Some key quotes:
The government has also acknowledged that its investigators, prosecutors and key witnesses were exposed to (and, indeed, aggressively sought out) many of the statements given by the defendants to State Department investigators. Under the binding precedent of the Supreme Court in Kastigar v. United States, 406 U.S. 441 (1971) and this Circuit in United States v. North, 910 F.2d 843 (D.C. Cir. 1990), the burden fell to the government to prove that it made no use whatsoever of these immunized statements or that any such use was harmless beyond any reasonable doubt. (Pg. 2)
From this extensive presentation of evidence and argument, the following conclusions ineluctably emerge. In their zeal to bring charges against the defendant in this case, the prosecutors and investigators aggressively sought out statements the defendants had been compelled to make to government investigators 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 Garrity and Kastigar issues, that this course of action threatened the viability of the prosecution. The government used the defendants’ compelled statements to guide its charging decisions, to formulate its theory of the case, to develop investigatory leads and, ultimately, to obtain the indictment in this case. The government’s key witnesses immersed themselves in the defendants’ compelled statements, and the evidence adduced at the Kastigar hearing plainly demonstrated that these compelled statements shaped portions of the witnesses’ testimony to the indicting grand jury.2 The explanations offered by the prosecutors and investigators in an= attempt to justify their actions and persuade the court that they did not use the defendants’ compelled testimony were all too often contradictory, unbelievable and lacking in credibility. (Pgs. 2 & 3)
The second grand jury was convened in late November 2008. Agent Powell, the sole live witness presented to the second grand jury, summarized evidence from Iraqi witnesses, as well as information from cooperating witness Ridgeway, who by this time had entered a guilty plea, and summarized portions of the prior grand jury testimony of Frost, Murphy and Mealy. See generally Govt’s Ex. 1. In addition, the prosecutors presented the second grand jury with redacted transcripts of the prior grand jury testimony of Frost, Murphy and Mealy, along with summaries prepared by the prosecutors of the evidence against each defendant. See generally id. By proceeding in this fashion, the prosecutors withheld from the second grand jury substantial exculpatory evidence that had been presented to the first grand jury. For instance, Raven 23 team members Thomas Vargas, Jeremy Skinner, Daniel Childers and Edward Randall all testified before the first grand jury that the Raven 23 convoy responded to incoming fire. Vargas testified before the first grand jury that approximately “five seconds after we pulled into our positions, we started taking fire†and that he “could hear AK-47 fire†and “immediately saw two insurgents.†Hr’g Tr., Nov. 3, 2009 a.m. at 10. Skinner likewise testified that he heard gunfire and saw “two distinct separate muzzle flashes†fired by insurgents at the Raven 23 convoy. Id. at 12. Childers testified that he heard incoming gunfire coming from his seven to eight o’clock position. Id. at 17. And Randall testified that the Raven 23 convoy took fire from the south and southwest and that he saw a round impact the side of one of the vehicles. Id. at 18- Case 1:08-cr-00360-RMU Document 217 Filed 12/31/09 Page 22 of 90
19. Although Malis acknowledged that this testimony corroborated the defendants’ self-defense theory, none of this testimony was presented to the second grand jury. Id. at 10-19. Indeed, Malis testified that he chose not to present the testimony of these witnesses to the second grand jury because the testimony indicated that the witnesses were “hostile†to the prosecution. Hr’g Tr., Nov. 2, 2009 a.m. at 22. DOJ guidelines require prosecutors to present exculpatory evidence to the grand jury. United States Attorneys’ Manual § 9-11.233 (stating that “t is the policy of the Department of Justice . . . that when a prosecutor conducting a grand jury inquiry is personally aware of substantial evidence that directly negates the guilt of a subject of the investigation, the prosecutor must present or otherwise disclose such evidence to the grand jury before seeking an indictment against such a personâ€).
The government also redacted exculpatory portions of the testimony of Frost, Murphy and Mealy. (Pgs. 22 & 23)
Without question, the testimony of Frost, Murphy and Mealy played a critical role in the government’s presentations to the first and second grand juries. These witnesses identified which members of the Raven 23 convoy were the shooters, provided detailed accounts of the events that occurred at Nisur Square and testified regarding the absence of any threat justifying the defendants’ actions. See generally GJ Exs. 89-94. Among all of the Raven 23 team members who testified at the first grand jury, the prosecutors chose to rely solely on the testimony of Frost, Murphy and Mealy to obtain the indictment from the second grand jury. See generally id.
