Thomas Connolly.
Thomas Connolly. (Photo: Diego M. Radzinschi/NLJ.)

Lawyers for a former Blackwater guard charged in a fatal shooting in Iraq want the federal government to pay their legal fees now that a judge has dismissed the case against him.

Nicholas Slatten was one of several ex-Blackwater guards charged with killing and injuring Iraqi civilians in Baghdad in 2007. A federal trial judge dismissed the original indictment, but the U.S. Court of Appeals for the D.C. Circuit revived the prosecution in 2011. The appeals court ruled earlier this month that the 2011 ruling didn’t apply to Slatten.

Prosecutors are time-barred from refiling manslaughter charges against Slatten. At a hearing on Wednesday, U.S. District Senior Judge Royce Lamberth in Washington dismissed Slatten from the case.

A lead attorney for Slatten, Thomas Connolly of Wiltshire & Grannis, told Lamberth he planned to seek legal fees from the government for the past two years of “frivolous litigation” against his client. He didn’t say how much money was at issue.

But prosecutors aren’t dropping the case against Slatten. Assistant U.S. Attorney Anthony Asuncion told Lamberth that the government was weighing “all available options,” including appealing the D.C. Circuit panel’s decision and pursuing a new indictment against Slatten for first-degree murder.

If Slatten is charged with murder, Connolly said he would file a motion accusing the government of vindictive prosecution. He said he would also ask the judge to separate Slatten’s case from the other defendants, but Lamberth said he could “almost guarantee” he wouldn’t allow two trials.

The remaining three defendants are scheduled for trial in June. Their lawyers argued Wednesday that Lamberth should dismiss the case on two grounds—first, that prosecutors failed to show the offenses in the indictment fell under the Military Extraterritorial Jurisdiction Act, and second, that the case didn’t belong in Washington.

The parties agreed manslaughter charges could only be brought in a U.S. court under the Military Extraterritorial Jurisdiction Act. That law applied to non-U.S. Department of Defense contractors, a category that would include the Blackwater guards, if they were supporting the Defense Department’s “mission” overseas.

At the time of the shooting, Blackwater was contracting with the U.S. Department of State to provide security. Brian Heberlig of Steptoe & Johnson LLP, a lead attorney for defendant Paul Slough, said prosecutors failed to explain in the indictment how the guards were supporting the Defense Department’s mission.

Assistant U.S. Attorney T. Patrick Martin said the indictment did go beyond just quoting the statute’s language on jurisdiction, and, more generally, he argued the defendants had enough notice of the nature of the charges against them.

David Schertler of Schertler & Onorato, a lead attorney for defendant Dustin Heard, argued the venue issue. Prosecutors filed the case in D.C. based on the fact that another Blackwater guard who pled guilty, Jeremy Ridgeway, was arrested in Washington and was a “joint offender.” Schertler said the new indictment failed to show any joint conduct or intent among the guards that would allow prosecutors to group the defendants with Ridgeway to create jurisdiction.

A federal trial judge previously assigned to the case rejected a similar venue challenge after the first indictment was filed in 2008, but Schertler said the new indictment lacked language from the original that tied Ridgeway as a “joint offender” to specific charges.

Assistant U.S. Attorney Christopher Kavanaugh said nothing substantial had changed since the original ruling denying the challenge to the venue. Federal law didn’t limit using a “joint offender” to establish jurisdiction to conspiracy cases, he said.

Lamberth did not rule before closing the courtroom to discuss sealed matters. He previously denied a motion to dismiss that accused prosecutors of impermissibly basing the new indictment on protected statements the guards gave after the shooting. Use of the compelled statements led to the first dismissal of the case.

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