The overreach by the Obama-era Dept. of Justice in its vindictive prosecution of a Rochester man in the 2007 Nisour Square massacre in Iraq has now shown not only to be vengeful and prejudiced but also dishonest and "purposefully manipulated" as described in a 2013 letter to the prosecution team from a lawyer for one of five Blackwater guards accused in the incident.
The letter, obtained by The Rochester Voice, is from the attorney for a fifth man from Raven 23, now dubbed the Biden 4, who was indicted by a first grand jury but not by a second, because the DOJ decided to drop his case, presumably due, in part, to the scathing letter from his attorney, Steven McCool of the Washington law firm of Mallon & McCool to three prosecutors in the case.
In the 12-page letter to Asst. U.S. Attorneys Anthony Ascuncion, John K. Han and T. Patrick Martin, McCool points out numerous Brady violations, which refer to when evidence favorable to a defendant or that could negate their guilt is withheld.
Much of the material McCool uses in the letter references the work of another Asst. U.S. Attorney, Kenneth Kohl, who prepared a summary of what he claimed was the evidence against each defendant and gave it to the grand jurors considering the second indictment.
Some of the Brady violations relate specifically to Ball, where he was positioned in Raven 23 four-truck convoy and how prosecutors misled the grand jury by manipulating or underreporting Iraqi witnesses' testimony.
But the majority of prosecution-damning statements that portray an all-out attack on Raven 23 comes directly from Raven 23 members who attested in sworn statements that the convoy came under fire moments after entering Nisour Square, including fire from what were thought to be insurgents dressed as Iraqi policemen. The material facts never came up during the convening of the second grand jury.
"For some reason, Mr. (Jonathan) Malis, a prosecutor formerly assigned in the cases, decided not to present transcripts of a number of Blackwater witnesses who testified to the first grand jury that they took incoming fire on September 16, 2007," McCool wrote in the letter.
A few of the many exculpatory Raven 23 statements culled from his letter are listed below.
- Jeremy Skinner of Blackwater: He looked down the road and saw "two distinct separate muzzle flashes."
- Daniel Childers of Blackwater: He heard incoming gunfire and he identified the source of the gunfire for the first grand jury.
- Thomas Vargas of Blackwater: In a sworn statement, he stated that, approximately 5 seconds after pulling into the circle, the convoy started receiving AK-47 gun fire. See May 8, 2009 USAO Letter. Mr. Vargas said that he saw two insurgents, one dressed in an IP (Iraqi Police) uniform and the other dressed in an IA (Iraqi Army) uniform, standing next to each other on the center median south of the circle firing AK-47s at the convoy. (AK-47s were known to be used by Iraqi insurgents)
Mr. Vargas described seeing the white Kia weaving through traffic, seeing a water bottle thrown at that car, and the car continuing to approach the convoy at approximately 10 miles per hour.
- Edward Randall of Blackwater: He told government agents that, after the shooting had started, he said he saw rounds hitting the left side of the command vehicle. In a sworn statement, he stated that, as the convoy departed the circle, he heard small arms gun fire from the vicinity of the circle.
- Mr. Randall said that he heard Thomas Vargas "calling out contact spots, positions that ... he's seeing people that are firing at us, I believe."
- Adam Frost of Blackwater: He told government agents that he heard a team member say: "There is an IP in the bushes shooting at us!" Id He also stated, in sworn statements, that after the gun fire had already begun, he heard Thomas Vargas say over the radio, "there's an IP in the bushes shooting at us. He's over there. He's over there."
- Dustin Hill of Blackwater: He told government agents that he heard a team member from another vehicle say on the radio that the convoy was taking gun fire from sandbags and a wooden shack just off of the southbound lane near the PUK.
The many sworn statements that presented exculpatory material that would benefit the defense that were not offered in the report prepared for the second grand jury showed a malfeasant prosecution, according to McCool's letter.
In a partial summary, McCool wrote, Prosecutors "must recognize that the grand jury is an independent body, whose functions include not only the investigation of crime and the initiation of criminal prosecution but also the protection of the citizenry from unfounded criminal charges. In discharging these responsibilities, the prosecutor must be scrupulously fair to all witnesses and must do nothing to inflame or otherwise improperly influence the grand jurors.
"The prosecutors formerly assigned to this case did not follow these DOJ directives ... Hopefully, if you decide to present evidence to a grand jury in an effort to charge Mr. Ball, you will not repeat this conduct."
Six months after the letter was sent, prosecutors on Sept. 30, 2013, asked a Washington judge to dismiss charges against Ball.
When asked for comment on why they had a change of heart and decided to urge a dismissal, Asuncion and Martin refused to comment on their reasoning.
A spokesman, however, said, "The government has exercised its prosecutorial discretion in dismissing the charges against Mr. Ball based on its assessment of the admissible evidence against him."
McCool declined to comment on the letter on Monday, but said he supported the family of Evan Liberty and the other three families that have been so devastated by the case.
The events leading to what became known as the Nisour Square massacre began the afternoon of Sept. 16, 2007, when a powerful bomb went off outside the Green Zone in Baghdad and a Blackwater team escorting a diplomat had to get them to safety as fast as it could. Evan Liberty's tactical support team - named Raven 23 - raced to secure a traffic circle so the first Blackwater team could safely reach the Green Zone."
As what appeared to be civilian traffic mostly either slowed or turned back, a white Kia driving on the wrong side of the road approached the roadblock where Blackwater Team Raven 23 was securing the circle.
Earlier in the day a morning briefing had warned Blackwater teams about a white Kia suspected of being loaded with explosives driving around looking for targets, so when the car continued to drive erratically toward the Raven 23 positions, the vehicle's occupants were warned verbally then with warning shots before someone from the team killed the driver with a single bullet.
Evan Liberty and the three others charged in the attack then say what appeared to be Iraqi police began firing at Raven 23, initiating a furious exchange that federal prosecutors said left at least 14 Iraqi civilians dead and many more wounded.
Prosecutors contended that the four Blackwater guards opened fire without provocation, killing more than a dozen innocent Iraqi civilians, their actions fueled in party by anti-Iraqi sentiment.
Liberty, who grew up in Rochester and graduated from Spaulding High, went on to become a decorated Marine and Embassy Guard before joining Blackwater, a private firm that provided security for diplomats during the height of the Iraq War in 2007.
On April 13, 2015, Nicholas Slatten of Tennessee was sentenced to life for murder, while Dustin Heard of Tennessee, Paul Slough of Texas and Liberty were found guilty on gun violations and sentenced to 30-year mandatory sentences. Slatten was granted a retrial which was tossed before a third trial in which he was convicted again.
An appeals court tossed the gun convictions as "cruel and unusual," and Liberty's, Heard's and Slough's sentences were reduced at a resentencing last September.
Evan Liberty, who turned 38 on Aug. 3, was sentenced to 15 years, which would put his release date sometime in 2030. He has spent nearly six years in a federal prison in Pennsylvania.
In May the Congressional Justice for Warriors Caucus sent President Trump a letter urging him to pardon the men of Raven 23/Biden 4.
Presumed presidential nominee Vice President Joe Biden got his name on the tag as he went to Baghdad in 2010 just weeks after a federal judge had tossed the case and guaranteed the Obama Justice Department would be recharging the four.
"Just because the charges were dismissed doesn't mean they can't be charged again," he said at the time.
President Trump is said to be aware of the pardon request.