Appeal for the Truth: An In-Depth Look at the Overlooked Issues of the Raven 23 Appeal
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Pictured above (T-B, L-R): Paul Slough, Evan Liberty, Dustin Heard, and Nick Slatten. Four decorated veterans sentenced to 30 years to life in federal prison for defensive actions in war-torn Iraq.
Arising from a case unprecedented in American jurisprudence involving State Department contractors accused of committing crimes in a foreign country during a war-zone engagement when faced with a car bomb threat and incoming fire, it’s no surprise that the Raven 23 appeal is complex. Thousands of miles and nearly seven years removed from Baghdad’s Nisur Square, the trial itself lasted three months. The Washington, D.C., civilian jury took almost that long to reach a partial verdict, convicting on some—but not all—counts in October 2014.
Then, in 2015, during the sentencing process, a pivotal government witness changed his testimony, all on his own, without any prompting by the defense. This new evidence destroyed the theory that the government had relied on to urge the jury to convict, namely that four highly trained, decorated veterans simultaneously transformed into callous murderers and recklessly shot into a crowd of unarmed civilians without provocation. While the National Association of Criminal Defense Lawyers (a nonpartisan, non-paid group of some of the most renowned criminal lawyers in the United States) says this sea change in the evidence should have resulted in a new trial, it only caused additional delay: the defense team’s motion for a new trial languished on the trial judge’s desk for 6 months.
As the result of either a striking coincidence or strategic vindictiveness, the day before Veteran’s Day 2015, Dustin Heard, Evan Liberty, Nick Slatten, and Paul Slough—all decorated veterans who had served combat tours and/or deployments to some of the most dangerous regions in the world—learned they would not receive the new trial a key witness’s perjury should have guaranteed. What this really meant: they would begin a lengthy appellate process that would require them to spend a second holiday season behind bars, an appeal that—if lost—could result in them spending most (or, in Nick’s case, all) of their remaining holidays the same way . . . all without a jury ever hearing the truth about what happened in Nisur Square.
Yet, despite their circumstances, heading into 2016, these men were hopeful the New Year would bring with it the restoration of their families. With briefing in the Raven 23 appeal complete in June 2016 and the National Association of Criminal Defense Lawyers filing an amicus brief that argued the Raven 23 convictions should be overturned, it looked like 2016 would mean freedom for the men of Raven 23. It will not.
In the fall of 2016, Dustin, Evan, Nick, and Paul learned that the oral arguments in their appeal would not be held until January 17, 2017. Though this date is much later than expected, these men and their families continue to keep the faith that, eventually, the truth will set them free. And, it is this thing, the truth—a concept so integral to our justice system that every witness must swear to tell it, in its entirety, and without embellishment—that is being lost in the reporting about their appeal.
So far, the limited reporting about the Raven 23 appeal has not been about decorated veterans fighting for true justice. Rather, articles about the appeal tend to focus on the argument that the United States lacks jurisdiction to prosecute these men under the Military Extraterritorial Jurisdiction Act and, therefore, the Raven 23 prosecution was illegal and never should have happened. To those familiar with the actual facts of the Raven 23 case (including facts that were kept from the jury), articles like these are often thinly veiled attempts to convey the take-away message that the Raven 23 appeal is the same old song and dance of guilty defendants trying to get off on a technicality. It is anything but that.
To be sure, the argument that the Raven 23 trial never should have happened or, failing that, happened in the wrong venue, is important to the Raven 23 appeal. Further, the importance our American way of life places on the rule of law makes illegal prosecutions in manufactured venues anything but technicalities. However, at least so far, these complex legal issues have eclipsed the compelling story lying underneath, the story you would want someone to tell if Dustin, Evan, Nick, or Paul were your loved one: the truth about what happened in Nisur Square.
In fairness, the truth cannot be told without acknowledging the tragedy that innocent people died. Just as tragic, however, is that four innocent men—men who dedicated their entire adult lives to serving this country—saw their own government turn against them, not because the truth justified it, but because political appeasement required it. Rather than simply punish the one member of Raven 23 who (by his own admission) panicked during the engagement and indiscriminately sprayed the crowd with bullets, the DOJ relied on the Iraqi government’s investigation to concoct a story that would tear four innocent families apart—a story that is, in the simplest of terms, a farce.
To the men of Raven 23 and their families, the Raven 23 appeal is a fight to shed light on the false justice of Dustin, Evan, Nick, and Paul’s convictions. Specifically, in their pending appeal, in addition to arguing their prosecution was illegal and held in the wrong venue, all four men of Raven 23 seek to expose that their convictions were secured by perjury. In addition, Nick Slatten seeks to expose how the government pursued what the National Association of Criminal Defense Lawyers has called a “textbook” case of vindictive prosecution against him despite having—and hiding from his jury—proof that Nick is innocent and failing to introduce any evidence that is legally sufficient to support Nick’s conviction. Similar to Nick, Evan Liberty seeks to show that the evidence the government introduced against him is legally insufficient to prove he committed any crime. Finally, Dustin, Evan, and Paul are fighting to expose that the United States government punished their service to this country through the unconscionable and unconstitutional misapplication of a federal weapons law—an argument their Congressmen have supported by introducing legislation to prevent any similar abuse of the law in a future case. In short, these decorated veterans seek to expose the truth about the total failure of justice that occurred in their case, and it is this truth that should set them free.
