By Aaron Nisenson, General Counsel IUPA

 

The recent dismissal of the charges against the Blackwater guards involved in the shooting in Iraq should send a warning to police departments and prosecutors throughout the U.S. that Garrity protected statements should not be released to prosecutors or the press.  While the shootings occurred far overseas, the investigation entailed many of the elements in a standard shooting investigation and prosecution.  In particular, the defendants were required to give statements to investigators or face termination.  While these “Garrity statements” are generally considered protected by the Fifth Amendment, the investigators and prosecutors in this case made a fatal mistake: Garrity statements of the defendants were released to the prosecution and the media. 

 

As a result, the Court held a three week hearing to determine if the Garrity statements were used in the prosecution of the defendants.  In a 90 page opinion, the Court found that the “Garrity statements” had been used against the defendants, and applying standard Garrity principles, excluded the majority of the evidence against the defendants and dismissed the entire indictment. U.S. v. Slough, 2009 WL 5173785 (D.D.C. Dec 31, 2009) (NO. CRIM A 08-0360 RMU) (The Court’s decision, and other Garrity material, is available from the I.U.P.A. General Counsel’s Office.)  

 

This decision, along with several others in which the I.U.P.A. has been involved, highlights the importance of the Garrity protections, and demonstrates that even in the most high profile of cases, courts are willing to dismiss prosecutions where these protections are breached.  The decision should also stand as a cautionary tale to any department that releases Garrity statements, and to any prosecutor who accesses or uses Garrity statements.  

 

The prosecution arose from an infamous shooting in Iraq.  The defendants were guards working as private contractors for Blackwater, providing security for diplomats under a State Department contract.  The afternoon of September 16, 2007, the defendants’ convoy took 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.  Soon after the defendants vehicles entered the traffic circle, a shooting incident erupted, during which the defendants allegedly shot and killed fourteen persons and wounded twenty others.  The government contended that the dead and wounded were unarmed civilians who were the victims of unprovoked violence by the defendants. The defendants maintained that they came under attack by insurgents and that their actions constituted a legitimate response to a mortal threat.

 

In the hours and days after the shooting, the defendants provided detailed statements to State Department investigators (comparable to Internal Affairs investigators.)  On September 16, 2007, the defendants were called in and orally questioned. They were later required to give written statements, and were provided with a “Garrity warning” which explained that the statements were being compelled and could not be used against them in any criminal proceeding.

 

These statements ultimately made their way to the prosecutors investigating the case, and the statements were disclosed to the media and broadly published in the U.S. and Iraq.  Key witnesses read the statements, getting them either from the prosecutors or from media reports or the internet. In addition, the prosecution reviewed reports of the administrative investigators, interviewed the administrative investigators, and used the administrative investigators to assist them in their prosecution. 

 

Because of the improper use of the Garrity statements, the defendants requested that the Court dismiss all of the charges against them. The Court held a hearing solely to determine whether the government had made any use of the Garrity statements.  The hearings spanned three weeks, and the judge heard testimony from twenty-five witnesses (including the government prosecutors, the agent in charge of the investigation, and the defendants), and reviewed hundreds of exhibits and voluminous pre and post hearing memorandum. 

 

The Government first argued that the initial oral statements were not protected because no Garrity warning was provided to the defendants. The Court noted that a Garrity warning is not required for protection; all that is necessary is that it was reasonable for the guards to fear that they would be terminated if they did not give the statement.  The Court found that the guards properly feared termination:

 

[T]he defendants in this case were directed to submit to questioning. . . . [T]he defendants had provided sworn statements on prior occasions under express Garrity warnings. And . . . , the defendants were not advised that the ground rules had changed – more specifically, that the rules that had governed the defendants’ other post-incident statements to the State Department did not apply on September 16, 2007. Furthermore, three of the defendants in this case testified that they were expressly told during their September 16, 2007 interviews that their statements could not be used against them in a criminal proceeding. Moreover, the defendants elicited corroborating testimony from friendly and hostile witnesses alike, all of whom testified that they too believed that they were required to submit to questioning on September 16, 2007 under threat of job loss. The court is persuaded that this evidence establishes the objective reasonableness of the defendants’ belief that they were required to submit to questioning or face job loss.

