The Illegal Prosecution of Raven 23

Dustin Heard, Evan Liberty, Nick Slatten, and Paul Slough are decorated veterans of the United States Military and former Department of State contractors, and they are currently fighting for their freedom on appeal.  After defending themselves and their team, Raven 23, against incoming fire and a car bomb threat from a white Kia in a war-zone engagement, during which another member of their team tragically used excessive force, these heroes were charged with heinous and untrue crimes following a shoddy investigation by the insurgent-infiltrated Iraqi Police—an "investigation" that our FBI accepted without question.  Then, after more than seven years of having their constitutional rights violated, the unthinkable happened: Dustin, Evan, Nick, and Paul were convicted by a civilian jury, not of their peers, in an improper Washington, D.C., venue far from their homes, and they were sentenced to 30-years to life in prison.  This happened following a sham of a trial that the esteemed National Association of Criminal Defense Lawyers (NACDL) has stated "should have never happened," was fraught with "prosecutorial overreaching and unfairness," leaves "the integrity of the criminal justice system . . . compromised," and includes a murder charge against Nick Slatten for which "a more textbook case of vindictive prosecution can scarcely be imagined." 

Drawing from the men’s appellate briefs, we recently wrote about the constitutional rights violations that resulted in innocent men being convicted of crimes they did not commit.  Today’s article focuses on why the Raven 23 case never should have even seen the light of a courtroom, let alone one in Washington, D.C.

The men of Raven 23 argue that the government lacked jurisdiction to prosecute them under the Military Extraterritorial Jurisdiction Act (MEJA).  NACDL agrees the Raven 23 prosecution “should have never happened.”

To prosecute Dustin, Evan, Nick, and Paul under MEJA for alleged crimes that occurred in Iraq, the government was required to prove that the alleged crimes occurred while these men were employed by the Armed Forces overseas.  Under the plain language of MEJA, non-Department of Defense contractors like Dustin, Evan, Nick, and Paul (who were contractors for the Department of State) are employed by the Armed Forces only to the extent their contract employment relates to supporting the DOD's mission.  The defense team challenges the MEJA-based prosecution on two fronts.  The first is a go-home argument, and the second alternative argument (which will only apply if the first argument is unsuccessful) is a new-trial argument.

MEJA's Plain Language Bars this Prosecution . . . First, the men argue that, based on the plain language of MEJA and the undisputed fact that they were DOS contractors performing under a DOS contract at the time of the engagement, MEJA did not authorize their prosecution.  If they win this argument, the Raven 23 prosecution was illegal, and they all go home.

The Jury Instructions Were Wrong . . . Second, and alternatively, the men argue that even if (somehow) there were fact issues for the jury to decide regarding whether their employment satisfied the requirements for a MEJA-based prosecution, the trial judge's legal instructions to the jury were WRONG.  Rather than simply instruct the jury on what MEJA actually says, Judge Lamberth improperly paraphrased the law to impress upon the jury that all U.S. agencies worked under "one mission" in Iraq, inappropriately erasing any distinction between the very different functions performed by the DOD and the DOS.  In addition, Judge Lamberth also REFUSED to instruct the jury that, under U.S. law, diplomatic security overseas (which is what Dustin, Evan, Nick, and Paul contracted with DOS to provide and were providing at the time of the alleged crimes) is the responsibility of the Department of State.  By his own words, Judge Lamberth refused to tell the jury what the law actually says because if he "believe[d]" the law he "would dismiss the case right now for lack of jurisdiction."  If the appellate court determines MEJA could potentially apply to Dustin, Evan, Nick, and Paul, but that their jury was not properly instructed, they will be entitled to a new trial with a properly instructed jury.

But the government did not stop with illegally prosecuting these decorated veterans.  It also illegally manufactured a Washington, D.C., venue and in doing so ensured a jury pool that was tantamount to a stacked deck in its favor long before the first witness ever took the stand.

Just as the Raven 23 prosecution was illegal, so too was the Washington, D.C., venue.  If a trial had to occur at all, Dustin, Evan, and Paul should have been tried in Utah, and Nick should have been tried in Tennessee.  NACDL agrees that Judge Lamberth's decision to hold the trial in D.C. "contravenes" the law and "subverts" the Constitution. 

As a general rule, the proper venue for a criminal trial is typically the place where the alleged crime is committed.  However, when an alleged crime is committed outside of the territorial jurisdiction of the United States, but prosecuted in the United States under an extraterritorial statute like MEJA, special rules apply.  Under those rules, venue is proper where the defendant is arrested, or where a "joint offender" is "arrested," with both quoted terms having very specific legal meanings.

