Posted by: captainfalcon | January 1, 2010

Liberty, et. al. off on a technicality

The Blackwater operatives involved in the Nisur Square shootings just got off on a technicality.* Pity. But get a load of the dramatis personae. Each of the defendants – Paul Slaugh, Evan Liberty, Dustin Herd, Donald Ball and Nicholas Slatten – is named after someone who tried to kill John Wayne. And the offending investigator – Special Agent John Patarini – was conceived when The Pelican Brief mated with Die Hard.

* Attempt at a summary below the fold. (H/t Paul Cassell)

Briefly, the Fourth Circuit  found that the prosecutor and many key witnesses had familiarized themselves with statements the defendants had made under threat of job loss. The Supreme Court held in Garrity v. New Jersey that any statements made under threat of job loss count (functionally) as testimony “made under a state grant of immunity.” The Supreme Court held in Kastigar v. United States that testimony made under a state grant of immunity is, for Fifth Amendment purposes, to be treated the same way as “compelled testimony” and so cannot be used in subsequent proceedings against the testifier: “federal authorities have the burden of showing that their evidence is not tainted by establishing that…the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.”

The Fourth Circuit explained what it is for tainted evidence to be “used” in (ironically) United States v. North (as in Oliver North). There, it distinguished between evidentiary and non-evidentiary use.

Evidentiary use includes direct evidentiary use (presenting tainted evidence to a jury) and derivative evidentiary use (inter alia, putting a witness on the stand “whose testimony is shaped, directly or indirectly, by compelled testimony, regardless of how or by whom he was exposed to that compelled testimony”).

In North the Fourth Circuit explained that non-evidentiary use includes use by a prosecutor or investigators to help shape their theories. However, it declined to address whether non-evidentiary use is prohibited under Garrity cum Kastigar. In the Blackwater case, the Fourth Circuit reads the tea-leaves in North and decides that “a Kastigar violation may result when a prosecutor has had significant exposure to immunized testimony and makes significant nonevidentiary use of that testimony.”

If the Fourth Circuit’s gloss on Garrity cum Kastigar is correct (and, from what I’ve read (not much), everyone thinks it is) then it is clear that the defendant’s rights (under that line of cases) were violated in the trial. There’s overwhelming evidence that prosecutors and investigators were familiar with with their compelled testimony, as were key prosecution witnesses. (The witnesses were familiar largely because the compelled testimony was leaked to the press and kept showing up in their Google News Alerts.)

Which is unfortunate, because the defendants seem to be guilty of murder (see pp. 11-12 of the Circuit opinion, especially).

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