From the Filings: The Shot Was Impossible

Following Nick Slatten’s wrongful conviction for an alleged war-zone crime that he simply did not commit, Nick has filed two post-verdict motions designed to overturn his wrongful conviction. Presently, we are awaiting a hearing date, and the court’s ruling on Nick’s motions will determine whether he is sentenced to life in prison (in which case Nick will appeal to a higher court), whether the case against Nick is dismissed in its entirety, or whether Nick will receive a new trial.

Nick did not shoot—let alone kill—the person he was wrongly convicted of murdering: the driver of a white Kia sedan. In a three-part series using the legal filings in Nick’s case, we’re highlighting why the evidence is insufficient as a matter of law to establish beyond a reasonable doubt that Nick caused the death of the Kia’s driver—which is just ONE of the required elements for premeditated murder.

The Shot Was Impossible

The government offered no evidence allowing a rational jury to conclude beyond a reasonable doubt that Mr. Slatten could have made the fatal shot (1) laying prone on the bench in the rear of the vehicle, (2) constrained by a six-inch porthole, and (3) obstructed by numerous physical barriers.

(1) Shot Was Impossible While Laying Prone

[Regarding the lack of evidence that Nick was “laying prone on the bench in the rear of the vehicle,” as the government argued to the jury,] the government attempted to have its shooter recreate the supposed shooting by laying prone on the bench and shooting through the porthole, but he could not do it. A still image the defense extracted from the government’s video of the attempted recreation reveals that the shooter had to place pads on the bench to elevate his body several inches in order to shoot out of the porthole.  


The government did not disclose this exculpatory still to the defense; it disclosed only the video, leaving it to chance whether defense counsel would notice the pads, which are difficult to discern when watching the video in real speed.  Defense counsel noticed this critical fact only after viewing the video multiple times and, even then, counsel believed the pads were bricks.  Perpetuating its pattern of deception and misdirection, the government writes in its brief that its shooter, Agent Cramer, “never testified, as the defendant alleges, ‘it was not physically possible’ to shoot out of the porthole without the pads.”  Opp’n 11.  Here is Agent Cramer’s actual testimony:

Q. Okay. Now, sir, when you shot from the back of the BearCat you actually were laying on top of bricks, weren’t you?

A. There were pads that we had from the HRT’s rifle range out there that I had used to rest, at least, part of my upper torso on so I could reach that gunport.

Q. There were two layers of them, correct?

A. Yes, sir.

Q. And that raised your elbow a good 4 inches or more?

A. Give or take.

Q. Right. And that made your elbow high enough to get the weapon to the firing port, correct?

A. Yes, sir.

12/10/18 AM Tr. 4015:21-4016:7 (Cramer) (emphases added).  As Agent Cramer testified and the still image makes clear, it was physically impossible to reach the porthole without the pads.  See also Ex. 1 (GX9400) (photo depicting distance between porthole and bench).  In any event, it was the government’s burden to prove beyond a reasonable doubt that it was possible.  No reasonable jury could conclude that it did.

(2) No Evidence Nick Had the Angle

The government presented no evidence that Mr. Slatten had the angle to make the shot either. Even now, the government does not explain how the shot was possible given the relative locations of Mr. Slatten’s vehicle and the white Kia. . . .

Although it was not Mr. Slatten’s burden to discharge at trial, the government is incorrect when it asserts that the fact “that the white Kia was 20 to 40 degrees from the command vehicle is unsupported by record evidence.”  Opp’n 11.  The record evidence includes an aerial photograph of the roadway, the final resting spot of the Kia, the radiator stain where Mr. Slatten’s armored vehicle was located, and the police kiosk that would have obstructed shots at certain angles.

The record evidence also includes testimony by Agent Cramer about the range of possible angles.  Agent Cramer testified that the final resting spot of the Kia was approximately 40 degrees to the left of Mr. Slatten’s vehicle:

Q. Okay. So we know where -- at least where the Kia ended up, that it was approximately 40 degrees to the left of the BearCat, right?

A. Yes, sir.

12/10/18 AM Tr. 4000:15-18 (Cramer).  This testimony is depicted graphically in DX7200 (admitted for demonstrative purposes):

Agent Cramer further testified that the Kia would have been approximately 20 degrees to the left of Mr. Slatten’s vehicle at the furthest distance away on the northbound road where it would not have been obstructed by the police kiosk:

Q. Okay. Let’s make our BearCat again (indicating).  Sir, this is the police kiosk right here?

A. Yes, sir.

Q. Okay. I’ll draw a line that goes right on the edge of the police kiosk (indicating), so 0, 10, 20 degrees.  Do you see that?

