The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
GRANTING THE DEFENDANTS'MOTION TO DISMISS THE INDICTMENT; DENYING AS MOOT THE GOVERNMENT'S MOTION TO DISMISS THE INDICTMENT AGAINST DEFENDANT SLATTEN WITHOUT PREJUDICE
[T]he basic purposes that lie behind the privilege against self-incrimination do not relate to protecting the innocent from conviction, but rather to preserving the integrity of a judicial system in which even the guilty are not to be convicted unless the prosecution shoulder the entire load.*fn1
The defendants have been charged with voluntary manslaughter and firearms violations arising out of a shooting that occurred in Baghdad, Iraq on September 16, 2007. They contend that in the course of this prosecution, 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 has acknowledged that many of these statements qualify as compelled statements under Garrity v. New Jersey, 385 U.S. 493 (1967), which held that the Fifth Amendment privilege against self-incrimination bars the government from using statements compelled under a threat of job loss in a subsequent criminal prosecution. The Fifth Amendment automatically confers use and derivative use immunity on statements compelled under Garrity; this means that in seeking an indictment from a grand jury or a conviction at trial, the government is prohibited from using such compelled statements or any evidence obtained as a result of those statements.
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.
Beginning on October 14, 2009, this court convened a Kastigar hearing to explore whether the government had made any use of compelled statements during its prosecution of the defendants. During this hearing, which spanned three weeks, the parties presented testimony from twenty-five witnesses, including the government's entire prosecution team, the lead FBI agents in charge of the investigation and all five defendants. The parties offered hundreds of exhibits into evidence and submitted voluminous pre- and post-hearing memoranda.
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.*fn2 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.
In short, the government has utterly failed to prove that it made no impermissible use of the defendants' statements or that such use was harmless beyond a reasonable doubt. Accordingly, the court must dismiss the indictment against all of the defendants.
1. The Nisur Square Incident
The defendants -- Paul Slough, Evan Liberty, Dustin Heard, Donald Ball and Nicholas Slatten -- were security guards employed by Blackwater Worldwide ("Blackwater"), a private company that provided security services to U.S. government employees operating in Iraq. Govt's Pre-Hr'g Mem. at 2. On September 16, 2007, the defendants were part of a Blackwater Tactical Support Team answering to the call sign "Raven 23," whose function was to provide back-up fire support for other Blackwater personal security details operating in Baghdad. Id.
The Raven 23 convoy consisted of four vehicles. Govt's Ex. 2.*fn3 Defendant Ball functioned as the rear turret gunner on the lead vehicle. Id. Defendants Liberty, Slough and Slatten were positioned in the third vehicle as the driver, turret gunner and designated defensive marksman (or sniper) respectively. Id. Defendant Heard was the rear turret gunner in the fourth vehicle. Id. Jeremy Ridgeway, who pleaded guilty to charges stemming from the incident and has been cooperating with the government, functioned as the lead turret gunner in the fourth vehicle. Id. The defendants were armed with machine guns, grenade launchers, rifles and pistols. Govt's Post-Hr'g Mem. ("Govt's Mem.") at 2.
Shortly before noon on September 16, 2007, Raven 23 received a message that a vehicle-borne improvised explosive device ("VBIED") had detonated in the vicinity of a compound in which U.S. officials were meeting with Iraqi officials. Defs.' Mot. for an Evidentiary Hr'g Under Garrity and Kastigar at 4. The Raven 23 convoy subsequently took up positions in Nisur Square, a traffic circle located just outside the International Zone in downtown Baghdad, to secure an evacuation route for the American officials and the Blackwater team providing their security. Id. Soon after the Raven 23 vehicles entered the traffic circle, a shooting incident erupted, during which the defendants allegedly shot and killed fourteen persons and wounded twenty others. Govt's Mem. at 2. The government contends that the dead and wounded were unarmed civilians who were the victims of unprovoked violence by the defendants. The defendants maintain that they came under attack by insurgents and that their actions constituted a legitimate response to a mortal threat.
The paroxysm of violence that occurred on September 16, 2007 in Nisur Square triggered immediate responses that would have far-reaching consequences. As discussed below, the State Department, the U.S. military and Iraqi forces commenced immediate inquiries into the shooting. Media began investigating the incident, interviewing eyewitnesses and probing sources in the U.S. government. And ultimately, the decision was made to commence a criminal prosecution against the defendants in this case.
