“The dignity of the United States Government will not permit the conviction of any person on tainted testimony.” Mesarosh v. United States, 352 U.S. 1, 9 (1956). Thus, a prosecutor’s use of perjured testimony represents “not just . . . misconduct, but more importantly . . . a corruption of the truth-seeking function of the trial process.” United States v. Agurs, 427 U.S. 97, 104 (1976).
Before a witness is permitted to testify in a criminal trial in the United States, the witness must swear or affirm that the testimony given will be the truth, the whole truth, and nothing but the truth. This is because at the most basic level a trial is a search for the truth--the truth of whether the defendant is guilty beyond a reasonable doubt of every element of the crime charged.
Sharia law is different. Under Sharia law, lying is permitted when the ends justify the means.
These two opposing belief systems clashed in the Raven 23 trial, with devastating consequences to men whose freedom depended upon the Iraqi witnesses who testified upholding their oaths to tell the truth despite religious beliefs that permit them to lie, especially where infidels are concerned.
At the 2014 joint trial, the government's key witness in support of its theory that Paul, Evan, and Dustin committed crimes in Nisur Square was Mr. Monem, an Iraqi police officer. Monem was the second witness the government called, and his testimony spanned several days.
Monem's testimony was THE key to the government's theory that Dustin, Evan, and Paul acted recklessly. Monem testified that after he saw the driver dead, he signaled to the convoy to stop shooting with the universal "stop" signal and yelled "please stop" and "we have injured" in Arabic. Then, Monem testified he ran back to the white Kia and attempted to help the passenger exit the car, that he would not have done this had he believed the vehicle was a VBIED, and that he saw no evidence that the vehicle contained a bomb. Monem further testified that the Kia was moving toward the convoy at a very slow rate of speed, slow enough that he could "walk with it." The government used Monem's testimony to ask the jury to find that Paul improperly fired on the car (which the government claimed rolled forward after the first shot instantly killed the driver), that others joined in, and the rest of the Nisur Square incident followed.
The problem, however, with Monem's trial testimony is that it was PERJURED. After the trial, in connection with the sentencing process, Monem voluntarily submitted a "victim impact statement." This statement is entirely inconsistent with his trial testimony in two very important respects. First, Monem's victim impact statement proves that the driver of the white Kia was alive after the shooting started, and therefore completely destroys the government's theory that Nick killed the driver in an unprovoked ambush attack with the first shots fired and likewise destroys any argument that Dustin, Evan, and Paul somehow aided and abetted this alleged crime. Specifically, Monem describes, in vivid detail, the Kia's driver being alive after the shooting started and talking with the passenger (who we later learned was his mother) about whether they should flee the car:
"I saw many things on that day. I saw a mother crying for her son, who was a doctor and she had a feeling that he would be killed. She was unable to move, and her son was trying to get her out of that damned car . . . The mother cried and hugged her son as she was telling him, ‘don’t go, don’t go, we will be killed.’ The son was telling her ‘get out of the car, we’ll be killed’, she was hugging him and begging him not to go. . . I still hear that wom[a]n and her son’s voices until now."
Second, Monem's victim impact statement proves that he hid in his police booth the entire time. He did not see the windshield or the driver's head. He did not attempt to render aid. He did not observe the Kia's rate of speed. He did not see whether the Kia contained a bomb or not. He did not signal to the convoy to stop or attempt to advise the convoy that the Kia was not a threat. HE HID, frozen in his police booth as he listened to the Kia's driver and passenger debating what they should do after the shooting began:
"I feel guilty for not being able to help the doctor and his poor mother in the incident, I could not do anything. . . . I was afraid and stayed in my police booth, I was unable to move or think. . . . [H]er son was trying to get her out of that damned car, but I was unable to move and help him. So I gave up and just watched. . . . I am watching the scene without doing anything. I just hid in that booth . . . . They died because of me, because I did not help them. But I could not help them, because I was unable to move . . . ."
If a key witness perjuring his testimony were not bad enough, what is worse is that the government should have known Monem was lying and therefore should not have presented him as witness in the first place, let alone based its entire theory of the case on his testimony. The following are just some of the red flags that should have alerted the government to the fact Monem was lying:
1. The first statement Monem provided to the Iraqi National Police (INP) was copied, in large part word-for-word, from a statement by another Iraqi police officer who had already provided his statement.
2. Beyond the obvious fact that Monem's statement to the INP was not truly his own, the government learned prior to trial that the INP--led by Colonel Faris Karim--attempted to coordinate the stories of the Iraqi witnesses, but it failed to investigate the issue. One witness told the FBI that "if Faris [Karim] told the witnesses to go left they would go left, and if he told them to go right they would go right."
3. Less than a week after giving his statement to the INP, Monem granted an interview to a German reporter and told him, "The driver of a white car was anxious to drive off[.] I signaled to him to drive, since the distance to the convoy was around 60 meters, far enough to get traffic rolling again."
4. A short time later, Monem was interviewed by CNN, and the reporter paraphrased Monem as saying that "the guards fired five or six shots in an apparent attempt to scare people away, but one of the rounds struck a car and killed a young man."
5. Monem then repeated the same description he gave CNN, classifying the initial shots as warning shots by multiple guards, in a videotaped interview with ABC News.
6. Nearly all the government's other witnesses--both Iraqi and American--saw only one Iraqi traffic police officer approach the white Kia. This person was Ali Ghalaf Salman. Ghalaf testified that he was "100 percent confident" the very first shots fired from the convoy came from an up gunner and that those shots left three to five bullet holes in the Kia's windshield.
Notwithstanding these red flags, there is no evidence that either the FBI or the prosecutors ever questioned Monem about the inconsistent statements he provided to multiple news outlets or that it scrutinized Monem's account of the Nisur Square incident because it was so inconsistent with the accounts provided by other witnesses. To the contrary, as the defense team has stated, "Throughout the trial, the government demonstrated an uncritical willingness to embrace any testimony that supported its theory of the case, even when materials in the government's possession proved that testimony was false."
The defense team filed a motion for new trial because Monem's perjured testimony undermines any confidence in the jury's guilty verdicts. After an unexplained delay of nearly seven months, the trial judge denied the motion the day before Veteran's Day 2015. As defense counsel stated in a news article addressing the judge's failure to grant a new trial, despite the DOJ's use of perjured testimony, "We are disappointed by the court's decision and look forward to pursuing these and other serious issues on appeal."
On appeal, the esteemed non-profit, non-partisan National Association of Criminal Defense Lawyers filed an amicus brief in support of overturning the Raven 23 convictions. In this brief, the NACDL harshly criticized Judge Lamberth's decision to rubber stamp convictions obtained by perjury, stating his handling of the matter "cannot possibly be the proper way for a district court to respond" and leaves "the integrity of the criminal justice system . . . compromised."
Yet, although the D.C. Circuit Court of Appeals reversed Nick's conviction and one of Evan's convictions on other grounds, it found no reversible error in allowing convictions obtained by perjury to stand.