statements, the Justice Department’s entire criminal division had recused itself from the case, which was handed over to national-security prosecutors and later to Assistant U.S. Attorney for the District of Columbia Kenneth Kohl. The veteran Justice public-integrity lawyer Raymond Hulser was eventually assigned to lead a “taint team” to rebuild the case without using the off-limits statements, and he repeatedly warned the trial team that their evidence was “thoroughly tainted.”

“By all accounts these prophylactic measures fell well short of expectations,” Judge Urbina notes with some understatement. In “direct contravention of the clear directives” of Mr. Hulser, the statements were used to obtain a search warrant against Blackwater, figured into plea discussions, and exposed in testimony to the grand jury, forcing Justice to withdraw the case and present it to a new panel.

In the second round that featured redacted testimony from the first grand jury, prosecutors also excised what Judge Urbina calls “substantial exculpatory evidence.” The judge goes on to say that Justice’s “inconsistent, extraordinary explanations” for its conduct “smack of post hoc rationalization and are simply implausible,” and ultimately “lacking in credibility.”:coffee: