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Why Americans should not be angry over the Blackwater charges being dismissed

by: DanielK

Fri Jan 01, 2010 at 12:01:00 AM EST

     On the last day of the year in 2009 the five defendants in the Blackwater case had the charges against them dismissed by a Judge Ricardo Urbina.  Since the news broke in the late afternoon I have seen a whirlwind of reactions from both sides of the debate calling it a proper decision to some, like Jeremy Scahill calling it an "injustice" or saying that Judge Urbina has given "Blackwater huge New Year's gift."  I have responded to these comments on Twitter and decided to write a diary about why people like Scahill and others are absolutely wrong in their criticism of this dismissal and letting their hatred (whether justified or not) blind their reasoning in accepting this decision.  
DanielK :: Why Americans should not be angry over the Blackwater charges being dismissed
    While I am not going to review all the facts of the case that occurred following the alleged massacre many of the facts are clear in Judge Urbina's 90-page opinion.  Following the incident, inquiries and investigations were conducted to figure out what exactly happened considering there was a high loss of civilians during the incident.  The news media, to include Scahill have been following Blackwater extensively about the incident and the company in general.  Eventually, the outrage from the public in both Iraq and even the United States pushed by many followers of Scahill and others on the left in my opinion fueled the eventual criminal charges that were brought against the contractors.  From the first day of the criminal proceedings it was clear there was going to be great difficulty prosecuting the case to include issues of jurisdiction and credible eyewitness accounts and lastly, obtaining evidence that could even be used during the prosecution.  In a criminal proceeding, a prosecutor has the great responsibility to be a minister of justice as their position affords them incredible power as an arm of the Government.  Sadly, the U.S. Attorneys and the investigators in this case failed in their responsibility.
   The United States of America is a nation of laws and they are followed as best they can be.  We have a court system that is the final decider on whether or not a criminal defendant is guilty of an alleged crime.  In order for a defendant to be found guilty that defendant must be tried on proper evidence in accordance with the law.  Evidence that is gained outside the protections of the Constitution cannot but used against a defendant to include statements give through limited immunity, or in this case Garrity right as noted in the landmark decision of Garrity v. New Jersey.  These case is used throughout the United States in law enforcement essentially saying that anything said during administrative investigation cannot be used against someone in a court of law.  In Garrity, investigators were forcing officers involved to give up their Fifth Amendment rights against self incrimination under threat of job termination.  The contractors gave their statements under the rule of Garrity and never believed those statements were to be used against them in a criminal proceeding.  Here is the "Garrity" or "Kalkines" warning:

I, ___________, hereby make the following statement at the request of
___________, who has been identified to me as a Special Agent of the U.S.
Department of State, Diplomatic Security Service. I understand that this
statement is made in furtherance of an official administrative inquiry regarding
potential misconduct or improper performance of official duties and that
disciplinary action, including dismissal from the Department's Worldwide
Personnel Protective Services contract, may be undertaken if I refuse to provide
this statement or fail to do so fully and truthfully. I further understand that
neither my statements nor any information or evidence gained by reason of my
statements can be used against me in a criminal proceeding, except that if I
knowingly and willfully provide false statements or information, I may be
criminally prosecuted for that action under 18 United States Code, Section 1001.

That there is clear as day for anyone reading it that any statement made cannot be used against a defendant. You cannot tell someone that they must make a statement without giving them some protection of the law. This was a significant portion of the judge's opinion in dismissing the case and it is hard for anyone to argue he was wrong in how he decided.  The violations by investigators who improperly used those statements began a chain of reactions that eventually tainted the entire case and eventually lead to the dismissal of the charges.  In other words, the "poison" from the taint spread to nearly every facet of the case and any remedy the judge could have used outside of dismissal was impractical and incapable to provide the defendants with a fair trial. Finally, while the judge was referring to Kastigar violations in making this statement it really can be applied to the case in whole.  The violations and the significance of them were anything but harmless, and for any possible remedy to be applied there must be some evidence that they were harmless which in this case they were not.

Finally, as a law enforcement officer I have brought cases where I know a defendant is guilty but they are eventually acquitted in a court of law.  I have to accept that and I thin that is the reason why I have a little more rational understanding of this decision.  Whether or not the Bush administration "tainted" the investigation or interfered it really doesn't matter.  The evidence obtained was in violation of our United States Constitution, plain and simple.  It is something our men and women in uniform are sworn to uphold and protect.  The contractors were assumed by many to be guilty even before the case was brought to trial to include a statement Scahill made to me on Twitter saying

@DanKalbacher they would never ever have been acquitted in a fair trial

How does one know that for certain?  While some people are surprised a deputy sheriff would say this I have come to firmly believe in a defendant's innocence until proven guilty through my courses in criminal and constitutional law.  All rules of law must be followed to include ones that appear to be "technicalities."  One of the most telling experiences I had with that was when Robert Horan in Fairfax charged John Allen Muhammed with capital murder for the shooting in Fairfax County during the shooting spree.  That charge was eventually dismissed because his right to a speedy trial was violated using Funk v. Commonwealth.  Using that same rational, one cannot call that an "injustice" but an example of the system working in protecting a defendant through the protections of the Constitution.  

As a society and a county, we cannot be angered when defendants are released or the charges against them dropped when the Constitution of our country, the bedrock is not followed. No matter how heinous a crime, the Constitution must be followed and adhered to by all of those within the criminal justice system and respect the fact that judges take the correct stance in applying those protections to all defendants no matter how guilty they initially appear.

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