In the Raven 23 case, to avoid trying Dustin, Evan, and Paul in Utah (where they were arrested) and Nick in Tennessee (where he was arrested), Judge Lamberth accepted the government's argument that these men were "joint offenders" with government cooperator and admitted wrongdoer, Jeremy Ridgeway, whom the government claimed was "arrested" in D.C.  However, as explained in the men’s appellate briefs, there are three key problems with Judge Lamberth's decision to hold a D.C. trial.

The Evidence at Trial Was Legally Insufficient to Establish Ridgeway Was a "Joint Offender" or "Arrested" in DC . . . First, the defense argues that Jeremy Ridgeway does not meet the legal definition of a "joint offender" and that what happened to him does not meet the legal definition of an "arrest."  As a matter of law, "joint offenders" share the same criminal intent and work together to commit a crime (think conspiracy, bank robbers, etc.).  There was absolutely no evidence of any collaborative criminal scheme in the Raven 23 case.  To the contrary, the evidence showed that, while Ridgeway admitted his personal actions were not objectively reasonable under the circumstances, he did not know whether others acted reasonably because he "couldn't see what they were seeing."  There was similarly no evidence that Dustin, Evan, Nick, or Paul knew (during the middle of an engagement when each man had a specific area of responsibility and trusted that any shooting going on in another area was in response to legitimate threats) that Ridgeway shot without justification, or that they purposely tried to help Ridgeway commit crimes.  Further, because venue is "offense-specific," the government had to establish that venue was proper in D.C. based on "joint offender" status for every single charge it brought against Dustin, Evan, Nick, and Paul.  However, there are many examples of how the charges brought against these men are individualized charges that do not overlap with any charge against Ridgeway (e.g., Nick's murder charge and several counts in which Paul was the only person charged).  Individualized charges such as these are completely at odds with "joint offender" status, and that is especially apparent in Nick's case since he is the ONLY person charged with murder, and no one else was charged in connection with the alleged murder victim's death. 

In addition to Ridgeway not meeting the legal definition of a "joint offender," what the government did to him falls woefully short of the legal definition of an "arrest."  To be "arrested," a defendant must be "restrained of his liberty in connection with the offense charged."  As discussed above, Ridgeway's offenses were not "joint" offenses with Dustin, Evan, Nick, and Paul.  So even if Ridgeway had been arrested, the arrest would not have been "in connection with the offense[s] charged" against the other men.  However, Ridgeway was never even arrested.  Instead, Ridgeway flew from his home in California to D.C. of his own free will, voluntarily appeared in Judge Lamberth's courtroom, entered a negotiated plea deal, and then flew back home.  Ridgeway did all of these things without ever having his liberty restrained and therefore was not "arrested."

Because Ridgeway was not a "joint offender" and was not "arrested" and because venue is an element that the prosecution must prove by a preponderance of the evidence (a legal standard), the defense argues that Judge Lamberth should have entered a judgment of acquittal for all four men.  If they win on this argument, they will be set free, and the government will not be permitted to retry them.

At Minimum, the Jury Should Have Decided Disputed Facts Critical to the Venue Issue . . . Second, and alternatively, the defense team argues that even if Dustin, Evan, Nick, and Paul were not entitled to acquittals because the government failed to prove venue was proper in D.C., Judge Lamberth violated the law by deciding that venue existed himself, rather than letting the jury decide the issue.  Originally, Judge Lamberth agreed with the defense lawyers that Dustin, Evan, Nick, and Paul were "entitled to have the jury decide the question" of venue.  However, Judge Lamberth ultimately reversed his own ruling and "decide[d] that venue exists" without allowing the jury to resolve the hotly-contested factual issues of (1) whether Ridgeway engaged in the concerted criminal activity—with every other defendant on every count charged—that is required for "joint offender" status, and (2) whether Ridgeway was "arrested."  If the men prevail on their argument that the jury should have decided these factual issues, then they will be entitled to a new trial, and if the jury in that new trial finds the government failed to prove these key elements of venue, they will be acquitted. 

Allowing the Government to Manufacture Venue Violates Due Process . . . Finally, the defense argues that the government's actions in luring Ridgeway to D.C.—a place to which none of the other men have any ties—for the sole purpose of manufacturing the "arrest" of a "joint offender" violates the due process clause of the U.S. Constitution.  If the men win this argument, their convictions will be overturned.

While convictions (and political appeasement) at any cost has been the guiding principle so far in the Raven 23 case, legal experts like NACDL view the Raven 23 case through a different lens, namely: innocent men + an illegal prosecution in a manufactured venue + numerous constitutional rights violations that led to the unconstitutional convictions and sentences of innocent men = more than enough reasons for the appellate court to Free Raven 23.  Until then, we keep the faith.

#KeepTheFaith

#FreeRaven23