Innocent Men Convicted by Perjury
The government built its unprovoked massacre theory of the case around the testimony of an Iraqi police officer, Monem. At trial, Monem testified that the driver of a white Kia (the person Nick is accused of murdering) was killed by the first shots of the engagement (although Monem testified that he was certain those shots came from the turrets, which was NOT Nick's position). Then, Monem testified that he approached the Kia as it was rolling slowly toward the convoy and saw that the driver was dead. At that point, Monem told the jury he ran in front of Raven 23's convoy, held up his hands and yelled for Raven 23 to stop firing, then ran back to the Kia and walked slowly alongside it, trying to extract the passenger. Relying on Monem's testimony, the government argued that the driver's death was an unprovoked ambush and that the Kia was never a threat to the convoy. Given its verdict, the civilian jury apparently accepted the government’s theory of the case despite overwhelming evidence to the contrary—including testimony from every member of Raven 23 the government itself called to testify (some of whom also used force on the Kia but were not charged).
But, following the convictions, Monem told an entirely different story. In connection with the sentencing process, Monem voluntarily submitted a victim impact statement that simply cannot be squared with his trial testimony in two key respects. First, in his victim impact statement, Monem puts the Kia's driver alive after the shooting started, trying to help the passenger get out of the car, while they screamed and held one another, fearing for their lives. Key to Nick Slatten’s case, this new evidence destroys the government's theory that the driver was murdered in an unprovoked attack with the first shots fired. Nick argues that Monem’s eyewitness account of the driver being alive after the first shots were fired is additional exculpatory evidence that he is constitutionally entitled to present to his jury. Second, and key to Dustin, Evan, and Paul’s case, Monem's victim impact statement puts him cowering in his police booth, frozen with fear, and unable to move. Hiding in his police booth the entire time, Monem could not have been in the street warning Raven 23 that the Kia was not a threat or trying to help the passenger get out of the vehicle. Monem’s inability to be in two places at once is key for these three men because the government used Monem’s testimony to ask the jury to conclude that shots fired by Raven 23 after Monem’s “warnings” were reckless.
As the National Association of Criminal Defense Lawyers (NACDL) has explained in its amicus brief, normally, a post-verdict revelation that a key witness perjured his testimony requires remedial action by the trial court. In fact, the defense team requested a new trial or, at the very least, an evidentiary hearing to question Monem about the key changes in his testimony. However, the trial judge, Judge Royce C. Lamberth, denied any relief in an inexplicable ruling that the NACDL has stated “cannot possibly be the proper way [to] respond” and that “leaves the integrity of the criminal justice system . . . compromised.”
In their appeal, Dustin, Evan, and Paul are fighting to expose the truth that they were convicted by perjured testimony, while Nick is fighting to have the key new evidence from Monem’s eyewitness account (i.e., that the driver was alive after the first shots were fired and therefore not killed in a murder-ambush) presented to his jury. Thirty years to life—and the integrity of our justice system—hang in the balance.
As the NACDL’s key support and hard-hitting brief show, all signs point toward a favorable outcome for the men of Raven 23. However, the abysmal reporting about the actual innocence issues raised in the Raven 23 appeal is disconcerting, both in terms of the media’s general disregard for the lives of four decorated veterans and their families and because, however it is ultimately decided, the Raven 23 appeal will set important precedent regarding the constitutional rights of the accused. As bad as the government’s previously unchecked reliance on perjured testimony is, the individual cases of Nick Slatten and Evan Liberty—and their mistreatment at the hands of a vindictive and overreaching DOJ and a trial judge who blatantly refused, on multiple occasions, to follow the law—underscore how crucial it is for the appellate court deciding the Raven 23 appeal to know that millions of concerned Americans are watching to see whether true justice will, again, take a backseat to political appeasement.
An Innocent Man Vindictively Prosecuted for Murder
A decorated combat veteran and former 82nd Airborne sniper, Nick Slatten served two tours in the Iraq War. After his shocking conviction, scores of his fellow soldiers and former teammates wrote testimonials about Nick’s judgment under fire, his selfless desire to protect those around him, and his strength of character. However, at the eleventh hour, backed into a corner of its own making, the government chose to paint Nick as the villain: Nick is the only member of Raven 23 the government charged with murder, and it only added the murder charge ONE MONTH before the 2014 trial.
Why? Because Nick beat the government’s attempt to include him in its manslaughter case against Dustin, Evan, and Paul. From the very beginning, the government acknowledged that it could not prove who shot whom in Nisur Square (after all, none of the recovered bullets or bullet fragments matched any of the defendants’ weapons). Therefore, to avoid having to prove who killed whom, the government claimed that the entire engagement was reckless and anyone who shot was guilty of manslaughter by aiding and abetting the admitted wrongdoer, Jeremy Ridgeway.