2. The Defendants' September 16, 2007 Statements to State Department Investigators
Hours after the shooting, the Department of State's Diplomatic Security Service ("DSS") directed all the members of the Raven 23 convoy to submit to interviews at the State Department offices in Baghdad, which are referred to by U.S. personnel as "the Palace." Hr'g Tr., Oct. 14, 2009 p.m. at 20;*fn4 Hr'g Tr., Oct. 19, 2009 a.m. at 99-100; Defs.' Post-Hr'g Mem. ("Defs.' Mem.") at 5; Govt's Mem. at 3. DSS Special Agent Theodore Carpenter oversaw these interviews, see Govt's Mem. at 5, which were conducted by DSS Special Agents Michael Scollan, Lisa Lopez, Mario Reta and David Motley, see Defs.' Mem. at 6-7.
The September 16, 2007 interviews delved into the particulars of the Nisur Square shooting. The defendants and the other members of the Raven 23 convoy provided the interviewing DSS agents with detailed accounts of the actions they purportedly took at Nisur Square. From these accounts, the DSS agents subsequently prepared two "Memorandum Reports of Interviews" that memorialized these oral statements. See generally Defs.' Reta Ex. 3*fn5 (Mem. Report of Interview, Sept. 16, 2007); Defs.' Lopez Ex. 3 (Mem. Report of Interview, Sept. 16, 2007).
During the September 16, 2007 interviews, four of the five defendants acknowledged that they had fired their weapons at Nisur Square. Defendant Slough, the turret gunner in the third vehicle in the convoy, reportedly stated to DSS agents that
[a] white vehicle approached the team at a high rate of speed and would not stop despite his hand signals and throwing a water bottle. Other civilians tried to wave the vehicle down, but it still would not stop. [Slough] engaged and hit the driver. An Iraqi Policeman, wearing [a] blue button down shirt and black pants, began to push the vehicle towards [the] team. [Slough] engaged [the] vehicle a second time and [the] Iraqi Policeman ran away. [Slough] then witnessed muzzle flashes from a shack, returned fire, and hit the individual.
Defendant Slatten, also stationed in the third vehicle, reportedly told the DSS agents that the Raven 23 convoy began "receiving small arms fire from the left side of their vehicles by two individuals in the tree line. [Slatten] returned fire with two rounds hitting one of the individuals." Id. Defendant Heard, positioned in the rear vehicle, stated that he "fired on the white vehicle that refused to stop with approximately one full magazine from [his] M-4. He then saw muzzle flashes from an individual several meters behind [the] white vehicle and engaged [that individual] with five to ten rounds from [his] M-4. He continued to receive fire from the individual and responded with one round from his 203."*fn6 Id. Defendant Ball acknowledged to DSS Agents Scollan and Reta that he fired two rounds into the driver's door of the white vehicle engaged by Slough and Heard. Defs.' Reta Ex. 3 at 2.
Defendant Liberty did not acknowledge firing his weapon during his September 16, 2007 interview. See id. at 3-4. He did, however, disclose that the convoy "started receiving small arms fire from the six o'clock position," that he "saw two to three Iraqi Police officers with AK-47s shooting at Raven 23 members," and that he "saw one Iraqi Police combatant neutralized at the guard shack, approximately 25 meters away, and a second neutralized in the south-east corner of the traffic circle." Id. He specified that "most of the hostile activity toward Raven-23 . . . came from his 7 to 9 o'clock position." Id.
