Appellate Revelations Strengthen Raven 23 Appeal

By now, many of you have heard that the government admitted during oral arguments in the Raven 23 appeal that the ENEMY fired first.  This admission marked a complete 180 from the “unprovoked massacre” theory of the case that the government relied upon to ask a civilian jury to convict, and it begs the question of why innocent men defending themselves in a war zone are still in prison.

However, you have not likely heard about other evidence of innocence because it was presented behind closed doors.  Previously, we wrote about how the government vindictively charged Nick Slatten with murder after Nick beat the government’s attempts to include him in the lesser charges against the other men.  However, recent revelations during the appeal—that the government has had proof of Nick’s innocence from day one but was wrongly permitted to hide that proof from Nick’s jury and is shockingly still permitted to hide that truth from the public to this day—strengthen Nick’s case even more.  Accordingly, we have revised our Murder? page, which features Nick’s unique issues, and are storing its previous content (which is still instructive on many of the issues in Nick’s case) here.  We hope you’ll take some time to read the updated page, which is accessible HERE.

For additional information about Nick’s case, below is the Murder? page content prior to today:

 

Murder?

Nick Slatten alone was charged with first-degree premeditated murder, carrying a minimum life sentence in prison.  Why?  Because at the eleventh hour, the government needed a villain.

Background

Less than two months before the 2014 trial began, Nick successfully asserted his right not to be prosecuted under the same reckless theory underlying the manslaughter and attempted manslaughter charges against Paul, Evan, and Dustin.  Though Nick's fight to extract himself from the case is legally-complex and spans almost seven years, at a very high level, this is what happened:  

In 2008, Nick, Paul, Evan, Dustin, and a fifth guard (Donald Ball) were indicted based on the allegation that they had recklessly overreacted to a car bomb attack on U.S. interests in a war zone, unjustifiably killing and wounding numerous Iraqis in Baghdad's Nisur Square.  On New Year's Eve 2009, the first trial judge, Judge Ricardo M. Urbina, dismissed all charges against these men because the government had improperly used their compelled statements (their shoot reports) to secure their indictments.

Simply put, the government's theory was that anyone who shot in Nisur Square shouldn't have, and the government improperly used the defendants' shoot reportswhich identified who and what they shot and whyas the foundation for its entire case.

As Judge Urbina explained, this was a "reckless violation of the defendants' constitutional rights."  In his opinion, Judge Urbina heavily chastised the government, taking many opportunities to point out its "reckless" conduct, the irony of which was certainly not lost on the defendants since the government had in fact recklessly accused them of being reckless.

Judge Urbina went so far as to state that "[t]he explanations offered by the prosecutors and investigators in an attempt to justify their actions and persuade the court that they did not use the defendants' compelled testimony were all too often contradictory, unbelievable and lacking in credibility."  
 
Before Judge Urbina threw out the entire case, however, the government itself moved to dismiss the indictment against Nick, and even admitted that "relative to the other defendants the evidence against Mr. Slatten was weak."  Because the government's motion to dismiss Nick from the case was still pending when Judge Urbina threw out the entire case, it was denied as moot.

The government appealed Judge Urbina's decision to the DC Circuit Court of Appeals and ultimately (in the Spring of 2011) won a shot at a do-over with the caveat that, if the government pursued new indictments, it could not use evidence and testimony tainted by the defendants' compelled statements to secure those indictments.  Importantly, however, during the appeal, the government made clear in various ways that it was not challenging Judge Urbina's order dismissing the case with respect to Nickincluding representing to the DC Circuit that the government was "not revisiting [its] view that th[e] indictment is insufficient as to [Nick] Slatten."  Meaning, in the simplest of terms, that Nick was out of the case.  Indeed, the DC Circuit's opinion giving the government a shot at a do-over specifically stated that the reversal was with respect to everyone but Nick, who "was out of the case."
 
Fast forward to 2013: The government did in fact secure new indictments against Nick, Paul, Evan, and Dustin (but gave Donald Ballwho admitted to firing two shots into the driver-side door of the Kia to stop the driver's approach on the convoyimmunity).  In reindicting these men, the government proceeded under the same reckless theory as before in support of its manslaughter and attempted manslaughter charges.  (Whether the government actually complied with the DC Circuit's order not to use tainted testimony to secure these new indictments is an entirely different issue that is still up for debate.)
 
Though Nick's 2009 dismissal from the case was without prejudice and therefore in and of itself did not prevent the government from reindicting him, the problem for the government, however, was thatunlike Paul, Evan, and DustinNick had been out of the case since 2009, and the five-year statute of limitations for manslaughter and attempted manslaughter (which began to run on the date of the Nisur Square incident in 2007) expired in 2012.  This didn't stop the government from trying to prosecute Nick for charges that were legally barred, however.  And, surprisingly enough, the judge who ultimately tried the case in 2014 because Judge Urbina had retiredJudge Royce C. Lamberthruled that the government could prosecute Nick for these charges.  Judge Lamberth even went so far as to call Nick's attempts to assert his right not to be illegally prosecuted "frivolous."
 
