Slatten's attorneys contend the government is mistaken in its claim that the D.C. Circuit judgment -- not the opinion -- governs. The defense attorneys argue that the D.C. Circuit mandate to the trial court -- reviving the case -- comprises a certified copy of the judgment and the opinion.
In the appeals court, Slatten's attorneys said, prosecutors never argued for the reversal of the dismissal of the case against Slatten. At the oral argument hearing in the D.C. Circuit, a DOJ lawyer noted that a win in the appeals court would help the government if it decided to try to re-indict Slatten.
"Having waited until the mandate was issued and final, the government cannot now claim, to a different court, that the D.C. Circuit was simply wrong, and that the correct disposition of the case is something other than what the D.C. Circuit said in its opinion," Slatten's attorneys said.
In their court papers, prosecutors said "the government arguably should have moved to have the opinion corrected but failed to recognize that the error could be misused by defendant Slatten to argue that he is no longer a party."
Prosecutors acknowledged that the statute of limitations has run against Slatten if a judge determines the D.C. Circuit didn't revive the case against him. A ruling that the D.C. Circuit upheld the dismissal against Slatten, prosecutors said, "would be contrary to the public interest."
Slatten's attorneys contend the government dropped the ball and should not be rewarded by allowing Slatten to remain a defendant in the case.
"Nearly three years ago, the government announced that its indictment against Slatten was fatally flawed, that the indictment should be dismissed and that the government intended to one day re-indict Slatten," the defense lawyers said. "The government never moved from the first two positions. For reasons known only to the government, it took no action on the third. The government now appears to regret that decision."
Chief Judge Royce Lamberth of U.S. District Court for the District of Columbia has scheduled a hearing for later this month. In the meantime, the government has until January 10 to file papers countering Slatten's position that he is no longer a defendant in the case.
Government lawyers said this summer they are taking necessary steps to keep prosecutors away from information that they cannot use against the guards. No new trial date is set.
This article first appeared on The BLT: The Blog of Legal Times.