The September 16, 2007 interviews appear to have been conducted in connection with the reporting procedures set forth in a State Department memorandum authored by Regional Security Officer Mark Hunter and titled "WPPS*fn7 On-Duty Discharge of Firearm Reporting Procedures" ("the Hunter Memorandum"). See Govt's Ex. 32 at 1-2; Govt's Mem. at 4. The Hunter Memorandum required all Blackwater personnel involved in a shooting incident to report immediately to the Regional Security Office Tactical Operations Center for a debriefing by State Department officials. Govt's Ex. 32 at 1. After the debriefing, any employee who discharged his weapon was to be given a form, a template for which was attached to the Hunter Memorandum, on which to prepare a written statement. Id. The form, which bore the heading "Sworn Statement," provided as follows:
I, _____________, hereby make the following statement at the request of _____________, who has been identified to me as a Special Agent of the U.S. Department of State, Diplomatic Security Service. I understand that this statement is made in furtherance of an official administrative inquiry regarding potential misconduct or improper performance of official duties and that disciplinary action, including dismissal from the Department's Worldwide Personnel Protective Services contract, may be undertaken if I refuse to provide this statement or fail to do so fully and truthfully. I further understand that neither my statements nor any information or evidence gained by reason of my statements can be used against me in a criminal proceeding, except that if I knowingly and willfully provide false statements or information, I may be criminally prosecuted for that action under 18 United States Code, Section 1001.
Id. at 3 (emphasis added). This admonishment -- that an employee must make a statement or face termination but that any statement so made cannot be used in a subsequent criminal prosecution -- is commonly referred to as a "Garrity warning" or "Kalkines warning." See Garrity, 385 U.S. at 500; Kalkines v. United States, 473 F.2d 1391, 1393 (Ct. Cl. 1973) (holding that prosecutors may not use statements compelled under a threat of removal from office or use any information derived from those statements). Prior to the Nisur Square shooting, all of the defendants had been involved in previous shooting incidents, after which they had been required to provide a sworn written statement on the form described above. See Hr'g Tr., Oct. 27, 2009 a.m. at 10-11; Hr'g Tr., Nov. 3, 2009 p.m. at 49-50, 82-83, 117, 136-37.
4. The Defendants' September 18, 2007 Written Statements and the State Department's Continuing Investigation
On September 18, 2007, the defendants and their fellow Raven 23 team members submitted written statements regarding their actions at Nisur Square to the State Department on the Hunter Memorandum form.*fn8 Defs.' Hulser Ex. 17 at 3 (Letter from Prosecutor Joseph Kaster to Defense Counsel, June 30, 2009) ("Govt's June 30, 2009 Letter"). The defendants' September 18 written statements expanded on the oral statements they gave to DSS investigators on September 16. See generally Slough Stmt. (Sept. 18, 2007); Slatten Stmt. (Sept. 18, 2007); Ball Stmt. (Sept. 18, 2007); Heard Stmt. (Sept. 18, 2007); Liberty Stmt. (Sept. 18, 2007); see also Defs.' Farrington Ex. 4.
On September 18, 2007, at the Iraqi National Police ("INP") Headquarters, DSS investigators also interviewed fourteen Iraqi nationals who claimed to have witnessed the Nisur Square incident. Defs.' Carpenter Ex. 8. The interviewees were identified by the INP and many were INP officers or traffic policemen posted at Nisur Square at the time of the incident. Id. In a memorandum summarizing these interviews, Agent Carpenter stated that "[s]ome of the questions asked of these witnesses may have been formed as a result of information provided by [Raven] 23, but was limited due to not wanting to divulge what we had been told by [Raven] 23 and to just get the witnesses' observations of the incident." Id.
Over the following days, defendants Slough, Slatten, Ball and Heard submitted to additional questioning by DSS agents regarding their actions at Nisur Square. See Defs.' Carpenter Ex. 9; Defs.' Lopez Ex. 5; Govt's Mem. at 6. On September 20, 2007, several DSS investigators, including Agent Carpenter, interviewed these four defendants in an effort to focus on "the specific details" of the Nisur Square incident in light of the sworn statements submitted two days earlier. See Defs.' Carpenter Ex. 9. Later that day, DSS investigators conducted an incident scene investigation at the Nisur Square traffic circle. Defs.' Carpenter Ex. 8. DSS investigators took photographs, interviewed additional witness and collected physical evidence for analysis. Id.
On September 23, 2007, Agents Carpenter and Scollan re-interviewed Slough "to clarify details relating to the threat types and locations engaged by Slough, weapons used to engage the threats, and the number of rounds fired at each threat." See Defs.' Scollan Ex. 4 (Mem. Report of Interview, Sept. 23, 2007) at 1. The interview report states that at the outset of the interview, "Carpenter admonished Slough of the Kalkine warning concerning the administrative nature of the investigation, and reminded him, that should he provide a false statement, he could be criminally prosecuted for giving the false statement." Id. During this interview, Slough acknowledged for the first time that he had fired an M203 grenade at the white sedan. Id. at 2.
