Thursday, December 31, 2009
On the last day of 2009, Hon. Ricardo M. Urbina issued a 90 page order that grants the defendants' Motion to Dismiss. The decision and a wonderful discussion of the case can be found in Del Quentin Wilber's, Washington Post article titled, Judge Dismisses All Charges in Blackwater Shooting. Although the alleged crime charged here was not white collar related, the opinion provides a discussion of important issues that can arise in federal white collar decisions - issues related to Kastigar. The defendants had argued that the "government violated their constitutional rights by utilizing statements they made to Department of State investigators, which were compelled under a threat of job loss." The government admitted that these statements cannot be used. (Garrity v. New Jersey) So the government was left trying to bring the case without using any of the statements. (Kastigar v. United States).
The court noted that "[t]he 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." The bottom line, according to the court, was that the government "utterly failed to prove that it made no impermissible use of the defendants' statements or that such use was harmless beyond a reasonable doubt."
Some highlights and my commentary:
- This one is perhaps a minor point in the decision, but one that should be noted by white collar prosecutors and defense attorneys. DOJ had presented evidence to a second grand jury in this case, but they failed to present some evidence that the defense claimed was exculpatory. Although in the case U.S. v. Williams the Supreme Court did not mandate that prosecutors present exculpatory material to a grand jury, DOJ guidelines tell prosecutors to do otherwise. This court noted, that "DOJ guidelines require prosecutors to present exculpatory evidence to the grand jury" and the court cited to the US Attorneys' Manual s 9-11.233. The reference to the US Attorneys' Manual, even though it is an internal document, is good to see as it is important for DOJ to stick with their internal guidelines. (My article on this issue is here).
- The court stated - "The Circuit's analysis in North I suggests that although no Kastigar violation occurs when a prosecutor's fleeting exposure to immunized testimony has a merely tangential influence on his or her thoughts about a case, a Kastigar violation may result when a prosecutor has had significant exposure to immunized testimony and makes significant nonevidentiary use of that testimony" p. 29-30. The government has faced this issue before.
- In discussing "harmless error" the court stated - "the defendants' compelled statements pervaded nearly every aspect of the government's investigation and prosecution, and the government's use of those statements appears to have played a critical role in the indictment against each of the defendants."
- Publicity surrounding a case can make it difficult for the government to get around Kastigar.
- Government agencies need to work closely with DOJ in cases that could involve criminal charges.
See also NYTimes, (AP) All Charges in Blackwater Case Are Dismissed