Criminal Procedure Case-study (2): The killing of James Kitterman

Five men, four of them US contractors were arrested by Iraqi police as a result of an investigation into the death of US businessman, James Kitterman, in Baghdad’s International Zone. It would appear that they are not however suspected of the murder itself. On 13 June 2009 the Washington Post reported that three of the men had been released on bail after questioning on a matter unrelated to the death of Mr Kitterman. The BBC reported that three of the five men were released on the basis that after questioning by an investigative judge, there was insufficient evidence to hold them further. On 14 June 2009 MSNBC reported that embassy spokesman James Fennell had told the Associated Press that the two others were transferred on Sunday 14 June 2009 to a U.S. military facility and “remain in custody pursuant to Iraqi judicial orders.”

Mr Kitterman is widely reported to have been found dead in the International Zone on the morning of 30 May 2009, with his throat slit, having also been stabbed in the chest. Associated Press reported on 8 June 2008 that Iraqi Government Spokesman, Ali al-Dabbagh had said that four Americans and one Iraqi were picked up on Wednesday 3 June 2009 during a raid on the Corporate Training Unlimited house. Al-Dabbagh said that the raid was ordered after Iraqi security forces received information that a suspect involved in the Kitterman case might be there and that the raiding party found the contractors’ weapons permits and operating license had expired and took them into custody.
If these men are tried for any offence, these may be the first Americans to be subject to the Iraqi criminal justice system since the Status of Forces Agreement signed by the US and Iraqi governments, which came into effect on 1 January 2009. One consequence of the Agreement was to remove the immunity from Iraqi legal proceedings which had protected US contractors’ in the period 2003 to end 2008 under CPA Order 17.
The London Times reported on 9 June 2009 that an Iraqi Ministry of the Interior official had said that those detained were being held at an Iraqi police station inside the International Zone. The five arrested men have been detained, according to the spokesman, in connection with an investigation into the murder conducted jointly by US and Iraqi investigators, in which FBI officials were present at a search of the men’s properties. Judge Abdul Sattar Beraqdar, the spokesman for the Iraqi High Judicial Council, told the Times that the men were being held while evidence was collected. If they are convicted, he said, they will be sentenced like any Iraqi.
The death penalty can be applied for the crimes of kidnapping under Articles 421, 422 and 423 of the Penal Code 111 of 1969 or for pre-meditated murder under Article 406.
Alleged Crime: Mr Kitterman was last seen alive on the night of 29 May 2009. He was found dead in his car on 30 May 2009.
Investigation commences: According to Article 1 of the Criminal Procedure Code 23 of 1971, criminal proceedings are initiated by an oral or written complaint that an offence has taken place. Under Article 43, the Public Prosecutor’s Office and an Investigating Judge must be notified of the offence. Under Article 46, the investigating judge takes over the investigation. The investigating judge can authorise searches, conduct an examination of the crime scene, issue summonses, obtain an arrest warrant from a judge, and interview and take depositions from witnesses including any suspects.
Search: Articles 72 to 86 regulate the power to search.
Arrest: The 5 men were arrested on Wednesday 3 June 2009 following a search of their property. Articles 92 to 108 of the Criminal Procedure Code deal with the arrest of suspects.
Detention ‘on remand’: Under Article 109(b) and (c), a person arrested under suspicion of murder can be detained for up to 6 months after which the matter must come before a judge, who can grant an extension to the period of detention. The New York Times reported on 7 June 2009 that a US embassy spokesman had said consular officials had visited the men and found that they were being accorded the rights due under Iraqi law.
Bail: Under Article 111, the judge who issued the decision to detain a suspect may decide to release him on bail. Under Article 114, bail conditions can include submission of a sum of money and / or an undertaking from the accused.
Information about rights: Under Article 123(b) and (c) a suspect must be informed of his right to remain silent and his right to legal representation before questioning.
Interviews by Investigative Judge: According to a CNN report on 9 June 2009 the men were seen by an investigative judge (qadi al-taqiq) on Sunday 7 and Monday 8 June 2009.
Coercion: Under Article 127 mistreatment, threats, injury, enticement, promises, psychological influence, or use of drugs or intoxicants are considered illegal methods of extracting a confession. Article 218 states “It is a condition of the acceptance of the confession that it is not given as a result of coercion”.
‘Charge’ / transfer for trial: Suspects are not charged with offences in the same way as in the UK or USA. If the investigating judge determines that there is sufficient evidence, under Article 130, he will transfer the accused for trial before the appropriate criminal court. The final charge is determined after transfer for trial under Article 187.