On September 24, 2007, DSS agents conducted additional re-interviews of Slough, Heard and Ball to specifically address the number of grenades fired during the Nisur Square incident. See Defs.' Scollan Ex. 5. During these interviews, the defendants were shown photographs of the scene as well as aerial photographs of the traffic circle and were asked to specify the directions in which they had fired their weapons and the locations of the threats they had allegedly seen. Id.
5. Dissemination of the Defendants' Statements Made to DSS Investigators
Because of the nature of use immunity, Garrity statements may present thorny legal issues, even when the statement, itself, has not been introduced at trial or even seen by the prosecution team. This is true because an internal investigator, or other person having access to the Garrity statement, may reveal its contents to a federal investigator, prosecution witness, or the media -- sometimes without revealing its source. When this happens, it is possible that the testimony of other witnesses may become contaminated.*fn9
Media reports regarding the Nisur Square shooting began to appear almost immediately after the incident. Several of these early reports included statements from State Department officials asserting that Raven 23 had been engaged in a firefight at Nisur Square and that its actions were taken to neutralize various insurgent threats. See, e.g., Defs.' Media Exs. 22, 23, 24, 25.*fn10 Some of these articles made specific reference to the fact that some Raven 23 team members claimed that they had received incoming fire. See Defs.' Media Ex. 28.
In the following days, the defendants' September 18 written statements, which the government has conceded were compelled under Garrity, were leaked to the media and disseminated globally in news reports. See, e.g., Defs.' Media Exs. 2, 6, 7. The earliest of these reports was a September 28, 2007 article in which ABC News reported that it had obtained "sworn statements given to State Department investigators" in which Blackwater personnel described the events that had occurred at Nisur Square. Defs.' Media Ex. 2. The report quoted from the defendants' September 18 written statements. Id. Later, the Washington Post published an article contrasting the accounts of the four Raven 23 team members with those of Iraqi eyewitnesses. Defs.' Media Ex. 13. On November 14, 2007, ABC News posted Slough's September 18 written statement, in its entirety, on its website. Defs.' Media Ex. 7. Ultimately, portions of the defendants' September 18 statements appeared in reports by ABC News (including in a nationally broadcast television segment), MSNBC/Newsweek, the Washington Post, the New York Times and Time/CNN, among other sources. See Defs.' Media Exs. 2, 6, 7, 13, 14, 23.
Press accounts regarding the Nisur Square incident pervaded the national news in both Iraq and the United States for two weeks. Through these reports, Adam Frost, Matthew Murphy and Mark Mealy -- members of the Raven 23 convoy and key witnesses for the prosecution -- were repeatedly exposed to the defendants' September 18 written statements. Frost and Murphy both acknowledged reading the September 18 statements of Slatten and Slough, Hr'g Tr., Oct. 21, 2009 p.m. at 25-26; Hr'g Tr., Oct. 14, 2009 p.m. at 6, and seeing countless news articles regarding the incident through their "Google News" alerts, many of which referenced and quoted the defendants' sworn statements, Hr'g Tr., Oct. 21, 2009 p.m. at 26-27; Hr'g Tr., Oct. 14, 2009 p.m. at 27. Likewise, Mealy acknowledged that he may have read the sworn written statements of other Raven 23 team members. Hr'g Tr., Oct. 19, 2009 a.m. at 54.
6. The Investigations by Iraqi Forces, the U.S. Military and the Prosecution
Immediately after the Raven 23 convoy left Nisur Square on September 16, 2007, INP officers entered the traffic circle and commenced an investigation. Govt's Mem. at 7. These officers began collecting physical evidence, including shell casings and spent ammunition magazines, one of which had the name "Liberty" written on it. Id. In addition, Iraqi police interviewed victims and eyewitnesses, including fellow INP officers. Id.
