Stephen Williams, Merrick Garland and Douglas Ginsburg of the U.S. Court of Appeals for the D.C. Circuit.
Stephen Williams, Merrick Garland and Douglas Ginsburg of the U.S. Court of Appeals for the D.C. Circuit. (Photo: Diego M. Radzinschi/NLJ.)

A federal appellate panel last week sharply criticized the government’s handling of the criminal case against ex-Blackwater guards accused of killing Iraqi civilians in 2007.

The U.S. Court of Appeals for the D.C. Circuit on April 18 denied the government’s request that a panel of judges reconsider an earlier ruling that effectively bars the prosecution of one of the remaining four defendants.

The D.C. Circuit ruled April 7 that a 2011 order reviving the government’s case against the private security guards didn’t apply to one of defendants, Nicholas Slatten. That decision, prosecutors argued, would cause a “miscarriage of justice.” The government is time-barred from bringing a new indictment against Slatten.

The three-judge appellate panel was not convinced.

“If there was a ‘miscarriage of justice’ here, it was caused by the government’s inexplicable failure to reindict Slatten by the deadline set by the statute of limitations,” Chief Judge Merrick Garland and senior judges Stephen Williams and Douglas Ginsburg wrote in the April 18 order.

“But we cannot cure one such alleged miscarriage of justice by causing another—that is, by rewriting our mandate into something it was not in order to permit the government to charge Slatten after the statute of limitations has run,” the judges said.

A spokesman for the U.S. attorney’s office, William Miller, said his office was “continuing to review this matter and have no further comment at this time.”

Thomas Connolly of Wiltshire & Granis, a lead attorney for Slatten, was not immediately be reached for comment.

Friday’s order wasn’t the first time the federal government—prosecutors and the U.S. Department of State, which had contracted with Blackwater—faced criticism amid the manslaughter case.

Five Blackwater guards were originally charged in the shooting in Nisour Square in Baghdad that left 14 Iraqi civilians dead. The case was dismissed after a federal trial judge, Ricardo Urbina, found the indictments were based in part on protected statements the guards gave after the shooting. Urbina wrote in December 2009 that there was a “reckless violation of the defendants’ constitutional rights.”

The D.C. Circuit later reversed Urbina’s decision (with the exception of the charges against Slatten, as the court’s recent rulings made clear.) Prosecutors reindicted four of the guards, including Slatten. Defense lawyers moved to dismiss the indictment, arguing it was still rooted in the protected statements.

U.S. District Senior Judge Royce Lamberth on April 8 denied the motion to dismiss, but he expressed his dismay with how the case had been handled since the shooting. The judge requested an investigation into actions by the U.S. Department of State and Diplomatic Security Service.

He wrote that it was “incredible” how the defendants were “coerced” into making statements to Diplomatic Security Service agents after the shooting. He questioned whether the Diplomatic Security Service and State Department had authority to grant the guards immunity or ever asked for legal advice.

“If the Department of State and Diplomatic Security Service had tried deliberately to sabotage this prosecution, they could hardly have done a better job,” Lamberth wrote. “Even more egregious, though, was the leaking to the news media of all the statements given. Yet it appears there has been no investigation of these circumstances and no one has been held accountable.”

A trial is set to begin in June.

Contact Zoe Tillman at ztillman@alm.com. On Twitter: @zoetillman.