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January 1, 2010

Another federal judge assails federal prosecutors when dismissing Blackwater prosecution

As detailed in this Washington Post article, another federal judge has concluded a criminal case by ruling that prosecutorial mistakes (and misconduct?) precludes continued criminal prosecution. Here are the basic details:

A federal judge dismissed charges against five Blackwater Worldwide security guards accused of killing 14 Iraqi civilians in a controversial shooting in a busy Baghdad square two years ago in a ruling that sharply criticized the tactics of Justice Department prosecutors handling the case.

The judge, Ricardo M. Urbina of the District's federal court, found that prosecutors and agents had improperly used statements that the guards provided to the State Department in the hours and days after the shooting.  The statements had been given with the understanding that they would not be used against the guards in court, the judge found, and federal prosecutors improperly used them to help guide their investigation.  Urbina said other Justice Department lawyers had warned the prosecutors to tread carefully around the incriminating statements.

"In their zeal to bring charges," Urbina wrote in a 90-page opinion, "prosecutors and investigators aggressively sought out statements in the immediate aftermath of the shooting and in the subsequent investigation.  In so doing, the government's trial team repeatedly disregarded the warnings of experienced, senior prosecutors, assigned to the case specifically to advise the trial team" on such matters.

In this post at Volokh, Paul Cassell complements the "thoroughness of Judge Urbina‚Äôs opinion" (which he makes available at this link).  I suspect that the folks who usually support aggressive prosecutors and assail active judges may be unusually pleased by Judge Urbina's activist decision to dismiss this prosecution because prosecutors were too aggressive.

More broadly, this ruling by Judge Urbina on New Year's Eve provides a fitting close to a 2009 that was most remarkable for how many times and in how many different settings that federal judges felt they must speak out forcefully concerning the misbehavior of federal prosecutors.  Though I have not kept a running list of all the cases in which federal prosecutors have been assailed by federal judges for their misbehavior (has anyone?), what used to be a truly exceptional event seemed to have become a regular occurrence in 2009.

January 1, 2010 at 09:57 AM | Permalink

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Comments

how will be now possible to prosecute the tortured people of Guantanamo ?

Posted by: claudio giusti, italia | Jan 1, 2010 10:04:32 AM

So has anything come of the investigation of the Stevens prosecution team by outside counsel? Where would I even look to follow that story?

Posted by: Soronel Haetir | Jan 1, 2010 12:54:15 PM

Doug __

"I suspect that the folks who usually support aggressive prosecutors and assail active judges may be unusually pleased by Judge Urbina's activist decision to dismiss this prosecution because prosecutors were too aggressive."

Nailed it, with a few amendments.

I have no problem with prosecutors being aggressive (are they supposed to be passive?). I also don't think Urbina was being especially activist. The misconduct here was quite serious; you can't, as a prosecutor, induce someone to speak on the basis of promised immunity and then turn around and use what he says to indict him. To understand that this undermines the legitimacy of the government's entire case is hardly to be an "activist." You don't need to be an activist. You only need to be awake.

The problem here was not that the prosecution was aggressive. The problem was that it was deceitful. As I have said many times, I do not regard deceit as acceptable for defense lawyers, and I certainly don't regard it as acceptable for prosecutors. It came to its fitting reward here.

The more appalling problem with the case is in the background, but obvious. This was a political prosecution. Obama's left flank is furious that they're going to have to give up the public option and compromise on abortion. They were also (but more quietly) not too thrilled with Sotomayor. They wanted someone more radical, like Harold Koh. And most of all, they're fretting tha Obama won't close Gitmo after all, and are all but apoplectic that instead of the withdrawal and surrender in Afghanistan they've been seeking for a year, they're getting a surge.

Something had to be done to placate them, since they're the base and their enthusiasm will be needed in what promises to be a tough year in Congress (and an even tougher election in ten months). Thus the Blackwater defendants get served up. They were ideal for the purpose, since the left flank detested the Iraq war and the overthrowing of Saddam. Who better to sacrifice than the Blackwater guys?

Personally, I would have resigned before participating in a prosecution that so reeked of political calculation. Not one time in my nearly two decades at DOJ and the USAO did anyone ask me to take up a prosecution that has politics written all over it, as this one did.

I hope DOJ will learn something from Judge Urbina's opinion and not appeal the defeat they richly earned.

Posted by: Bill Otis | Jan 1, 2010 1:06:39 PM

Bill, you realize almost everything you said that fed this prosecution happened much, much after the decision to prosecute was made, right? Perhaps you could try again.