Within thirty minutes of the shootings, U.S. Army Colonel David Boslego, who had been responsible for training the INP and was present at INP Headquarters, also arrived at the Nisur Square traffic circle. Id. Colonel Boslego examined the scene for evidence of an insurgent attack. Id. Although he found no evidence of insurgent activity, he discovered numerous American shell casings, a spent M203 grenade cartridge and two spent magazines bearing the name "Liberty." Id. at 7-8.
Another high-ranking American officer, Colonel Michael Tarsa, arrived to inspect the scene within an hour after the incident. Id. at 8. Colonel Tarsa was the battalion commander responsible for operations in the area of Baghdad that included Nisur Square. Hr'g Tr., Oct. 21, 2009 a.m. at 13-14. Like Colonel Boslego, Colonel Tarsa observed numerous shell casings but found no evidence of an insurgent attack. Id. at 25-26.
In early October 2007, FBI investigators arrived in Baghdad to investigate the Nisur Square shooting. Govt's Ex. 207. Over the next several weeks, FBI investigators interviewed over seventy-five Iraqi witnesses and victims identified by the INP. Govt's Mem. at 7. The FBI also conducted dozens of interviews of Blackwater personnel, U.S. military police and INP officers. Hr'g Tr., Oct. 21, 2009 p.m. 102-03. FBI investigators collected physical evidence from the scene, such as shell casings, bullet fragments and weapons, and examined the vehicles allegedly fired on by the defendants, the Raven 23 vehicles and the defendants' weapons. Govt's Mem. at 9.
Among the Blackwater personnel interviewed were members of the Raven 23 convoy still present in Iraq. Hr'g Tr., Oct. 21, 2009 p.m. at 103-04. Three of the individuals interviewed -- Adam Frost, Matt Murphy and Mark Mealy -- had raised concerns about the events at Nisur Square with their Blackwater supervisors in the immediate aftermath of the shooting. Hr'g Tr., Oct. 14, 2009 a.m. at 34-35. All three expressed a willingness to cooperate with the government's investigation. Hr'g Tr., Oct. 21, 2009 p.m. at 114; Hr'g Tr., Oct. 19, 2009 a.m. at 26; Govt's Ex. 207 at 11.
7. Hulser's Cautionary Intervention
A defendant's rights under Garrity are protected, in part, by self-policing by government prosecutors. This happens, in large measure, by prosecutors having potential Garrity materials reviewed and redacted by persons who are not part of the prosecution team.*fn11
On September 26, 2007, representatives of the FBI and the Department of Justice ("DOJ") Criminal Division met with State Department representatives to discuss the preliminary findings of the DSS investigation into the Nisur Square shooting. Defs.' Mot. for Evidentiary Hr'g Under Kastigar and Garrity, Ex. 23 (Letter from Prosecutor Joseph Kaster to Defense Counsel, May 29, 2009) ("Govt's May 29, 2009 Letter") at 2. At that meeting, State Department representatives distributed copies of a DSS report that summarized the State Department's initial findings, including information gained from the oral and written statements provided by the defendants to DSS investigators. Id.
On September 28, 2007, the State Department's Office of Legal Counsel contacted the DOJ's Criminal Division and expressed concern that some of the information used to prepare the DSS report may have been based on compelled statements made by Blackwater personnel. Id. In light of these concerns, the government assigned to the case a team of prosecutors and investigators who had not participated in the September 26, 2007 meeting and had not been exposed to the information discussed at that meeting. Id. The government barred the DOJ Criminal Division from further involvement in the case and assigned prosecutors in the Counterterrorism Section of the National Security Division (and later the United States Attorney's Office for the District of Columbia) to investigate the Nisur Square shooting. Id.; Hr'g Tr., Oct. 22, 2009 p.m. at 78. Assistant United States Attorney Kenneth Kohl was assigned to lead the new trial team, to be assisted by Department of Justice trial attorney Stephen Ponticello.*fn12 Defs.' Mem. at 26. FBI Special Agent John Patarini was assigned as the team leader and case agent for the investigative team. Hr'g Tr., Oct. 21, 2009 p.m. at 63-64.