But then the government did something else: In 2009, on its own motion, following significant rights violations during the indictment process, the government dropped Nick from the case. When it did so, the government acknowledged that the evidence of any alleged recklessness on Nick’s part was “weak.” Nick was out of the case for years while the government appealed an order dismissing the case against the other men based upon the constitutional rights violations that occurred during the indictment process. In 2013, after winning that appeal—a win that paved the way for the government to bring fresh charges—a new trial team decided to put Nick back in the case and charged him, and the other men, with manslaughter. However, because the five-year statute of limitations for manslaughter had run while Nick was out of the case, Nick fought this time-barred charge all the way to the DC Circuit Court of Appeals, and he won the right not to be prosecuted.
Constitutionally, Nick’s win should have meant that he was a free man. However, the government took a different approach—an unconstitutional one that the National Association of Criminal Defense Lawyers has called a “textbook” case of vindictive prosecution. Rather than accept a very embarrassing defeat (and face the likelihood that Nick would testify in defense of his teammates), the government charged Nick with first-degree premeditated murder—the only charge that does not carry a statute of limitations. Nothing about the evidence had changed between the time the government charged Nick with manslaughter and the time it charged him with murder. Only Nick’s successful assertion of his right not to be prosecuted prompted this vindictive charge and clear-cut violation of his right to due process.
But, as bad as the murder charge is, even worse is that the government charged Nick with murder despite having evidence—from day one—that proves Nick is innocent. What is this evidence? In his shoot report (and other statements during the 2007 investigation immediately following the engagement), one of Nick’s codefendants admitted to shooting the Kia’s driver because the approaching Kia presented a car-bomb threat to the convoy. These statements contain critical information about why the Kia was engaged, steps that were taken to avoid deadly force, and—critical for Nick’s case—the firsthand account of the team member who first shot the driver in self-defense (several other team members—NOT Nick—also fired on the Kia in self-defense when it did not stop).
The problem: These statements by Nick’s codefendant were compelled (under threat of job loss) and therefore not admissible. And, while these statements clearly present a case of self-defense, there is no doubt the government would have used them against this person because, despite contrary testimony from its own witnesses, the government consistently told the jury that the Kia was not a threat.
However, the problem is not without a solution. Legal precedent is well established that Nick has the constitutional right to present this exculpatory evidence to his jury. To do that, however, required that Nick receive a separate trial. Yet, after receiving a harshly-worded remand from the D.C. Circuit requiring him to drop Nick from the manslaughter case and stating on the record that he wasn’t going to try the case twice, when the government chose to proceed with the murder charge against Nick, the trial judge refused to give Nick the separate trial due process requires AND excluded the statements by his codefendant that prove Nick is innocent. Deprived of this crucial evidence of his innocence, Nick’s jury apparently accepted the government’s theory about the engagement. Even though eyewitnesses to the first shots fired by Raven 23 testified that Nick did not fire those shots, in a shocking verdict, the jury convicted Nick of first-degree murder even though the government failed to produce a shred of legally sufficient evidence that proves Nick shot, let alone killed, the Kia’s driver.
Today, Nick sits in a prison cell for the first-degree murder of a man he did not shoot, and the evidence that entirely exonerates him remains hidden, sealed by court order. With his appeal, Nick seeks to expose the truth that he is an innocent man.
An Innocent Man Found Guilty By Association
Like Nick, Evan Liberty, a decorated veteran and former Marine Security Guard, sits in federal prison even though he is innocent and even though the evidence the government presented against him is legally insufficient to put him there.
The government charged Evan, Dustin, and Paul with manslaughter under an aiding and abetting theory and sought to hold them all accountable for Jeremy Ridgeway’s admitted crimes. Specifically, in closing arguments, the government told the jury that aiding and abetting meant that if the jury believed anyone committed a crime in Nisur Square, including someone not on trial—clearly meaning Jeremy Ridgeway—and the defendants participated by firing their weapons, then they, too, were guilty. However, in Evan’s case, the government failed to prove Evan took any action that (even under the government’s incorrect definition) legally constitutes aiding and abetting.
Evan was the driver of the command vehicle—i.e., the vehicle that several eyewitnesses testified was disabled by incoming fire during the engagement and towed from the scene. He was convicted of 8 counts of manslaughter and 12 counts of attempted manslaughter even though the government’s own evidence showed that Evan only fired his weapon in an area where none of the alleged victims were located. There was no evidence that Evan fired in the direction of any of the alleged victims, caused any of their deaths, or intended to commit manslaughter against any of them. There was also no evidence that Evan (or any of the other defendants for that matter) knew in advance that a crime was going to be committed or knew, during the engagement, that admitted wrongdoer Jeremy Ridgeway shot recklessly and unjustifiably into the crowd. Nor was there any evidence that Evan purposely did anything to help Ridgeway commit any crime.
Given the total lack of evidence that Evan did anything that can legally be considered aiding and abetting, he was entitled to a judgment of acquittal. This means that Evan’s case never should have been submitted to the civilian jury whose verdict currently separates him from his family for 30 years and a day. On appeal, Evan seeks to expose that he is an innocent man wrongly found guilty by association.
Thanked for Service With A Prison Cell
