The attorneys say 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 the photographs were made by a U.S. Army captain 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.
According to the court filing, 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 a bus stop. On Oct. 12, 2007, Decareau turned over to the FBI a CD of the crime scene photos.
In their court papers, the defense lawyers for the Blackwater guards say a prior team of prosecutors in 2008 and 2009 "withheld Decareau's photographs of the AK-47 shells."
On Feb. 13, 2009, the government told the defense lawyers that it was providing over 3,700 photographs of the crime scene.
"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 states. "The original trial team produced additional photographs on July 27, 2009, but again did not produce the photos of the AK-47 casings."
It says 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 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 lawyers detailed instances in 2008, 2009, 2012, 2013 and earlier this year in which the photos of the spent shell casings could have come to light, but didn't.
For example, 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.