In early October 2007, Raymond Hulser, a Deputy Chief in the Public Integrity Section of the Criminal Division, was assigned as the "taint attorney" for the Nisur Square investigation. Govt's May 29, 2009 Letter at 3. He was selected for that role because of his experience with Garrity and Kastigar issues. Hr'g Tr., Oct. 23, 2009 a.m. at 17-18. As head of the "taint team," Hulser was charged with "prevent[ing] the prosecutors and investigators who were to handle the investigation from being exposed to potentially compelled statements or information derived from such statements" by pre-screening information obtained from sources including the State Department, Blackwater and the media, prior to the disclosure of such information to the trial team. Govt's May 29, 2009 Letter at 3. In addition, in October 2007, Hulser and Jesse Tampio, a State Department attorney, drafted a written protocol to govern the use of information derived from DSS personnel in the course of the investigation. Id.; see Defs.' Hulser Ex. 2. The protocol was designed to prevent the FBI investigative team operating in Baghdad from exposure to information derived from any potentially compelled statements obtained by DSS investigators. Govt's Mem. at 6; Defs.' Hulser Ex. 2.
8. Failure of the Government's Taint Procedures
Unless the government relies solely upon evidence obtained prior to the immunized testimony, the principles of Kastigar generally require (as a practical matter) a showing that prosecuting officials and their agents were aware of the immunity problem and followed reliable procedures for segregating the immunized testimony and its fruits from officials pursuing any subsequent investigations.*fn13
By all accounts, these prophylactic measures fell well short of expectations, particularly with respect to the defendants' September 16, 2007 oral statements to DSS investigators. Throughout the investigation, Hulser repeatedly advised the trial team not to obtain or rely on any information derived from the defendants' September 16 oral interview statements. For instance, on November 29, 2007, Hulser wrote an e-mail to Michael Mullaney, a Section Chief within the DOJ's National Security Division,*fn14 in which he stated that "[w]hile no Kalkines warning was given before [the September 16, 2007] interviews, I believe that we should treat all of their statements to the [DSS agents] as compelled given the practice of routinely giving the Kalkines warning to the participants in a shooting." Defs.' Kohl Ex. 10. Mullaney forwarded Hulser's e-mail to Kohl, who responded, "Got it. Thanks Mike."*fn15 Id.
On December 10, 2007, Hulser wrote to Mullaney expressing concern about the trial team's intention to interview Agent Carpenter and other DSS agents who had interviewed the defendants and participated in the Nisur Square investigation. See Govt's Ex. 57 at 1. As Hulser explained, "[g]iven that they took, reviewed and/or wrote a report based on compelled statements, they are thoroughly tainted, and even the focus of the investigative steps that they took would have been affected by the compelled statements." Id. (emphasis added).
On January 15, 2008, Hulser again wrote to Mullaney, advising him that he viewed "any statements taken after the 9/16 incident whether they occurred before or after the sworn, written statements" as potentially compelled. Defs.' Hulser Ex. 10. Hulser reasoned that "[g]iven the routine practice of getting compelled written statements following shooting incidents, and given that the Team 23 members had themselves provided compelled statements following prior incidents, the Team 23 members may claim that they thought all of their post-shooting statements and interviews were compelled, regardless of the form in which they were taken or the order in which they provided them." Id. Hulser then reiterated that the FBI needs to understand that in interviewing Ted Carpenter, who was involved in the initial investigation and who is thoroughly tainted, there is a substantial risk that the FBI will be tainted. It is not only Ted's written interview reports and notes that contain tainted materials; rather, his thought processes, the focus of his investigation, what he looked at and when -- these may all have been influenced by compelled statements. We've got an uphill battle on this Garrity issue, and the burden of proof is ours, so we need to be particularly cautious.
Likewise, on February 4, 2008, Hulser wrote an e-mail to Mullaney stating that he believed "any statement given by the 9/16 participants following the incident, whether in the form of interviews, after-action-reports, or written statements with Kalkines warnings should be treated as compelled because of the pervasive practice of compelling them to give statements after every incident." Defs.' Hulser Ex. 6. In a separate e-mail also sent on February 4, 2008, Hulser advised Mullaney that he did not plan to provide the trial team with any reports of Agent Lopez's interviews of the defendants "or any summary or spot reports, as those materials may contain information from compelled (or arguably compelled) statements of the individuals who remain subjects" of the investigation.*fn16 Defs.' Kohl Ex. 16.
