Lawyers for Blackwater Agent Lodge Prosecution Misconduct Charge

Mike Scarcella

The National Law Journal

2009-12-02 00:00:00.0

For more than a week, in a court hearing closed to the public, Justice Department lawyers defended the prosecution of five Blackwater security guards charged in the fatal shooting of 17 Iraqi civilians who came under fire in a shoot-out in September 2007.

On Nov. 20, Justice lawyers moved to dismiss without prejudice the charges against one of the defendants, Nicholas Slatten, in court papers that were filed under seal. The trial attorneys said an April 2009 protective order required keeping the court papers from the public.

That Justice filed the court papers under seal -- keeping the public in the dark about the reasons why the government doesn't want to move forward with the case -- didn't sit well with Slatten's lawyers at Wiltshire & Grannis in Washington, D.C.

Twice since Justice attorneys moved to dismiss the charges, the defense lawyers, Thomas Connolly and Steven Fredley, have filed court papers urging Judge Ricardo Urbina of the U.S. District Court for the District of Columbia to hold a status conference.

In the court papers, Connolly charged the prosecutors with misconduct and said a public airing of the Justice Department's position is necessary. Connolly is asking for a status conference to seek guidance from Urbina on how to respond to the Justice Department's motion to dismiss. Slatten's attorneys want the charges dismissed with prejudice.

"[T]he collapse of the government's case against Mr. Slatten should be as public as the baseless allegations against him; he should not be required to endure the government's repeated public mischaracterization of the evidence while non-public proceedings tell a very different a story," Connolly said in court papers filed Tuesday. Click here for a copy.

The government's case against Slatten became unsustainable, Connolly said, "for reasons that became clear" during the recent hearing that was held behind closed doors. The hearing explored defense allegations that prosecutors inappropriately used confidential information against the defendants.

The defense attorney lodged serious allegations against the government: The trial team "repeatedly mischaracterized" the testimony of witnesses and excluded exculpatory evidence from the grand jury.

"These grounds for a dismissal with prejudice go far beyond the narrow technical grounds conceded by the Department of Justice, and far beyond the substantive failure of the government's proof against Mr. Slatten," Connolly said. "They amount to a disturbing case of prosecutorial misconduct, undermining the integrity of the judicial process."

Justice lawyers Joseph Kaster and Michael Dittoe of the department's National Security Division are urging Urbina to strike the defense request for a status hearing. Kaster said in court papers that Slatten's lawyers violated the sealing order in the case when they exposed information that was not supposed to be released publicly.

"To be clear, in filing this motion to strike, the United States will abide by the Court's sealing order and will not comment on the substance of Defendant Slatten's allegations as to what transpired at the Kastigar hearing," Kaster said in court papers (.pdf).

Kaster said in the court papers that Urbina should only decide whether to publicize any issue from the sealed hearings after he rules on the dispute. Slatten's lawyers, and the Justice attorneys, were not immediately reached for comment.

An in-house lawyer at The Washington Post unsuccessfully argued to open the Kastigar hearing to the public, saying in a letter Oct. 13 to Urbina that there was no order entered supporting the exclusion of the press and public. The Post lawyer, James McLaughlin, said the court's apparent concern about the impact of pretrial publicity is "speculative and insufficient."

Urbina denied the request to open up the hearing but said any notice of a sealed hearing in the case would be posted on the public docket.

The judge did not immediately rule on whether he will hold a status conference to discuss whether the government's request to dismiss the case against Slatten should be publicly aired.

This article first appeared on The BLT: The Blog of Legal Times.