It is equally clear that by the time they testified at the first grand jury, Frost and Murphy had been thoroughly immersed in the defendants’ compelled Garrity statements.38 Media reports alluding to the statements made to DSS investigators began to appear almost immediately after the incident, see, e.g., Defs.’ Media Exs. 23, 28, and excerpts from the defendants’ written statements began to appear shortly thereafter, see, e.g., Defs.’ Media Exs. 2, 6, 7, 13, 14, 23. Frost indicated that in the days following the shooting, he read numerous news reports on the Internet regarding the events at Nisur Square. Defs.’ Frost Ex. 6 at 1. Frost and Murphy both set up “Google News†alerts, through which they were e-mailed multiple news articles each day regarding the Nisur Square incident. Hr’g Tr., Oct. 21, 2009 p.m. at 26-27; Hr’g Tr., Oct. 14, 2009 p.m. at 27. Frost and Murphy both acknowledged reading the September 18 written statements of defendants Slatten and Slough, and Murphy further acknowledged reading the written statement of defendant Ball as well, all of which had been posted on the Internet. Hr’g Tr., Oct. 21, 2009 p.m. at 25-26; Hr’g Tr., Oct. 14, 2009 p.m. at 6, 74-75, 88-89. And on October 2, 2007, Frost and Murphy received an e-mail from Raven 23 team member Edward Randall containing a link to an ABC News televised report, which purported to be based on the written statements of all nineteen Raven 23 members and quoted extensively from several statements, including Slough’s. See Defs.’ Murphy Ex. 8; Hr’g Tr., Oct. 14, 2009 p.m. at 7. Neither Frost nor Murphy recalled ever being warned by the government’s trial team to avoid exposure to news coverage about the incident or to the sworn statements given by the defendants. Hr’g Tr., Oct. 14, 2009 p.m. at 64; Hr’g Tr., Oct. 21, 2009 p.m. at 27.(Pgs 51 & 52)
It is clear from this evidence that beginning in the first months of the investigation and throughout its duration, the trial team aggressively sought out and obtained the substance not only of the defendants’ September 16 interview statements, but also of the defendants’ subsequent statements to the DSS investigators, which the government has never disputed were compelled and tainted. The trial team members immersed themselves in the defendants’ compelled statements long before obtaining the indictment in December 2008. (Pg. 81)
In this case, by contrast, it is abundantly clear that the defendants’ compelled statements did have a value to the prosecution. Defendants Slough, Slatten, Heard and Ball acknowledged having fired their weapons and specified the types of weapons they had used, the number of shots they had fired and the directions in which they had fired. See supra Part II.A.2. All of the defendants specified in great detail the locations of the various insurgent threats they had allegedly seen and specified the directions from which they had purportedly taken fire. See id. Agent Patarini testified that he may have used the information he obtained from the defendants’ statements to DSS investigators in questioning witnesses.
In the face of the unrefuted evidence that the trial team risked the entire prosecution in aggressively seeking out the defendants’ compelled statements, which provided a wealth of valuable information, the government asks this court to credit the conclusory assertions of Kohl and the rest of the trial team that they made no use of these statements to further the prosecution. Govt’s Mem. at 14, 41. The government asks too much.
It simply defies common sense that the prosecution would go to such incredible lengths to obtain the defendants’ compelled statements, flouting the advice of the taint team and taking actions that even Kohl acknowledged came “close to the line,†and then make no use whatsoever of the fruits of their efforts.
These facts do not describe a case of fleeting exposure late in the game that may have tangentially affected the trial team’s thought processes. See North I, 910 F.2d at 859. Rather, they reveal that the trial team went to great lengths and knowingly took great risks, at the early stages of the prosecution, to obtain statements that provided a wealth of information valuable to the prosecution. Given the prosecution’s early, ongoing and intentional immersion in the defendants’ compelled statements, the government bore the burden of demonstrating that it made no significant nonevidentiary use of the defendants’ statements. (Pgs. 84 & 85)
The evidence strongly indicates that the physical search conducted by DSS investigators was guided by the defendants’ compelled statements. On September 20, 2007, DSS investigators interviewed the four defendants who had acknowledged firing their weapons to focus on “the specific details†of the written accounts they had given on September 18, 2007. See Defs.’ Carpenter Ex. 9. Agent Farrington testified that Agent Carpenter directed them to obtain these “specific details†to assist the DSS agents in the physical search of the Nisur Square traffic circle conducted later that day.65 Hr’g Tr., Oct. 16, 2009 p.m. at 22-23. Agent Motley informed the trial team that the physical search of the Nisur Square area was based on the defendants’ oral statements to investigators on September 20, 2007, and was designed to test the accounts given by the defendants. Hr’g Tr., Oct. 16, 2009 a.m. at 73. And although Agent Carpenter testified that there were no areas of Nisur Square that his agents would not have searched but for the information provided in the September 16, 2007 interviews ... (Pgs. 86 & 87)
The question before the court was whether the government's case had been tainted by use of immunized compelled statements, and that was the focus of the court's decision. Thus, references to exculpatory evidence and the withholding thereof are somewhat incidental to
the issue decided. The decision, as the quotes above indicate, shows how the entire process - from investigations through the indictment hearings - was tainted and corrupted by use of the immunized compelled statements. This was no abstruse nit-picking technicality. It was pervasive prosecutorial misconduct that should be prosecuted.
Of course a self-defense claim would be weighed by the trial jury (or judge, if they decided to forgo a jury). That is common sense, and, frankly, is the reason I didn't post to that effect. But that presumes a valid indictment. This decision rules that the indictment was improperly obtained, particularly arising from the uses of the immunized compelled statements. Thus no valid indictment.
However, the decision also note that exculpatory evidence - testimony
and physical - was withheld from the grand jury. That withheld evidence also could have led to these defendants not being indicted.
