The Justice Department's decision to appeal the dismissal of charges in the Blackwater manslaughter case is drawing rebuke from the criminal defense lawyers who represent the accused guards.
In December, Judge Ricardo Urbina of the U.S. District Court for the District of Columbia lashed the department for its mishandling of the prosecution of the guards, who were charged in the shooting deaths of 17 Iraqi civilians in a gunfight in Nisour Square in Baghdad in September 2007. The judge found, among other things, that prosecutors misused immunized statements against the guards and failed to present exculpatory evidence to the grand jury that indicted the guards.
But, on Jan. 18, Urbina declined to dismiss the indictment with prejudice, which would have barred the pursuit of a new indictment against the guards. "The court is not persuaded that the additional, extreme sanction of dismissal with prejudice is justified under these circumstances," Urbina wrote. (Click here for the opinion.)
Vice President Joe Biden, traveling in Iraq this past Saturday, announced the Justice Department plans to appeal the dismissal of charges. "A dismissal is not an acquittal," Biden said after a meeting with Iraqi officials, according to The New York Times. Biden expressed "personal regret" for the fatal shooting. As of Monday morning, the Justice Department had not submitted a notice of appeal in the U.S. Court of Appeals for the D.C. Circuit.
Defense lawyer David Schertler of Washington, D.C.'s Schertler & Onorato, who represents former Blackwater guard Dustin Heard, said he was disappointed to learn the Justice Department is planning to pursue an appeal. Schertler said he was concerned the decision to dismiss the indictment "appears to be based upon political considerations rather than a careful consideration of the legal merits" of the case.
"We are confident that based upon proper considerations of the law, the facts, and the protections afforded to all Americans by the Constitution of the United States, Judge Urbina's decision will be upheld on appeal," Schertler said.
Steptoe & Johnson partner Mark Hulkower, who represents defendant Paul Slough, said: "Clearly the decision to appeal and the announcement by the VP in Iraq was made for political reasons and not based on any reasoned legal analysis. It is unfortunate that the politicians have seen fit to compound the prosecutors' mistakes in this case in order to curry favor with the Iraqi government."
Name partner Steven McCool of Washington's Mallon & McCool, who represents Donald Ball, said the Justice Department is taking a "politically expedient" route. "In the end, the United States has shown it will pursue an innocent man to appease the Iraqi government, rather than justice," McCool said.
This article first appeared on The BLT: The Blog of Legal Times.