Lawyers for Blackwater Guards Challenge Use of Nicknames in Court

Mike Scarcella

The National Law Journal

12-17-2009

What do you think of when you hear the nickname "Savage Viking?" How about the name "Extreme?" Let your imagination run wild.

Two Blackwater security guards who are charged in federal district court in Washington, D.C., don't want the prosecution to bring up the nicknames "Savage Viking" and "Extreme." Their lawyers filed court papers this week urging the trial judge to exclude evidence of nicknames.

The defense lawyers for defendants Dustin Heard ("Extreme") and Paul Slough ("Savage Viking") said they anticipate the government will try to introduce the alleged nicknames at trial in the U.S. District Court for the District of Columbia. Slough reportedly used an e-mail address that included the "Savage Viking" nickname, according to court records.

The nicknames, according to the defense attorneys, have nothing to do with any of the issues in the case and should not be permitted. The government does not need the nicknames to identify the defendants, said the defense attorneys, who include David Schertler of Washington's Schertler & Onorato and a team from Steptoe & Johnson.

Five Blackwater guards are charged in the shooting deaths of 17 Iraqi civilians, killed in a shootout in Baghdad's Nisoor Square in September 2007. "In the context of this case, both alleged nicknames carry perjorative connotations of violent or aggressive character that renders them inadmissible as evidence," Schertler wrote in a motion filed Wednesday evening. Click here for a PDF copy of the motion.

"A jury who hears evidence of these nicknames is very likely to unfairly and improperly infer that the nicknames reflect violent or belligerent character traits on the part of these defendants that makes them more likely to have committed the crimes with which they are charged," Schertler said.

The Justice Department hasn't responded to the motion.

Prosecutors in some cases specifically identify aliases in charging documents since the aliases could be a crucial way to identify a defendant at trial. The indictments against the Blackwater guards do not identify aliases. The defense lawyers said during the course of discovery the government has provided information about the alleged nicknames.

The defense lawyers' motion to exclude evidence of nicknames points to a recent federal appellate court decision about nicknames.

In October, the 2nd U.S. Circuit Court of Appeals reversed an attempted murder conviction because of the prosecution's "gratuitous exploitation" of the defendant's nickname "Murder." The court, which affirmed on other counts, including murder, ordered a new trial on the attempted murder charge. The opinion is here.

"When a defendant charged with a crime of violence is identified before a jury by a nickname that bespeaks guilt, violence, or depravity, the potential for prejudice is obvious," Chief Judge Dennis Jacobs wrote for the panel, which included Senior Judges Pierre Leval and John Walker Jr.

Jacobs said the prosecution "invited prejudice" by repeatedly emphasizing the defendant's nickname. The appellate judges called the prosecution's action an "abuse" of the defendant's nickname.

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