In a surprising unanimous opinion last week the U.S. Court of Appeals for the D.C. Circuit reinstated the manslaughter charges of four former Blackwater security guards accused of killing 17 unarmed Iraqi civilians in Nissour Square back in 2007. The D.C. Circuit held that U.S. District Judge Ricardo Urbina improperly dismissed the indictments despite his findings of prosecutorial misconduct in relying on the compelled testimony of the accused security guards in violation of the Fifth Amendment. A copy of the redacted public decision is found here. http://www.cadc.uscourts.gov/internet/opinions.nsf/A311ECA37BE9E9AE8525787A004E0A0B/$file/10-3006-1304592.pdf
The Fifth Amendment privilege against self-incrimination prohibits the government from compelling any person to give testimony that could be used to incriminate himself in a criminal trial. In Kastigar v. United States, 406 U.S. 441 (1972) the Supreme Court made clear that where a defendant has been compelled to give statements waiving his Fifth Amendment privilege, the government must prove that any evidence it uses to prosecute that defendant is “derived from a legitimate source wholly independent of the compelled testimony.”
Judge Urbina previously found that (a) the prosecutors’ reliance on the security guards compelled statements improperly motivated the prosecutor’s to seek the indictments; and (b) that the government’s use of other witnesses who knew of those compelled statements, were tainted and thus failed to show the evidence came from an independent source. Accordingly, the District Court dismissed the indictments against all of the guards both because the prosecutors relied on those compelled statements in deciding whether to seek an indictment and because the prosecutors presented evidence to the Grand Jury that was tainted by those compelled statements.
The D.C. Circuit vacated the District Court opinion finding that (a) that the District Court had failed to determine, as to each defendant, what evidence—if any—the government could obtain by independent evidence separate and apart from the compelled statements; (b) the Fifth Amendment does not prohibit non-evidentiary uses of compelled testimony, such as a prosecutor’s decision to seek an indictment.
The D.C. Circuit’s decision was surprising in that it largely disregarded the District Court’s three week evidentiary hearing where it found that the testimony of the witnesses were exposed to the compelled testimony could not be relied on because their testimony was inextricably tainted by their exposure to the compelled statements. The D.C. Circuit directed the District Court to parse through each witnesses testimony (again) and decipher what parts of their testimony (if any) may not have been impermissibly tainted by their exposure to the compelled testimony. After directing the District Court to go back and determine, as to each defendant, what evidence—if any—was tainted as to him, the D. C. Circuit also directed the District Court to determine whether or not the government has shown that any tainted evidence was harmless beyond a reasonable doubt.
This decision is concerning in that even common experience demonstrates that a person who is exposed to tainted testimony but also has independent recollection of events may not fully know which exposure (tainted or personal) forms his current basis for testimony. By rejecting the District Court’s prior findings after lengthy testimony that the witnesses were impermissibly tainted, the D. C. Circuit’s decision subtlety encourages both prosecutors and District Courts to find ways to permit potentially tainted testimony, as long as it is possible that the witness can articulate that the evidence came from an independent source. Such an approach could lessen the government’s burden under Kastigar of proving that its evidence is derived from a “wholly independent” source and erode the Fifth Amendment Privilege.
Less surprising was the D. C Circuit's finding that the prosecutor’s use of compelled testimony for non-evidentiary uses—such as the prosecutor’s personal reliance in choosing to pursue an indictment—is not barred by the Fifth Amendment. While there is disagreement among Appellate courts as to whether or not the Fifth Amendment bars the government’s use of compelled testimony for these non-evidentiary uses the majority of courts have held that the Fifth Amendment does not protect against the internal prosecutorial decision-making process.
The case is now returned to the District Court for further proceedings. Only time will tell whether this relook at the evidence will result in admissible “independent” evidence allowing the prosecutions to go forward, or if the District Court will once again find that the government’s case is impermissibly tainted by its reliance on the compelled testimony of the defendant security guards.