In direct contravention of Hulser's unequivocal warnings, in January and February 2008, the government's trial team interviewed all of the DSS agents who had conducted the September 16, 2007 interviews and specifically inquired about the details of the defendants' statements during those interviews. Defs.' Mem. at 28; Govt's Mem. at 13-14. For instance, on January 11, 2008, the trial team interviewed Agent Carpenter, whom Hulser had specifically described as "thoroughly tainted," Defs.' Hulser Ex. 10, and obtained information regarding the defendants' statements to DSS investigators, Hr'g Tr., Oct. 19, 2009 a.m. at 30. Two weeks later, the trial team interviewed Agent Lopez and obtained her interview notes from the interviews conducted on September 16, 2007. Hr'g Tr., Oct. 15, 2009 p.m. at 60-61. Indeed, Kohl testified that both he and his investigators were exposed to a tremendous amount of information from the defendants' September 16, 2007 interview statements.*fn17 Hr'g Tr., Oct. 29, 2009 a.m. at 115.
Furthermore, in February 2008, prosecutors used the defendants' September 16, 2007 statements to obtain a search warrant authorizing the government to search the e-mail accounts of the Raven 23 team members to obtain unsigned drafts of their September 18, 2007 written statements.*fn18 See Defs.' Mem. at 31-32; see generally Govt's Ex. 288. To demonstrate probable cause justifying the search, Agent Patarini noted in his affidavit that "within hours after the incident, all 19 members of [Raven 23] were interviewed by agents of the [DSS]" and that "[t]hese interviews confirmed that only a few of the guards actually fired their weapons." Govt's Ex. 288 at 8. Hulser was never informed about the search warrant and never approved the use of the September 16 interview statements to obtain the search warrant for the September 18 written statements.*fn19 Hr'g Tr., Oct. 23, 2009 a.m. at 28-29. Hulser testified that had he been informed, he would not have permitted the trial team to view any records obtained from the search prior to screening by a taint attorney. Id.
Agent Patarini executed the search warrant on February 15, 2008 and obtained drafts of the September 18 written statements of defendants Ball and Slatten. Hr'g Tr., Oct. 22, 2009 p.m. at 14-17. Agent Patarini reviewed the draft statements in the spring or summer of 2008 and included those statements in a binder of search warrant materials he provided to the prosecution team. Id. at 17-22; Hr'g Tr., Oct. 28, 2009 p.m. at 46. Kohl testified that he admonished Agent Patarini for reviewing the draft statements and directed him not to disclose the contents of those statements. Hr'g Tr., Oct. 28, 2009 p.m. at 46. However, Agent Patarini testified on this point and before the court that the search warrant was "a project driven by [Kohl]." Hr'g Tr., Oct. 22, 2009 p.m. at 23.
The divergent views of Hulser and Kohl regarding the status and viability of the defendants' September 16 interview statements came to the fore in April 2008. On April 11, 2008, Kohl wrote to Hulser expressing frustration at Hulser's reluctance to approve the trial team's use of "incident reports," given his understanding that Hulser had "previously approved and cleared other materials that contain statements made by the targets of our investigation, on the theory that the reports and notes were generated prior to the existence of the sworn Kalkines statements made by these individuals." Defs.' Hulser Ex. 8. Hulser responded that he had never approved the use of such statements by the defendants. Id.*fn20 Three days later, Hulser wrote to Kohl reiterating that his "concern about the immediate debriefs and reports [was] that they were just one part of a mandatory and compelled process to get information after the shooting incidents." Defs.' Hulser Ex. 9.
On April 18, 2008, Kohl and Hulser met to discuss their disagreement over the taint issue. Hr'g Tr., Oct. 29, 2009 a.m. at 78; see Defs.' Kohl Ex. 21. At the conclusion of this meeting, Kohl and Hulser agreed that for all future requests for information from the prosecution team, Kohl alone would determine what investigative materials should be provided directly to the trial team and what materials should be provided to Hulser for screening. See Defs.' Kohl Ex. 21.