When Judge Lamberth refused to dismiss the time-barred charges, Nick's defense team rushed to the DC Circuit andless than two months before the 2014 trial was scheduled to beginsecured an order that had the effect of requiring Judge Lamberth to dismiss Nick from the case.  In this order, the DC Circuit concluded that its 2011 reversal giving the government a shot at a do-over "clearly applied only to Slatten's four co-defendants, " and further emphasized to the very trial court that was going to allow Nick to be prosecuted on legally-barred charges "the interest of the judicial branch in seeing that an unambiguous mandate is not blatantly disregarded."

Vindictive Prosecution

Since he had secured a dismissal from the casethis time with prejudiceNick and those closest to him thought his nightmare was over.  They thought he would be able to go into court and testify to what happened in Nisur Square and help put an end to Paul, Evan, and Dustin's nightmare as well.  But the government could not have that.  In a surprise move, the governmentapproximately one month before the 2014 trialindicted Nick for the premeditated murder of the driver of the white Kia, changing its entire theory of what happened in Nisur Square.  This new theory was not based on some last-minute revelation, as the government itself represented to Judge Lamberth that the prosecution's evidence of first-degree murder would be "substantially the same [as], if not identical" to the evidence it was going to use in its manslaughter case, and had similarly represented to the DC Circuit (in the context of fighting about whether Nick was still in the manslaughter case or not) that if it was not permitted to prosecute Nick for manslaughter he would escape criminal liability for his alleged role in the Nisur Square incident.   Rather, the government indicted Nick for premeditated murder because it was the only card left to playthe only charge that does not carry a statute of limitations.  Then, the government offered not to proceed with the murder charge if Nick would give up his right not to be prosecuted for manslaughter and attempted manslaughter and put himself back in the case under the same reckless theory on which the government had based its case from day one (and had spent an enormous amount of time and resources preparing to try).  Knowing he did not shoot, let alone kill, the driver of the white Kia, Nick declined. 

But that was not the end of it.  Nick's defense team filed a motion to dismiss the murder charge based on the legal concept of vindictive prosecution.  The essence of this claim is that the government improperly punished Nick for successfully asserting his right not to be prosecuted for a lesser charge by charging him with a greater charge, with no change in the law or evidence, thereby violating his constitutional right to due process.  Judge Lamberth again refused to grant Nick any relief and allowed the government to proceed with the murder charge.  Judge Lamberth's decision on this issue is just one of the many reasons Nick's defense team will ask the DC Circuit to overturn his conviction on appeal.

Legally Insufficient Evidence

In addition to improperly allowing the government to prosecute Nick for premeditated murder, Judge Lamberth failed to protect Nick's most basic constitutional rights by submitting his case to the jury even though the government failed to produce any evidence, let alone the required legally sufficient evidence, that Nick murdered the driver of the white Kia. 

Legally sufficient evidence is evidence thatif the jury accepts it as truecould support the conclusion beyond a reasonable doubt that the government established a given element of the crime at issue.  Legally sufficient evidence can't be based on guesswork, meaning it can't just create a suspicion of guilt, it has to supportbeyond a reasonable doubtthe conclusion of guilt.  In most cases, the obligation to present legally sufficient evidence does not present much of a hurdle for the government.  This is because there is often contradictory testimony on each element of the crime.  For a hypothetical example, in Joe's trial for murdering Sandy, the government has to prove that Joe actually killed Sandy.  If Bob testifies he saw Joe kill Sandy, but Eric testifies he saw Bob, not Joe, kill Sandy, it's up to the jury to decide who is telling the truth.  If the jury believes Bob's testimony, it could find Joe was the killer and, assuming all the other elements of the crime are established, find him guilty of murder.  Though Joe's case could have come out either way, that's precisely why we use juries in the American judicial system--to decide disputed issues of fact. 

But, where the facts simply are NOT there to support a conviction, the judge is legally required to grant what is called a judgment of acquittal to prevent the jury from convicting the defendant based on things other than the evidence--like prejudice against the defendant, sympathy for the alleged victims, or any other reason that has nothing to do with whether the defendant actually committed the crime of which he is accused.

