Slatten Fights Unjust Verdict

Last December, erroneous legal rulings and prosecutorial misconduct denied Nick Slatten a fair trial and resulted in his wrongful conviction. If necessary, Nick will have the opportunity to appeal these issues to the D.C. Circuit Court of Appeals. However, before the trial court sentences Nick to life in prison for shots that were not his, he is fighting the verdict in the trial court.

Last Friday, Nick’s defense team filed two key motions designed to avoid the need for an appeal that is almost certain to result in the reversal of Nick’s conviction. The first motion does three things. First, it seeks a judgment of acquittal because the evidence is legally insufficient to support Nick’s conviction. Second, and alternatively, the motion seeks a new trial because the jury’s verdict is against the weight of the evidence. Third, and independent of the Court’s rulings on the first two points, the motion seeks to arrest the judgment because the court lacks jurisdiction. The second motion is a motion for new trial based on specific errors—including prosecutorial misconduct—that denied Nick a fair trial. This motion also seeks an evidentiary hearing to further investigate two of the issues raised in the motion.

The motions are available HERE and HERE, and the key points are noted below.

MOTION FOR JUDGMENT OF ACQUITTAL OR NEW TRIAL BASED ON THE EVIDENCE

The introduction of Nick’s first motion summarizes the clear evidence of Nick’s innocence and why the trial court is “duty-bound” to correct the “serious miscarriage of justice” of the jury’s guilty verdict that, if not corrected by the courts, will result in Nick dying in prison for shots that simply were not his:

There has never been a weaker prosecution case in the collective experience of undersigned counsel (nearly 100 years), and more than one of us has obtained court-directed acquittals in prior cases. A serious miscarriage of justice has occurred and this Court is duty-bound to fix it. Mr. Slatten, who risked his own life to protect his country and its citizens, was convicted of a crime that he did not commit.

Judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure is required because there is insufficient evidence to establish the very first element of first-degree murder—that Mr. Slatten caused the death of . . . the driver of the white Kia sedan. Someone else, Paul Slough, confessed on multiple occasions to the shooting, and the D.C. Circuit held that “he was likely telling the truth” when he confessed, United States v. Slatten, 865 F.3d 767, 808 (D.C. Cir. 2017) (per curiam); every eyewitness to the shooting corroborated Mr. Slough’s confessions and testified that a turret gunner was the shooter; the physical evidence corroborated Mr. Slough and the eyewitnesses; and Mr. Slatten was not in a position to have made the fatal shot. On top of all of this, no witness testified that Mr. Slatten fired his weapon at the white Kia sedan, much less that he shot and killed its driver; no physical evidence linked Mr. Slatten to the shooting; and Mr. Slatten never told anyone that he shot the driver. This evidence creates reasonable doubt as a matter of law. There is also insufficient evidence of several other essential elements—premeditation, malice aforethought, mitigating circumstances, jurisdiction, and venue.

The appropriate remedy in this case is an acquittal that puts a permanent end to this unjust prosecution. But the Court also has the duty, under Rule 33 of the Federal Rules of Criminal Procedure, to grant a new trial when the verdict is against the weight of the evidence such that a miscarriage of justice may have occurred. When judged by this standard, it should be obvious to anyone that the evidence in this case weighs heavily against the verdict. This evidentiary imbalance alone justifies a new trial and, when combined with the trial errors set forth in the Motion for New Trial filed today, the question is not close.

For the reasons set forth below, Mr. Slatten is entitled to a judgment of acquittal or, in the alternative, a new trial. The Court should also arrest judgment pursuant to Rule 34 because it lacks jurisdiction over the charged offense.

After detailing the evidence presented at trial, the motion summarizes it in the following chart:

Nick Evidence Chart.jpg

In addition, the motion highlights “additional evidence of [Nick’s] actual innocence,” which “was not admitted at trial, but painfully underscores that a miscarriage of justice has occurred”:

 A third Iraqi police officer eyewitness identified Mr. Slough as the person who shot and killed the driver of the white Kia. How many eyewitnesses does it take?

 Mr. Slough apologized to his teammate, Mr. Ridgeway for the shooting incident in Nisur Square, which the government consistently has contended was initiated by the fatal shots fired at the white Kia driver.

 [Redacted information. NOTE: Several important issues remain shielded from public view because of legal rulings in the case, including at least one of which that bears on why the jury’s guilty verdict is a miscarriage of justice.]

 Government agents admitted to the victim’s father that Mr. Slough shot his son and the father refused to testify against Mr. Slatten because “[c]hanging these charges to others, a serious and risky drift, may put doubts on the honesty of these trials.”


After concluding that “[t]he honesty of this trial is indeed in doubt,” the motion requests the judgment of acquittal that would end this unjust prosecution and nightmare for Nick. Alternatively, it requests a new trial in which Nick is afforded the fair trial required by the Constitution. Finally, the motion requests that the court arrest the judgment—which would be equivalent to a judgment of acquittal—because in Nick’s trial, the government failed to present evidence similar to the evidence that the D.C. Circuit held was sufficient to establish jurisdiction over the 2014 joint trial.

MOTION FOR NEW TRIAL BASED ON ERRORS

Unlike the first motion’s focus on why the evidence establishes Nick’s innocence or at the very least requires a new trial, Nick’s second motion underscores the trial errors—including prosecutorial misconduct—that denied Nick a fair trial. Because Nick did not receive a fair trial, as argued in the motion’s introduction, the jury’s guilty verdict “cannot, and will not, stand.”