Despite these efforts, "miscommunications" -- as the government charitably deems them -- persisted even after the April 18, 2008 meeting. For instance, Kohl testified that during the meeting, Hulser "said he wished [the trial team] could have delayed as long as possible before [it was] exposed to" the defendants' September 16 interview statements, but that he did not expressly prohibit the trial team from making use of those statements.*fn21 Hr' Tr., Oct. 29, 2009 a.m. at 79. Hulser, on the other hand, testified that during the April 18, 2008 meeting, he advised Kohl to make no use whatsoever of the defendants' September 16 interview statements already in his possession. Hr'g Tr., Oct. 23, 2009 a.m. at 42.
In July 2008, Kohl approached counsel for defendant Heard to discuss whether Heard would be willing to cooperate with the government's investigation. Hr'g Tr., Oct. 29, 2009 a.m. at 161-62. During that meeting, Kohl referenced statements made by Heard during his September 16 interview -- specifically, his failure to disclose firing an M203 grenade during his initial interview followed by his admission to DSS investigators later that evening that he had, in fact, fired a grenade. Id. at 162-63. Kohl testified that he raised this fact during the plea discussions because he viewed it as evidence reflecting Heard's consciousness of guilt. Id. at 163.
Furthermore, in August 2008, Kohl requested and obtained information regarding the defendants' September 16 interview statements to DSS investigators -- namely, the two "Memorandum Reports of Interviews" prepared by the interviewing DSS agents. Hr'g Tr., Oct. 29, 2009 a.m. at 165-66; Govt's June 30, 2009 Letter at 4. Kohl read these documents in the course of considering whether a false statements charge should be brought against the defendants. Govt's June 30, 2009 Letter at 4. Hulser testified that he had no recollection of being advised of this request.*fn22 Hr'g Tr., Oct. 23, 2009 p.m. at 43.
9. The First and Second Grand Juries
The Fifth Amendment guarantees that no civilian may be brought to trial . . . 'unless on a presentment or indictment of a Grand Jury.' This constitutional guarantee presupposes an investigative body acting independently of either prosecuting attorney or judge, whose mission is to clear the innocent, no less than to bring to trial those who may be guilty.*fn23
A grand jury was convened in late November 2007, at which Frost, Murphy and Mealy testified, along with other members of the Raven 23 convoy. Govt's Mem. at 10. Kohl and Ponticello were aware before these witnesses testified that media outlets had disseminated the defendants' September 18 written statements in news reports and articles, and that many of the witnesses they intended to call, including Frost, Murphy and Mealy, had been exposed to the defendants' written statements. Govt's June 30, 2009 Letter at 5. Recognizing these concerns, the government advised the witnesses before they took the stand to testify based on what they had personally seen and heard, and not to disclose to the grand jury any information obtained from the sworn written statements of other Raven 23 team members. Id.
Prior to asking the grand jury to return the indictment, the trial team reviewed the grand jury record to determine whether any Garrity evidence had been presented. Id. The government concluded that despite the admonishments given to the witnesses, the grand jury may have been exposed to such evidence, specifically through the testimony of Frost, Murphy, Mealy and other members of the Raven 23 convoy. Id.; Hr'g Tr., Nov. 2, 2009 a.m. at 21-22. Consequently, the government elected to withdraw the case from this grand jury and to re-present the case to a second grand jury. Govt's June 30, 2009 Letter at 5.
In preparation for the second grand jury, prosecutors Kohl and Malis met with Hulser and Karla Dobinski, a recognized DOJ Garrity expert, regarding the taint issue. Hr'g Tr., Nov. 2, 2009 a.m. at 8, 29. The prosecutors decided that, among the Blackwater witnesses, they would rely solely on the testimony of Frost, Murphy and Mealy, purportedly because the prosecutors were the most confident that these three witnesses could survive a Kastigar hearing. Id. at 24. Rather than have these witnesses take the stand again, however, the prosecutors chose to provide the second grand jury with transcripts of their testimony at the first grand jury, redacted to remove references to information derived from the defendants' compelled statements. Id. at 31-32. Prosecutor Malis was responsible for making these redactions, in consultation with Hulser and Dobinski. Id. In addition, the prosecutors decided to have Robyn Powell, an FBI agent without any knowledge of or exposure to the case, summarize evidence for the second grand jury. Id. at 29-30.
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- 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' ...