A. Yes, sir.

Q. So you’d agree that that angle is approximately 20 degrees?

A. Yes, sir.

Q. And so, if the white car were back this way, the angle that you’d be looking from the BearCat to the white Kia would be 20 degrees, right?

A. Yes, sir.

Q. And once you got further back from here – at least for some range – that would be blocked, right?

A. At some point, yes, sir.

12/10/18 AM Tr. 4005:11-4006:2 (Cramer). This testimony is depicted graphically in DX7201 (admitted for demonstrative purposes):


Agent Cramer also testified that the FBI’s trajectory analysis showed that bullets entered the driver’s side of the Kia at an angle of approximately 40 degrees.  12/10/2018 AM Tr. 3999:144000:11 (Cramer); see Ex. 2 (GX9210V).  Thus, contrary to the government’s assertion, the range of angles (40 to 20 degrees) is supported by record evidence:  Agent Cramer’s testimony, the FBI’s trajectory analysis about which he testified, and the aerial image of the scene.

It is not physically possible to orient a rifle out of the porthole at those angles from the bench, a fact the government does not contest.  As Agent Cramer testified: 

Q. To actually aim that rifle 40 degrees to the left, you would have to move over here to the other side of the turret gunner, right?

A. Approximately. Yes, sir.

12/10/18 AM Tr. 4024:5-8 (Cramer).  This testimony is depicted graphically in DX7202 (admitted for demonstrative purposes):


Agent Cramer further testified about the 20 degree angle:

Q. So you think you could actually somehow turn the rifle 20 degrees to the left without moving?

A. No. I’d have to move, yes, sir.

Q. You’d have to move, right?

A. Yes, sir.

12/10/18 AM Tr. 4023:17-21 (Cramer).  This testimony is depicted graphically in DX7203 (admitted for demonstrative purposes):


Mr. Slatten could not have made the shot, and the government offered no evidence allowing a reasonable jury to conclude beyond a reasonable doubt that he could have. Furthermore, at angles of 20 to 40 degrees, the scope would be obstructed by the porthole, which would impair the shooter’s ability to aim.

(3) Physical Barriers Obstructed the View From Nick’s Location Inside the Vehicle, But Did Not Obstruct the View of Paul Slough (Who Acknowledged Shooting the Driver In Self-Defense) From Slough’s Location on Top of the Vehicle

The government fails to account for the very different vantage points of Mr. Slough and Mr. Slatten. . . . Mr. Slatten was constrained by a six-inch porthole; Mr. Slough was firing from the turret with an unobstructed 360-degree view.  In addition, Mr. Slatten was only a few feet off the ground blocked by numerous obstructions between his position and the Kia in the northbound lane.  Mr. Slough was firing from an elevated position, better able to see and fire over these intermediate obstructions.  The government says nothing in its brief about these obstructions.  The government cannot simply wish away the obstructions by ignoring them.  The photograph below is taken from the vantage point of Mr. Slatten’s vehicle facing the northbound lane.


This photograph depicts numerous obstructions—the police kiosk, the street light, the planter—but it does not include the two Iraqi police officers who were standing to the south of Mr. Slatten’s vehicle.  Nor does it include the multiple vehicles that were between the police officers and the white Kia, see 11/19/18 AM Tr. 2058:19-23 (Moniem) (testifying Kia was in fourth or fifth row of traffic); 11/19/18 PM Tr. 2208:2-15 (Ghalaf) (testifying Kia was in third row of traffic), obstructing any shot from the porthole, which was only a few feet above ground level.  See Ex. 3 (GX0555) (photograph of driver’s side of vehicle).  The government has never explained how Mr. Slatten, shooting from a porthole only a few feet above ground level, managed to shoot the white Kia driver through the windshield while, according to the government’s theory of the case, the car was located, stationary, behind several rows of traffic.  Again, the government cannot wish away the logical flaws in its case by ignoring them.  The government offered no evidence that the shot was possible given these intermediate barriers that stood between Mr. Slatten and the white Kia and it, therefore, failed to discharge its burden as a matter of law.

That the evidence establishes it was impossible for Nick to have made the shot is just the tip of the iceberg. Part two of our “From the Filings” series explains how someone else confessed and how all the eyewitnesses and physical evidence support this person’s confessions.