White-Collar Crime

To Retry, Or Not To Retry: Some Thoughts On The Blackwater Case

Just how long can we drag this out?

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When should the government stop chasing someone it thinks is a murderer?

That’s the interesting question raised by the latest Blackwater prosecution, which has now been dragging on for more than a decade and spanned three presidential administrations. Yesterday, after more than two months of trial and more than two weeks days of deliberations, the presiding judge declared a mistrial when the jurors hung on the reprosecution of Nicholas Slatten, who had been convicted of first-degree murder and sentenced to life until the D.C. Circuit reversed his conviction last year. (Mr. Slatten was represented at trial by Williams & Connolly and my former firm, Harris, Wiltshire & Grannis.)

Now, the government is going to have to ask itself some hard questions. Is the third time the charm? Or at some point, does justice pursued for too long become injustice — or simply pointless?

Let me start with a little background for those who may not have followed this case closely. In 2007, during the Iraq war, Blackwater contractors killed or injured 31 people in Baghdad’s Nisour Square. The contractors, who had been assigned to protect a State Department convoy, claimed that they acted in self-defense after being shot at, while the government claimed that the shooting was cold-blooded murder, committed by people who just wanted to kill Iraqis — and that a single shot by Mr. Slatten started it all.

The case was a mess from the start, hardly surprising given its origin in an active war zone. In 2009, the first judge assigned to the case threw it out due to Kastigar violations. The D.C. Circuit reversed that ruling in 2011, which meant that the government had to reindict everyone.

And that is when it started to get really weird. The government had charged everyone with manslaughter the first time, presumably reasoning — smartly — that it can be hard to prove premeditation in the chaos of a war zone. When they rebrought the charges, that’s what they did the second time, too.

Except they forgot about Mr. Slatten.

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That’s right — the government actually forgot to re-indict one of the defendants. And by the time they realized what they’d done, the statute of limitations for manslaughter had run. (This is the kind of mistake that would get you fired in private practice but just gets you a little chewed out in the government. It’s not technically life tenure, but it sure can be close.)

So that left them with an unusual choice: cut loose someone they genuinely believed had killed innocent people, or find a creative way to charge him with something they hadn’t charged him with the first time.

Unsurprisingly for anyone who knows the government, they chose option two — charging him with premeditated first-degree murder, a charge they had clearly thought inappropriate the first time.

Mr. Slatten’s attorneys at my former firm tried ably, but failed to enjoin the government from doing that. So the case against him and his three codefendants went to trial in 2014. All four were convicted. The three codefendants were sentenced to 30 years each, while Mr. Slatten — he of the newly discovered first-degree murder charge — was sentenced to life.

Last year, the D.C. Circuit reversed Mr. Slatten’s conviction on the grounds that he had been improperly tried with one of his codefendants, who had told the government he, not Mr. Slatten, fired the original shot that sparked the whole incident and was the basis for the first-degree murder charge. It also ordered his codefendants to be resentenced; those sentencings are still pending and will likely result in their all serving much less prison time.

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Which brings us to yesterday’s verdict. After having spent untold resources on massive investigations and two lengthy trials, which required numerous witnesses to be flown over from Iraq, the government has secured three significant convictions but has failed to catch the person that, in their re-charging, they deemed the most culpable of all.

What do you do if you’re the government here?

Do you try to bluff Mr. Slatten’s attorneys, offering him a plea to significantly reduced charges in exchange for the security of not having to go to trial again? I’m sure that will be discussed, but it seems unlikely. How many prosecutors successfully bluff Williams & Connolly?

Do you take a third shot at trial, reasoning that because you have alleged that this person is a stone-cold killer, that is what justice requires?

Or do you say that you’ve done enough — you’ve convicted three people who will do a great deal of time in prison (even if not as much as you’d hoped) — and it’s now time to move on to other cases? Do you admit, as experienced prosecutors so often have to do, that there is no such thing as perfect justice?

It will surprise absolutely no one that I think the correct answer is C — you cut your losses and move on. The government’s vertical resources are near-infinite — once they zero in on you, they can go deep. They can collect as much evidence as they want, they can call as many witnesses as they want, and they can drag out an investigation as long as they want.

But their horizontal resources are much more limited. They can’t investigate, and certainly can’t try, every case. If they try Mr. Slatten a third time, they will necessarily have to forgo other cases — cases that, unlike this one, haven’t resulted in any convictions yet.

More than ten years and two trials in, that seems like a bad trade for the government. I think that, once the initial shock of the loss wears off, that’s what they will decide as well. It’s also what they should decide. A single retrial in a case like this is one thing; a second one, after the highly questionable charging decision that was made in the wake of a massive government screw-up, would start to look an awful lot like face-saving. And that isn’t good for anyone — including the government.

The government told the judge that it will announce its decision on September 14th.

Justin Dillon is a partner at KaiserDillon PLLC in Washington, DC, where he focuses on white-collar criminal defense and campus disciplinary matters. Before joining the firm, he worked as an Assistant United States Attorney in Washington, DC, and at the Civil Rights Division of the Justice Department. His email is jdillon@kaiserdillon.com.

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