The D.C. Circuit recently cautioned the U.S. Attorney’s Office that it “expects prosecutors to litigate with the recognition that they represent ‘a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all.’” United States v. McGill, 815 F.3d 846, 920 (D.C. Cir. 2016) (per curiam) (quoting Berger v. United States, 295 U.S. 78, 88, (1935)). As the D.C. Circuit instructed, “[a] just outcome obtained through a fair, evenhanded, and reliable process should be the government’s goal; it is not to win at any cost.” Id. The government sadly lost sight of its duty to govern impartially in this case. Time and again, on every core issue, the prosecutors broke the rules in order to win at any cost. They violated this Court’s orders; misled the jury; and argued facts not in evidence. The end result is a verdict that is a miscarriage of justice. Mr. Slatten did not receive a fair trial. This verdict cannot, and will not, stand. The Court should grant Mr. Slatten a new trial.

The government’s misconduct, in and of itself, demands a new trial. But other legal errors contributed to and infected this verdict. The relevant evidence was swamped by prejudicial and emotional testimony regarding other shootings that unfairly tarnished Mr. Slatten by association. The jury instructions incorrectly told the jury that Mr. Slatten needed to have a reasonable belief in the need to use deadly force in self-defense. And both the government and the Court impugned the integrity of defense counsel in front of the jury without basis.

Any one of the errors set forth below requires a new trial. When the errors are viewed cumulatively, the conclusion that justice was not done is all the more manifest. The government cannot demonstrate that the cumulative effect of these errors did not affect Mr. Slatten’s substantial rights. If the Court does not grant Mr. Slatten’s motion for judgment of acquittal, it should grant him a new trial.

More specifically, the motion argues nine “core issues” of government misconduct that require a new trial:

  1. Misconduct regarding earwitness testimony of Matthew Murphy

  2. Misconduct regarding earwitness testimony of Jimmy Watson

  3. Misleading the jury regarding Paul Slough’s confessions

  4. Misleading the jury regarding the credibility of the government’s case

  5. Misleading the jury regarding the alleged wound in the Kia driver’s forehead

  6. Presenting undisclosed expert testimony to rebut evidence of incoming fire

  7. Abusing the trial court’s rulings to present prejudicial and improper evidence of propensity

  8. Failing to explain a witness’s suspicious change in testimony (to match government’s wording rather than the witness’s prior testimony)

  9. Misleading the jury regarding the presumption of innocence

In addition, the motion argues that a new trial or evidentiary hearing is required for five other reasons:

  1. The admission of irrelevant, unfairly prejudical evidence concerning post-Kia shootings and victims with which Nick was not charged requires a new trial

  2. Attacks by the government AND THE TRIAL COURT on defense counsel in front of the jury require a new trial

  3. Errors in the jury instructions deprived Nick of a fair trial

  4. Apparent juror misconduct requires an evidentiary hearing

  5. The government’s withholding of classified information deprived Nick of a fair trial

Then, the motion concludes with a “cumulative error” claim, which explains why, in addition to individually warranting relief, the impact of all of the errors addressed in the motion requires a new trial:

Although any one of these errors is sufficient to require a new trial, their prejudicial effect is all the more apparent when viewed cumulatively. As discussed above, in determining whether the government has shown that an error was harmless, courts consider (1) whether the error went to a critical issue in the case; (2) whether the government capitalized on the error in its arguments to the jury; and (3) the strength of the government’s case. Of these, the final factor—the strength of the government’s case—is of paramount importance.

As set forth in more detail in Mr. Slatten’s Motion for a Judgment of Acquittal, the government’s case against Mr. Slatten is exceptionally weak. No one saw Mr. Slatten shoot the white Kia driver; he never said that he shot the white Kia driver; and no forensic evidence ties him to the shooting. The government’s entire case hinges on the auditory perceptions of two witnesses, whose accounts of what happened that day substantially conflicted. Even viewing the case in the light most generous to the government, there is substantially more evidence implicating Paul Slough in the killing of the white Kia driver than there is evidence implicating Mr. Slatten. Given the weakness of the government’s case, the cumulative effect of the errors set forth above—all of which went to critical issues in the case, and nearly all of which the government seized on in closing argument—undoubtedly affected the verdict. The Court should grant a new trial.

WHAT’S NEXT?

Now that Nick’s motions have been filed, we wait. The government has a chance to respond, and then Nick has a chance to reply. Extensions of time for at least the government’s response are expected to be requested and granted. Our best estimate is that all of the filings should be completed in March. After that, the trial court will consider the motions and either hold a hearing or simply rule without a hearing. There is no deadline by which the trial court must rule, although we anticipate a ruling before the summer months. If relief is granted, Nick will either come home or receive a new trial. If relief is denied, Nick will take an appeal to the D.C. Circuit Court of Appeals.

We hope you will take the time to read through these motions and see the injustice and government misconduct for yourself. Although we are doubtful that the court that allowed all of these errors to occur will do anything to correct them, our hope is that the court will see that a reversal on appeal is inevitable and at least grant Nick a new trial. As the defense has argued, Nick’s guilty verdict “cannot, and will not, stand.” The only question is how many more years must Nick stand up for a prison count waiting on justice that has so far eluded him and the other men of Raven 23.

At present, those other men, Paul Slough, Evan Liberty, and Dustin Heard are sitting in federal prison without valid sentences, following wrongful convictions by a civilian jury that was denied key evidence of their innocence. There is still some hope that a positive outcome in Nick’s case—however long that takes—could potentially help these men clear their names and come home to their families.

We thank you for your continued prayers and support as we continue to #KeepTheFaith for true justice at some point in this life.