Posted by: Bail | Jan 1, 2010 3:50:42 PM

Ball --

Wake up. Whether to proceed with or abandon an on-going prosecution, particularly a complicated and prominent one like this, is subject to on-going review. I know. I was at DOJ for years, under administrations of both parties. Were you?

Example: The Obama administration voluntarily dropped the Stevens prosecution after an adverse district court ruling based on prosecutorial misconduct. It did not drop the case because Stevens was innocent (he very probably was NOT innocent), nor because it had no arguable grounds for appeal.

It dropped the prosecution for political reasons. The Democrats had already won his Senate seat, and Obama was still at the stage where he was trying to appear to make good on his campaign pledge of being a post-partisan. So irrespective of legal merit, the case was dropped because dropping it was the politically shrewd thing to do.

This case against the Blackwater people could also have been dropped at any time during the last 11 months. There were ample grounds to do so: The administration could have declared that the defendants, for whatever their wrongdoing, were actually mere pawns of Bush's misbegotten and disastrous Iraq policy; or that (as the court found) the immunization problems running throughout the case were too much to overcome.

But the case was not dropped, even though, on the merits as explained by Judge Urbina, it was untenable. Now why was that?

It was for the same reasons that dictated the outcome in the Stevens case: politics. For the reasons I explained, the politics of this stage of Obama's presidency (combined with the Democrats' long-standing, native disdain for Blackwater and everything Bush and his team had done in Iraq) dictated continuing to try to nail the security guards. The guards were, to Obama's DOJ, The Spawn of Dick Cheney. The Democratic base wanted them hanged. So, as Obama's political needs mounted -- as they did from quite early on in his presidency -- the case was not about to be dropped no matter how obvious it was to the career people at DOJ that it was in big-time trouble.

So on it went -- until justice prevailed yesterday.

I would ask if perhaps you could try again, but you're too naive and ignorant of how Washington actually works to make a go of it.

Posted by: Bill Otis | Jan 1, 2010 4:49:52 PM

Bill, prosecutors needn't be passive, but in a real nation of laws they should at least play by the rules.

For if they can bend the rules to nail homicidal Blackwater mercenaries in Iraq, they can (and sometimes do) bend it to nail innocent or falsely accused citizens here at home.

Beyond that, it's always somewhat puzzling to me on those ultra-rare occasions when judges lash out at prosecutors for trampling defendants' rights.

From what I've seen, the win-at-any-cost approach in the Blackwater case was pretty much business as usual for prosecutors in our system.

The only thing that seems to stand out was the State Department's astonishing, arrogant, misguided promise of immunity for the Blackwater killers in exchange for owning up to what they did.

Too bad there aren't more "activist" judges to reign in run-amok prosecutors.

Posted by: John K | Jan 2, 2010 10:55:55 AM

John K --

"For if they can bend the rules to nail homicidal Blackwater mercenaries in Iraq..."

I thought liberals opposed judgment before trial. Oh well. You learn something new every day on this blog.

You were all ready to buy whole cloth the I'm-a-victim story of the convicted mortgage broker who was growing fat off fraudulent loan applications in the salad days not so long ago, but you breezily condemn the UNconvicted Blackwater "mercenaries," men who faced danger-in-a-split-second of a kind I feel reasonably confident you have never known.

Could this be, like, a double-standard?

Posted by: Bill Otis | Jan 2, 2010 1:57:38 PM

The cases are similar in that neither the mercs nor the broker ever made it to trial, but that's where the similarities end.

To remind you, the broker reluctantly pleaded guilty only after prosecutors stacked charges until the plausible risks of losing at trial became unthinkable.

In an astonishing display of government power and leverage, prosecutors threatened the broker with 30 years. He ended up doing three months home detention.

Basically the broker was castigated as a felon for following a lending company's loan-app instructions on what to include (debt-asset ratios and credit scores) and what to leave out (anything else that might raise red flags in the lender's automated underwriting software).

The lender's instructions seemed irregular to the broker, but the broker's lawyer wrote it off as working a gray area and told him it was OK.

In yet another display of government power and imagination, prosecutors selected the lending company that directed the broker's actions as the designated victim in the case.

And that's particularly remarkable because the lender didn't view itself as a victim of the broker.

In fact, the broker was the only defendant named by prosecutors in the initial media blitz who was excluded from the lender's subsequent RICO lawsuit.

Never mind that in the same year the broker was convicted, the "victim" lending company paid a token settlement after ackknowledging its employees had forged thousands of signatures to underwriting documents in at least four states. Some victim.

As you also might recall, prosecutors squeezed the broker and two other small fish defendants for proffers to be used against the alleged big fish (closing attorney, title company officers, two appraisers, etc.)

