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Appeals Panel Reinstates Blackwater Prosecution
By David Stout | April 22, 2022 3:52 pm

The government’s high-profile prosecution of a group of Blackwater Worldwide security guards charged with manslaughter and weapons violations for a 2007 shooting in Baghdad that killed more than a dozen civilians has been reinstated, more than a year after it was dismissed for what a judge called prosecutorial misconduct.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit on Thursday reversed the Dec. 31, 2009, decision of U.S. District Judge Ricardo Urbina in Washington, sending the case back to the trial court.

Assistant U.S. Attorney Ken Cole led the prosecution team, which included AUSA Jonathan Malis.

Urbina had concluded that the cases against all five guards should be dismissed because the prosecution was tainted by improper use of compelled statements that the defendants made to State Department investigators after the shooting in Baghdad’s Nisur Square. The 2007 incident sparked outrage in Iraq and put enormous political pressure on the U.S. to prosecute the guards. Likewise, Urbina’s dismissal of the case on New Year’s Eve 2009 was greeted in Iraq with dismay and anger.

Urbina’s language at the time was scathing against the prosecutors, saying they “purposely flouted” instructions from a department “taint team” intended to keep the tainted statements out of the prosecution, and accusing them of withholding exculpatory evidence. His decision gave extraordinary detail about the department’s internal struggles to build the case and criticized Assistant U.S. Attorney Ken Kohl in Washington and others on his team.

But the appellate-panel judges, Senior Judge Stephen Williams and Judges Merrick Garland and Douglas Ginsburg, said Urbina had made “a number of systemic errors based on an erroneous legal analysis.”

The D.C. Circuit remanded the prosecution with instructions for Urbina to determine what evidence the government presented against each defendant that was tainted and “in the case of any such presentation, whether in light of the entire record had shown it to have been harmless beyond a reasonable doubt.”

The court said, among other things, the “presence, extent and possible harmfulness” of tainted evidence must be reviewed on an individual basis even though the government brought a single indictment charging five guards.

“We’re pleased with the ruling and assessing the next steps,” Justice Department spokesman Dean Boyd said.

The Blackwater guards were contractors to the State Department, and in that capacity they had been compelled to give statements to State investigators after the shooting deaths. But the Supreme Court has ruled that compelled statements may not be used against defendants in later prosecutions - a fact that made prosecution of what was already a politically charged case even more difficult.

A leak of the guards’ original statements to the news media complicated matters for prosecutors as they tried to sort through what witnesses knew first-hand, versus what they had read of the disallowed statements in news articles.

“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,” Williams wrote for the panel. “The district court assumed the contrary.”

“We’re pleased with the ruling and assessing the next steps,” said Dean Boyd, a Justice Department spokesman.

The defendants in the case are Paul Slough, Evan Liberty, Dustin Heard, and Donald Ball. The government had moved previously to dismiss charges against a fifth guard for North Carolina-based Blackwater, which renamed itself as Xe Services after the shooting.

Justice Department attorney Demetra Lambros argued the case on appeal for the government.

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