WASHINGTON — Lawyers for Blackwater security guards said Monday that the government has suppressed evidence favorable to defendants who are on trial in the killings of 14 Iraqis in Nisoor Square in Baghdad.
U.S. Attorney Ronald Machen says that "a series of innocent oversights" led to the problem.
The defense team for the four former Blackwater guards says the suppressed evidence consists of photographs of eight spent shell casings that would fit an AK-47 — the weapon of choice used by insurgents as well as Iraqi authorities.
A court filing by the defense attorneys says a U.S. Army captain took the photographs at a bus stop several hundred feet from Nisoor Square and that they never saw the light of day until federal prosecutors turned them over last Wednesday.
The photos could become an important part of the case. They could bolster the accounts of the security guards, who say they were being fired upon by insurgents and that the guards were simply returning fire.
"The government has suppressed, for seven years, evidence in its possession that is plainly exculpatory on the central disputed issue" in the case, the defense lawyers said in a court filing. "Had they possessed these photos, defendants would have made them a central focus during opening statements as evidence of incoming fire. Defendants also would have used this evidence to cross-examine at least four witnesses who have already testified" and who are not subject to being recalled because they have returned to Iraq.
The defense attorneys are asking that they be allowed to explain to the jurors in the case why they are just hearing now about the new evidence. The defense lawyers also want the judge to tell the jurors that the government failed to disclose the evidence before the trial, which began over a month ago.
According to the court filing, then-Army Capt. Peter Decareau was one of the first Americans to arrive at the Nisoor Square crime scene, where he took photos, including two of a group of eight AK-47 shells on the ground behind the bus stop. On Oct. 12, 2007, Decareau turned over to the FBI a CD of the crime scene photos.
Based on Decareau's testimony, federal prosecutors all understood that Decareau did not observe any AK-47 shell casings on the scene, Machen wrote defense lawyers. In addition, prosecutors "incorrectly assumed" that a montage of Decareau's photos contained all the photos from the disc he had provided to the FBI, Machen wrote.
The eight AK-47 shells themselves have disappeared. Neither the State Department nor FBI agents recovered them.
"The physical evidence possessed by the FBI does not include the AK-47 shells photographed at the bus stop by Decareau," the court filing states. "Decareau's photographs are the only evidence of those AK-47 shells at the bus stop immediately after the incident."
The court filing raised the possibility that Iraqi authorities had taken the shell casings.
"Notably, photographs taken Sept. 16, 2007, show many Iraqi officials at the bus stop," said the court papers. "Decareau advised the FBI during his October 2007 interview that he observed" that Iraqi Army General Baja took several items from the scene."
The defense team said it would have used the photographs to rebut the government's claim that no evidence of incoming fire was found and to point out to the jury how easy it was for evidence of hostile fire to disappear.
In a 2008 grand jury appearance, Decareau was questioned about a number of the photos he had taken, but the exhibits did not include the two photos of the AK-47 casings at the bus stop, according to the court filing.