From the Filings: The Pieces Don't Fit

In the first two parts of our “From the Filings” series, we addressed the impossibility of the shot that the government claims Nick made, as well as the confessions of another Raven 23 team member to making that shot and how the eyewitness testimony and physical evidence corroborates that this person—NOT Nick—is the actual shooter/killer.

Today’s post, the final in the series, addresses how the evidence on which the government relied to convince a civilian jury to convict an innocent man does not—and cannot as a matter of law—add up to proof of guilt beyond a reasonable doubt.

No Witness Testified that Nick Shot the Driver of the White Kia, No Physical Evidence Tied Nick to the White Kia, and Nick Made No Statement to Anyone that He Shot the Driver

There is a shocking lack of evidence in this case.

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Lacking evidence, the government unsuccessfully attempts to cobble together disparate pieces of testimony.  The government’s theory of evidentiary sufficiency as to who killed the driver spans only four sentences of its brief:

“After the first shots, Ali Al-Hamidi, an Iraqi police officer, ran to the Kia and saw the driver Al-Rubia’y had been shot in the head, causing the Kia to slowly roll forward. Sarhan Moniem, another officer, observed the driver with a wound in the middle of his forehead. Watson and Murphy both identified the defendant as the first member of Raven 23 to shoot. From this, a rational juror could conclude that the initial, single shots from the convoy killed Al-Rubia’y, and that the defendant, the first Raven 23 member to shoot, was the one who killed him.”

Opp’n 7.  This theory is predicated upon two mismatched puzzle pieces:  the testimony of Officers Ghalaf and Moniem about what they saw (and heard), and the testimony of Messrs. Watson and Murphy about what they supposedly heard.  The puzzle pieces contradict a conclusion that Mr. Slatten killed the driver, the government mischaracterizes the pieces, and the pieces do not fit.

The Evidence Contradicts Nick’s Guilt

The first puzzle piece—the testimony of Officers Ghalaf and Moniem—contradicts a conclusion that Mr. Slatten killed the driver.  Officer Ghalaf testified he was 100% certain that a turret gunner in Mr. Slough’s position shot and killed a driver.  11/19/18 PM Tr. 2204:8-9, 2206:6-15, 2168:1-25 (Ghalaf).  Officer Moniem similarly testified that the turret gunners fired the first series of shots that killed the driver, 11/19/18 AM Tr. 2036:7-10 (Moniem); he further testified that the first shots did not emanate from a shooter inside the vehicle where Mr. Slatten was located, id. at 2044:9-11, 2046:17-21 (Moniem).  No reasonable jury could rely upon the testimony of two eyewitnesses who testified that a turret gunner, not Mr. Slatten, killed the driver to conclude the opposite beyond a reasonable doubt.

The Government Mischaracterizes the Evidence

The government mischaracterizes the second puzzle piece, claiming that Messrs. Watson and Murphy, its earwitnesses, “both identified the defendant as the first member of Raven 23 to shoot.”  Opp’n 7.  Mr. Watson, in fact, testified that “[t]here’s no sequence I recall” regarding who fired first.  11/14/18 PM Tr. 1488:12-14 (Watson).  The government disregards Mr. Watson’s trial testimony and instead urges a life sentence based upon Mr. Watson’s prior inconsistent grand-jury testimony [during which Watson was impaired by narcotics].  Prior inconsistent testimony, however, does not “suffice to support a conviction since it is unlikely that a reasonable juror could be convinced beyond a reasonable doubt by such evidence alone.”  United States v. Orrico, 599 F.2d 113, 118 (6th Cir. 1979).  Unable to grapple with this precedent, the government ignores it.  The government mischaracterizes Mr. Watson’s grand-jury testimony in any event.  He did not testify that he heard Mr. Slatten fire first as the government falsely claims in its brief, Opp’n 4; rather, he testified that he heard a series of pops before he supposedly heard Mr. Slatten fire.  11/15/18 AM Tr. 1607:13-22, 1609:18-1610:1 (Watson).  He further testified that, although he did not recall hearing firing from the follow vehicle, he assumed his teammates in the follow vehicle, where Mr. Ridgeway was located, fired first because they had called out contact, 11/14/18 PM Tr. 1497:1-11 (Watson), which would have accounted for the initial series of pops.  Corroborating this sequence, Mr. Ridgeway testified that he participated in the initial flurry of gunfire.  11/27/18 PM Tr. 2706:25-2707:6 (Ridgeway).

