If you are a fan of Law & Order and its spinoffs then you are familiar with the prosecutorial dancing that is often done to make the case. This includes the occasional effort to twist the evidence and testimony into a pretzel the court will swallow, and the jury will reward with a guilty verdict. You probably thought it was so much Hollywood hoopla and exaggeration when those scenes were shown. Think again.
Our very own US Government has just shown us how not to make a pretzel the court will swallow. This is sausage making at its finest so don't read it unless you have a strong stomach for prosecutorial missteps (to be charitable). The final outcome was the dismissal of charges against Blackwater employees for an alleged massacre in Iraq in 2007.
It is pretty clear to me that the judge certainly thought this was more than missteps:
The government attempts to characterize Kohl’s failure to heed Hulser’s directives as a mere “miscommunication.” Yet to accept this characterization, the court would have to accept the following: that Kohl, a seasoned and accomplished prosecutor, failed to read multiple e-mails from senior prosecutors regarding a high profile case, including one e-mail to which Kohl responded “Got it,” see Defs.’ Kohl Ex. 10; Govt’s Ex. 57; that Mullaney, a Section Chief in the DOJ National Security Division, failed to forward to Kohl numerous e-mails from Hulser containing critical information regarding the investigation, despite Mullaney’s testimony that it was his practice to forward any such e-mails, Hr’g Tr., Oct. 26, 2009 p.m. at 8-9; and that after his April 2008 meeting with Hulser, Kohl understood that he could use the defendants’ September 16 statements so long as the trial team’s exposure to these statements was “delay[ed] as long as possible,” Hr’g Tr., Oct. 29, 2009 a.m. at 79, an understanding diametrically at odds with Hulser’s sworn recollection of the meeting, Hr’g Tr., Oct. 23, 2009 a.m. at 42, and contrary to all of Hulser’s prior advice on the issue, see, e.g., Defs.’ Kohl Ex. 10. These inconsistent, extraordinary explanations smack of post hoc rationalization and are simply implausible. The 83 only conclusion the court can draw from this evidence is that Kohl and the rest of the trial team purposefully flouted the advice of the taint team when obtaining the substance of the defendants’ compelled statements, and in so doing, knowingly endangered the viability of the prosecution.
As a former Federal bureaucrat I have more than a passing familiarity with the term "miscommunications." It is a code word used in CYA (Cover Your A$$) manuevers. It means that you don't have a leg to stand on so you come up with something, no matter how implausible, to avoid being held responsible and accountable. It's all just an honest mistake, so let's move on and do our jobs. Fortunately, the judge called them out and they are done.
An Appeals court may take a different view, but I have read commentary suggesting that since the judge's opinion is based on factual evidence, not a lot of interpretation, an appeal would be difficult to win.
What makes this so painful is that we won't know for sure if the Blackwater employees broke the law. The government's misbehavior has made the evidence impermissible and there will not be a trial. A total screwup, and done by people who have the training and experience to know better. One has to wonder if this is the only time they have played fast and loose with procedures. We are not talking about greenhorn numbnuts and heads need to roll on this.
On the other hand, what is the likelihood that this was a deliberate effort to keep the case from moving forward to trial? Forgive the tinhattery, but in my opinion the likelihood that the Iraqis will see it that way is pretty high. What else can they conclude? That we employ incompetent attorneys? If we do, it's another reason to dump the fools who thought they could ignore the law and legal rulings, as well as those in the heirarchy who gave them free rein.
Justice is not obtained by ignoring the law, rules, regulations and procedure, which ultimately corrupts the system we rely on. Our country is based on the rule of law, not the rule of whatever works. It may be inconvenient when the case is one we are emotionally attached to or outraged by, but it is the only way to ensure (to the extent we are able) that innocent people are not railroaded into prison for crimes they did not commit. Especially when that innocent is YOU!
Law and Order is known to air stories that are influenced by real life events. I wonder if they will take advantage of the opportunity here.