In Nick's case specifically, the law required Judge Lamberth to grant a judgment of acquittal because the government failed to prove that Nick shot and killed, let alone premeditated the murder of, the driver of the white Kia.  There was NO testimony that Nick shot or killed the driver of the white Kia, or that he fired the first shots in Nisur Square.  There was NO forensic evidence that Nick shot or killed the driver.  There was NO testimony from anyone that Nick admitted to shooting or killing the driver.  To the contrary, government cooperator, Jeremy Ridgeway, testified that Nick told him after the incident that he had suppressed an active shooter (clearly not the driver of the white Kia) who then slumped forward.  Not only that, but Ridgeway (who was an up gunner stationed in a turret on top of one of the vehicles) testified that he fired the first three to five well-aimed shots through the Kia's unbroken windshield at the driver.  Forensic evidence backed up Ridgeway's admission because a fragment from an M-4 carbine (Ridgeway's weapon type, but not Nick's) was found embedded in the Kia's steering wheel.  In addition, Paul Slough's attorney acknowledged that Paul (also an up gunner) was the first person from the convoy to fire on the Kia (into its engine block when the driver failed to comply with warnings to stop), and several witnesses (including Iraqis) testified that they were certain the first shots fired from the Raven 23 convoy came from the up gunners.  Nick was not an up gunner; he was the designated defensive marksman (basically the team's sniper), and he was located inside the command vehicle.  Finally, numerous witnesses testified that the white Kia presented a threat to the convoy.  

So, what was the government's "evidence" that Nick actually shot and killed the driver of the white Kia?  One member of Raven 23Jimmy Watsontestified that he HEARD Nick's sniper rifle fire twice during the incident.  Watson testified that he heard AK-47 (i.e., enemy) gunfire before Nick shot, that he had "no idea" what Nick shot at, and "no idea" whether Nick fired before or after the up gunners fired. 

With Watson's testimony clearly insufficient to establish Nick shot and killed the driver, the government resorted to a smear campaign against Nick. 

Judge Lamberth ruled (yet another ruling that is ripe for challenge on appeal) that the government could introduce certain evidence known as "prior bad act" evidence against Nick.  A small minority of the members of Raven 23 who were given immunity generally testified that Nick did not like Iraqis and that in other engagementsNOT Nisur SquareNick was the first member of the team to fire.  While these witnesses acknowledged they weren't looking down Nick's scope, and they did not have the same vantage point as Nick during these engagements, their testimony made clear that they did not agree with, or at least questioned, Nick's shots.  This summary of their testimony is extremely generous to these witnesses.  What they actually did was come into court and participate in the government's character massacre against Nick (as well as Paul and Evan), not based on any misconduct by the defendants they witnessed in Nisur Square.  And while several other Raven 23 team members testified that the only member of Raven 23 whose actions and judgment they questioned was Jeremy Ridgeway's, and while there are numerous ways to prove that the few witnesses who clearly disliked Nick (and Paul and Evan) either purposely mischaracterizedor at the very least misrememberedmany of the things they testified about, the important fact remains that the government should not have been permitted to engage in a character massacre that had nothing to do with Nisur Square and that served no purpose other than to improperly prejudice the jury against Nick, asking it to make the impermissible inference that he must be guilty because he's a "bad" guy. 

Having massacred Nick's character and having established through Watson ONLY that Nick shot during the incident, the government then asked the jury to find that Nick murdered the driver of the white Kia in an unprovoked ambush attack with the first shots fired in Nisur Square--simply because he hates Iraqis and wanted to start a firefight.  And it used the testimony of Mr. Monem, an Iraqi police officer, as the linchpin for this theory. 

Monem did not see who fired the first shots at the Kia.  He testified that he heard short, successive shots, heard a woman scream, ran toward the Kia, saw a single baseball-sized hole in the windshield and a quarter-sized hole in the driver's forehead, and saw the driver was leaning to the side toward the passenger.  Even though Monem also testified that he "was so close" when the shooting started that he could "tell . . . from the sound" that the first shots were "coming from the turrets and not from the holes or the windows that are in the vehicles," the government mischaracterized Monem's testimony, telling the jury, "Was he entirely clear whether the shots came from within the vehicle or the turret of the vehicle?  No."  Then, it asked the jury to rely on Monem's testimony to speculate that Nick shot the driver through a porthole from his position inside the command vehicle, arguing that (1) Nick was the person capable of making the "precision" shot to the forehead that Monem had described since Nick was the sniper (even though the evidence established Ridgeway was more than capable of making the same shot with his M-4, just as he testified he did); and (2) because Monem saw the driver slumped toward the passenger Nick must have shot the driver rather than an active shooter who slumped forward after being shot.

Using this "evidence" that does not even come close to resembling the legally sufficient evidence the law requires, the government sold Nick's premeditated murder charge to the jury, who rendered a guilty verdict that should not withstand Nick's sufficiency challenge on appeal.    

But it actually gets worse than all this.  Visit our Perjured Testimony page to read about howafter trialMonem voluntarily submitted a statement to the court that proves his trial testimony, on which the government based its entire theory of what happened in Nisur Square, was perjured.