 

The Government also argued that the oral statements were “routine reports” that were not protected by Garrity.  While certain standard reports, such as arrest reports, may be considered routine, the Court found these statements were anything but routine.  In a finding that should support police officers, the Court ruled that the statements were not routine as the statements arose from a violent shooting, oral statements were not normally taken from witnesses in such cases, and they were not taken as part of a standardized reporting system. Moreover, the Court noted that any statement taken after an administrative investigation was initiated could not be considered routine. 

 

Finally, the Government argued that the statements were not protected because they contained either false information, or information that assisted the officers.  The Court stated

 

The government’s assertion that the falsity of the defendants’ statements renders inapplicable the Fifth Amendment privilege against self-incrimination requires little discussion. The Supreme Court has held that the question of coercion under the self-incrimination clause “is to be answered with complete disregard of whether or not [the accused] in fact spoke the truth.” Rogers v. Richmond, 365 U.S. 534, 544 (1961).

 

(Of course, the guards could be prosecuted for providing a false statement.)  The Court also found that even if the statements were exculpatory, they were protected because “answers could have resulted in injurious disclosures.”  Therefore, the Court found that all the statements were protected.

 

The Government also argued that the statements had not been impermissibly used.  The Court found that there was significant evidentiary use of the statements that fatally tainted much of the evidence.  Most importantly, key witnesses were exposed to the statements, and this exposure clouded their testimony.  The Court found that the witness testimony was tainted, even though some of this exposure came only through the media.  For example, the Court struck the proposed testimony of 22 Iraqi witnesses, because the witnesses had read accounts of the Garrity statements in the Iraqi news media, and the government had not established “that the witness testimony was not influenced in any way by their exposure to defendants compelled statements.”  

 

The Government argued that the witnesses could still testify to what they had personally witnessed, and that the witnesses could segregate their recollections from what they read in the Garrity statements.  The Court rejected this argument, stating that “Although the government emphasizes that Frost and Murphy personally witnessed many of the events about which they testified, this fact would be insufficient to satisfy the government’s burden, as Kastigar bars the use of immunized statements to shape in any way the evidence presented to the grand jury.” (Emphasis by the Court.)

 

Next the Court found that there was substantial “nonevidentiary use” of the Garrity statements.  In particular, the statements played “a central role in the decision to add [a defendant] as a target of the prosecution,” “guided the government’s investigation and prosecution,” and “tainted the physical evidence recovered from Nisur Square by DSS Investigators.” 

 

The Court emphasized that the prosecution’s actions in seeking out the statements were a key factor in the Court’s decision:

 

It is clear from this evidence that beginning in the first months of the investigation and throughout its duration, the trial team aggressively sought out and obtained the substance not only of the defendants’ September 16 interview statements, but also of the defendants’ subsequent statements to the DSS investigators, which the government has never disputed were compelled and tainted. The trial team members immersed themselves in the defendants’ compelled statements long before obtaining the indictment in December 2008.

. . .

It simply defies common sense that the prosecution would go to such incredible lengths to obtain the defendants’ compelled statements, flouting the advice of the taint team and taking actions that even Kohl acknowledged came “close to the line,” and then make no use whatsoever of the fruits of their efforts.

 

The Court concluded by not only excluding the tainted evidence but dismissing all of the indictments. Thus, one of the most significant prosecutions arising from the Iraq war ended, without even a consideration of the guilt or innocence of the defendants, based solely on the use and disclosure of the protected Garrity statements. 

 

The Court went to great lengths to point out that the dismissal of this high profile case was due to the recklessness of the prosecutors and investigators, in first gaining access to the Garrity statements and then using them against the defendants.  Unfortunately, the I.U.P.A. has encountered a number of police departments and prosecutors throughout the Country that engage in this same reckless conduct: routinely disclosing the Garrity statements of officers to prosecutors, witnesses, and criminal investigators.

 

*NPH NOTE:  In addition to Garrity protection as described here, Massachusetts public employees have a greater level of protection under the Massachusetts Declaration of Rights - entitling them to full transactional immunity before they can be compelled to give a statement that may have criminal consequences (this right is not automatic - it must be asserted by the employee prior to answering, and certain procedural safeguards should be secured ahead of time - always contact Counsel for a thorough review and opinion on any particular matter).