Oh, Those Wacky Keystone Prosecutors

Leave it to Washington to end the year with a farce, as U.S. District Judge Ricardo Urbina in Washington ordered the dismissal of an indictment against five Blackwater Worldwide security guards accused in a politically charged 2007 shooting incident in Iraq. [ Report ]

Most of the press reported the story as one of prosecutorial bumbling. The creme de la creme of the Justice Department had stumbled and fumbled into compromising the Government's case by using the defendant's statements in violation of the Fifth Amendment. Sanction time!

But Judge Urbino's findings, upon hearing, were a little less comic. He found the prosecutors' explanations of their conduct to be "inconsistent," "extraordianary" and "implausible" Significantly, he did not say "off the wall."

"The only conclusion the court can draw from th[e] evidence is that ... the trial team purposefully flouted the advice of the taint team when obtaining the substance of the defendants’ compelled statements, and in so doing, knowingly endangered the viability of the prosecution.”

In other words, the District Court found that the Department of Justice had thrown the case

Throw a case against Blackwater? How could this be? The answer reveals the nature of the dark comedy that passes for American Justice at the turn of the millenium.

As anyone who has ever watched a COPS show knows, the Constitution prohibits self-incrimination and neither police nor prosecutors can use statements made under duress or compulsion. No Miranda? Case out! Next!

Whoa! Not so fast. Almost immediately after Miranda was decided, the Court began back-pedalling, as the Burger and Rhenquist majorities conjured up every possible exception, limitation and defeasing circumstance they could think of. One such "exception" was the so-called inevitable discovery doctrine, the essence of which is stunningly simple: Hey, if the incriminating evidence would have been discovered disiregardless of the defendant's statements, who cares?

Who indeed? Not the Court.

Lawyers now had a new sand box to play in, as the courts fashioned rules, standards, and thresholds for determining independent inevitability.

While the Courts were coming up with creative ways to protect themselves from tainted confessions, Congress was busy passing laws requiring government agents and contractors to give full and honest accounts to their debriefers following any screw-up, malfeasance, scandal or crime. After all, it was important for the Government to get to the root of the evil, whatever it might be, in order to fix it. And this required full and candid and fearless disclosure by those most intimately and, dare we say, criminally involved.

But suppose whatever it was that was being investigated did involve criminal conduct. It was fairly obvious that statements made to investigators under threat of loosing one's job could not be considered "voluntary". (Garrity v. New Jersey Jersey (1967) 385 U.S. 493.) So then, did confession bar prosecution? For a moment the Government looked confused.

The Court was quick to help out. In Kastigar v. United States States, (1971) 406 U.S. 441 it turned to the inevitable discovery rule and held that, in cases involving administrative debriefings, a criminal prosecution could proceed if the Government proved that it made no use whatsoever of the compelled statements or that any such use was harmless less beyond any reasonable doubt. Enter "taint teams".

Obviously an investigator or lawyer who was aware that Jack had confessed to killing his girlfriend at 2.00 a.m. on a lonely back road in the wilderness of Montana after the two met up at the world's biggest most crowded mall in Winnepeg would have a hard time investigating the case from scratch without ever taking a "lead" from the confessed facts he was aware of. And so, in inimitable bureaucratic fashion, the Justice Department set up teams of lawyers whose job it was to keep other teams of lawyers in the dark, so that they could discover the truth by their own unaided lights and meet their burden under Kastigar.

One would have to be a veritable Pangloss not to realize that Government had managed to set up a double layer of protection for malfeasance in public service.

There may indeed be situations in which government has a bona fide interest in discovering the whys and wherefors of some systemic failure. Investigating "unauthorize killing" in occupation zones is not one of them. It is the height of bully boy cynicism to put on choir boy stoles and claim that a full and broad and detailed confession by Blackwater guards was needed in order to "understand" the "effectiveness" of our own rules of engagement.

The whole exercise simply allowed the guards to craft a confession-cum-defense that would heighten the difficulty of "inevitable discovery" of any key fact needed for conviction. And anyone who does not believe that Blackwater guards received "debriefing-instruction " as part of their training is a fool.

But Blackwater is the Government's darling. To make ultra-sure that no prosecution would ever see the light of day, the government's "taint team" spilled ink all over the damn place and in case that wasn't enough the "prosecution team" ignored whatever pro-forma or face saving "warnings" and "advices" the taint attorneys did deliver.

The Justice Department would have us believe, that their top attorneys on a high profile case were just a bunch of Keystone Prosecutors missing one another and bumbing into eachothers behinds. The whole thing falls into the category of Lucius' "boating accident" in I Claudius.

Is there anything in Washington that does not raise a stench to Heaven?

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