But, alas, none of the big fish was ever prosecuted. And the three little fish ended up getting stuck with a $2 million restitution order that presumably would have been spread among 17 businesses and individuals had the government not lost interest in the case after getting some initial splashy headlines.

On the other hand, we have the trigger-happy, lethal Blackwater wild west show in Iraq...for which apparently no one will be held to account.

Tell me again, Bill, how do my views on these cases add up to double-standard liberalism?

To me they both appear to be clear cases of injustice.

The broker maybe, at worst, should have been fined along with his "victim" collaborator, the lending company.

American officials in Iran should have respected the loss of life to the extent of handling the case initially as a potential criminal matter.


Posted by: John K | Jan 3, 2010 9:43:48 AM


John K --

"The cases are similar in that neither the mercs nor the broker ever made it to trial..."

That's an odd way to put it. The Blackwater people never went to trial because the case was based on government deceit about how their statements would be used, and therefore got tossed out. Thus they stand today having been convicted of nothing. The loan broker "never made it to trial" because he chose not to, instead pleading guilty.

"To remind you, the broker reluctantly pleaded guilty only after prosecutors stacked charges until the plausible risks of losing at trial became unthinkable."

They stacked the charges because he stacked his crimes. You can't break into 100 houses and then complain when the indictment has 100 counts. Similarly, you can't do 100 (actually, it was more than 100) fraudlent loan applications, making a profit each time, and complain that they all show up as charges.

"In an astonishing display of government power and leverage, prosecutors threatened the broker with 30 years. He ended up doing three months home detention."

Sounds to me like he got a sweet deal. Three months' home confinement is a light sentence under any standard. The prosecutors gave away most of the case, against him and, I gather, almost everyone else.

If he didn't want to be "castigated" as a felon, he should have avoided committing felonies. As you acknowledged when you first described this case, and again now, he knew withholing required and essential financial information was dicey at the minimum.

"The lender's instructions seemed irregular to the broker, but the broker's lawyer wrote it off as working a gray area and told him it was OK."

No sensible person could have believed it was OK. Full information about an applicant's income and liabilities is essential in the mortgage business, or any lending business. Second, the advice of banks and private lawyers does not even arguably displace obeying black-and-white legal requirements. If you tell me that it's OK to withhold on my bar application that I was convicted of selling LSD (because the buyer knew its risks and I needed the money), am I entitled to rest on that advice in the face of a plain requirement that I disclose my record? To ask the question is to answer it.

What your description of the case actually sounds like is not so much prosecutorial overreeaching as prosecutorial lassitude. Your man got 98.7% of the counts dismissed and not a day of jail time, nor a fine; and, as you point out, the bigger fish got even more outlandishly devil-may-care treatment. Plus, as you tell it, the government just went to sleep on the restitution issue.

Some behemoth. Sounds like the prosecutors were more interested in not disturbing their lunch than in conducting their case.

"On the other hand, we have the trigger-happy, lethal Blackwater wild west show in Iraq...for which apparently no one will be held to account."

That their actions were lethal is beyond dispute. That they were trigger-happy, or in any other way criminal, is very much in dispute. They say they were ambushed; the other side says they opened fire without provocation.

Your double standard is this: Typically, liberals resist branding an accused as guilty before he has been adjudicated as such. This is particularly so where, as here, the facts are disputed and the defense story is plausible (if unproven). But that is not your stance in this instance. Instead, you acidly label the Blackwater guys as trigger-happy and (in your earlier post) "homicidal." You do this at the same time you have nothing but sympathy for the broker who was in fact guilty and admitted same.

That is a double standard.


Posted by: Bill Otis | Jan 3, 2010 11:42:34 AM

Hmmmm. Impervious to unfriendly facts and a terrier-like grip on the notion there's no such thing as an innocent or wrongly accused defendant.

I suspect it's that sort of intransigence that results in headlines such as this one: "Another federal judge assails federal prosecutors..."

I also suspect most reasonable folks who aren't former prosecutor or haven't been poisoned by the Justice Department's mortgage-broker demonization campaign, would have been somewhat more sympathetic to my mortgage broker's plight.

Posted by: John K | Jan 4, 2010 9:30:43 AM

"Hmmmm. Impervious to unfriendly facts and a terrier-like grip on the notion there's no such thing as an innocent or wrongly accused defendant."

Please quote the post in which I state or imply that there is no such thing as an innocent or wrongly accused defendant.

No talking points or sermons. Just quote the post.

Posted by: Bill Otis | Jan 4, 2010 12:35:32 PM

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