The defense team says photographs of eight empty shell casings for an AK-47, used by both insurgents and Iraqi security forces, taken by a US Army captain were only supplied by federal prosecutors on Wednesday.
The evidence could turn out to be favorable for the defense, the attorneys said, as the security guards of the notorious security firm – now known as Academi – say they fired in the crowded square on Sept. 16, 2007 only after being fired upon by insurgents.
“The government has suppressed, for seven years, evidence in its possession that is plainly exculpatory on the central disputed issue” in the case, defense lawyers argued in a court filing, according to AP.
“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 liable for a recall to testify, as they have returned to Iraq.
The US is currently trying to prosecute four of the five guards involved in the incident after a first failed attempt to do so in 2009. The latest trial began over a month ago.
The defense now wants the ability to explain to jurors the context of the new evidence and why prosecutors did not offer it earlier. Lawyers for the guards say the shell casings contradict the prosecutors’ claim that no evidence of incoming fire was found at the scene.
The court filing says the crime scene photos were taken by Army Capt. Peter Decareau, one of the first Americans to visit Nisour Square after the shootings. which also injured 20. Decareau gave the FBI a CD of the photos on Oct. 12, 2007.
The defense attorneys claim prosecutors in 2008 and 2009 “withheld Decareau’s photographs of the AK-47 shells.” The government gave the defense over 3,700 photos of the Nisour Square crime scene on Feb. 13, 2009.
“Despite specifically identifying … a series of ‘U.S. Army photos of crime scene,’ this production did not include Decareau’s photographs of the AK-47 casings at the bus stop,” the defense court filing says. “The original trial team produced additional photographs on July 27, 2009, but again did not produce the photos of the AK-47 casings.”
The attorneys added that “it appears that the current trial team of prosecutors only recently learned of these photos, and that they turned them over promptly.”
The eight AK-47 shells have disappeared, as neither the State Department nor the FBI 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 defense lawyers say it’s possible that Iraqi authorities confiscated the shell casings.
“Notably, photographs taken Sept. 16, 2007, show many Iraqi officials at the bus stop,” the court filing suggests. “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 says the new evidence could have come to light earlier, including instances in 2008, 2009, 2012, 2013, and earlier this year, but it did not.