Like Mr. Watson, Mr. Murphy offered different accounts of the sequence of sounds he claimed to have heard that day.  In his sworn statement two days after the incident, Mr. Murphy wrote that the first thing he heard was a “large volume of fire,” “referring to” “240 fire” by Mr. Slough.  11/13/18 AM Tr. 1238:17-1240:5 (Murphy).  Only later did Mr. Murphy claim to have heard at the outset of the incident two unfamiliar pops, which he now speculates emanated from Mr. Slatten’s SR-25. [PORTION REDACTED]. In a dishonest about face, the government now relies upon this same speculation as the foundation for conviction, something an honest judicial system cannot tolerate.

The Pieces Do Not Fit

The puzzle pieces also do not fit with each other.  Officers Ghalaf and Moniem testified that a burst of initial shots, not two distinct sounds as alleged by Messrs. Watson and Murphy, preceded the death of the driver.  11/19/18 PM Tr. 2205:19-25 (Ghalaf) (“three to four shots” “intermittent, but fast”); 11/19/18 AM Tr. 2038:8-16 (Moniem) (“dense shooting” of “as many as ten” shots “[a]pproximately”); see also 11/19/18 PM Tr. 2206:22-24 (Ghalaf) (testifying that there were “three or four” bullet holes in the front windshield at time he observed the driver had been shot).  Under Officer Ghalaf and Moniem’s testimony, any of the shots within this initial flurry could have killed the driver; there is no proof it was shot one or two.  Pairing the testimony of the Iraqi police officers with the two-distinct-sounds testimony, therefore, provides no basis to conclude beyond a reasonable doubt that Mr. Slatten killed the driver.

Furthermore, as set forth in the opening brief, there was evidence in this trial of another target for Mr. Slatten’s shots. Mot. 22 n.6. As the Court remembers, DSS agents met with Raven 23 members before searching Nisur Square and, based in part on information provided by Raven 23 members, the agents searched a location to the south/southwest of the traffic circle and discovered eight dispensed 7.62mm shells, the same shells used in an AK-47.

Moreover, Messrs. Watson and Murphy do not describe the same type or sequence of sounds:  Watson described “a slow boom, boom,” 11/14/18 PM Tr. 1497:14-15 (Watson); Murphy described “two loud hollow popping sounds, like a firecracker in a 55-gallon drum,” 11/7/18 PM Tr. 1017:9-10 (Murphy); Watson testified that a series of pops preceded the supposed booms from Mr. Slatten’s rifle, 11/15/18 AM Tr. 1607:13-22, 1609:18-1610:1 (Watson); Murphy did not separately identify a series of pops that preceded Mr. Slatten’s alleged shots, 11/7/18 PM Tr. 1017:4-7 (Murphy); Watson testified that a radio call preceded Mr. Slatten’s supposed shots, 11/14/18 PM Tr. 1493:715 (Watson); 11/15/18 AM Tr. 1611:17-1613:4 (Watson); Murphy claimed the radio call was after Mr. Slatten’s supposed shots, 11/13/18 AM Tr. 1234:16-24 (Murphy).  These contradictory, mischaracterized, mismatched puzzle pieces do not add up to guilt beyond a reasonable doubt.

Although the evidence simply is not there, the government urges the trial court “to take a lazy, rubber-stamp approach” that would force Nick to appeal his wrongful conviction. How much more of his life does this innocent, decorated combat veteran have to lose for shots that were not his?