By Stephanie Russell-Kraf
Law360, New York (May 19, 2014, 5:54 PM ET) -- The U.S. and four former Blackwater Worldwide security contractors accused of killing 14 Iraqi citizens exchanged volleys in D.C. federal court Friday over evidence to be heard before a jury in June, further heating up the long-delayed case a federal judge has called “disturbing” and a “fiasco.”
Nicholas Slatten, Paul Slough, Evan Liberty and Dustin Heard, who face murder, manslaughter and weapons charges over the 2008 shooting of civilians in Baghdad’s Nisour Square, asked the court to exclude certain graphic images and expert testimony from the case, which it argued are unnecessarily prejudicial. They also sought to prohibit the government’s witnesses from wearing military uniforms to the trial, arguing the uniforms could unfairly affect the jury’s emotional response to the evidence.
“The distinctions between contractors and uniformed military personnel in combat zones have been highly politicized,” counsel for the defendants said. “The appearance of witnesses in full military uniform, in contrast to the defendants’ civilian attire, will permit the government to capitalize on political controversies to create unfair prejudice, confuse the issues, and mislead the jury.”
In its own motions, the government asked the court to keep defendants’ counsel from mentioning the fact that the weapons charge against them carries a minimum penalty of 30 years. Regardless of whether the men were legally allowed to carry weapons into the square, they are subject to the same statute because they committed a crime using those weapons, the government said.
Besides, the U.S. said, the possible punishment is not relevant to the trial and should not factor into the jury’s decision at all.
The U.S. also asked the court to exclude evidence about the allegedly heightened threat situation in Baghdad leading up to the shooting, which it argued is irrelevant to the self defense claims of the four contractors, who may not even have known the threat level at the time. Aside from being irrelevant to the defendants’ intent on the day of the shooting, the intelligence updates in question are also based on hearsay, the government said.
In a separate motion, the government asked for the exclusion of a slew of expert witnesses, arguing the contractors have not shown the experts are qualified or that their testimony is “relevant, reliable and would aid the jury in deciding a fact at issue.”
The long-winding case, which dates back to December 2008, accuses Slough, Liberty and Heard of manslaughter and Slatten of murder in connection with the notorious 2007 incident during which guards employed by Blackwater — now known as Academi — opened fire on a crowd in Baghdad’s Nisour Square while transporting a group of diplomats to a meeting, killing at least 14 Iraqi civilians and injuring another 20.
Under the Military Extraterritorial Jurisdiction Act, employees whose work internationally “relates to supporting the mission of the [DOD]” and who violate U.S. law while abroad can be tried in the U.S." But the contractors, who were employed by the State Department to provide diplomatic security for U.S. Embassy protectees in Baghdad, argue the government made no factual allegations showing they were employed in support of the DOD.
The case originally was dismissed in 2009, after U.S. District Judge Ricardo Urbina ruled it had been tainted by media reports, but was later revived by a D.C. Circuit panel, with theU.S. Department of Justice filing a new indictment in October.
U.S. District Judge Royce C. Lamberth on March 26 refused to dismiss the lawsuit, finding that neither the government nor its witnesses had made use of compelled, immunized statements before the grand jury. At the same time, the judge criticized the State Department for allowing immunized statements from the contractors to be leaked to the press and failing to find out who leaked them.
“If the Department of State and Diplomatic Security Service had tried deliberately to sabotage this prosecution, they could hardly have done a better job,” Judge Lamberth said in March.
The United States is represented by Anthony Asuncion, John Crabb , Jr., Michael John Dittoe, Paul Edward Ahern, Christopher Robert Kavanaugh, David Joseph Mudd, Joseph Nicholas Kaster and T. Patrick Martin.
Liberty is represented by William F. Coffield of Coffield Law Group LLP. Slough is represented by Brian M. Heberlig, Michael J. Baratz, Bruce C. Bishop, Linda C. Bailey and Scott P. Armstrong of Steptoe & Johnson LLP. Heard is represented by David Schertler and Danny C. Onorato of Schertler & Onorato LLP. Slatten is represented by Thomas G. Connolly and Steven A. Fredley of Wiltshire & Grannis LLP.
The cases are U.S. v. Paul Alvin Slough et al., case number 1:08-cr-00360, in the U.S. District Court for the District of Columbia and U.S. v. Nicholas A. Slatten, case number 1:14-cr-107, in the same court.
--Additional reporting by Kurt Orzeck.