Patterico's Pontifications

2/25/2007

DRJ Pores Through the Border Patrol Trial Transcripts – Lorenzo Yrigoyen (Volume X)

Filed under: Crime,General,Immigration — DRJ @ 11:32 pm

The 11th witness of the trial and Monday’s third witness took the stand just after the lunch recess. Here is the testimony of Lorenzo Lucero Yrigoyen:

From Transcript X:

Witness #11 – Lorenzo Lucero Yrigoyen:

Government direct examination (by Jose Luis Gonzalez):

119 – Yrigoyen has been an agent with the Border Patrol for 16 years. His duties include patrolling the US-Mexico border south of Fabens TX. He has been assigned to Fabens since 2001.

119-120 – While in Fabens, Yrigoyen was initially in a regular unit patrolling in a car or truck. For about 2-1/2 years, he was assigned to a horse patrol unit that patrolled north of I-10 in the desert. He completed horse patrol in late January-early February 2005. He returned to line watch duties for about 8 months, from February through September 2005.

120-121 – There are 2 horse patrols in Fabens. They do not have much interaction with the marked BP units because they are further north. Interaction with units patrolling the river are slim, except at the station level.

121-122 – The agents meet every morning at the station for muster (morning briefing) and then for processing.

122-123 – Yrigoyen knows Ramos and Compean as fellow agents at the Fabens station. He identified them in the courtroom. They did not gather socially but Yrigoyen knows both of them well from work. Yrigoyen does not socialize with any BP agents.

123-124 – Yrigoyen received training from Ramos in the use of firearms and the side handle baton, also known as the asp. They teach defensive techniques and work on keeping proficiency up with the asp.

124-125 – Yrigoyen heard a radio call from Compean on February 17, 2005, around 1:11 PM. Compean said he saw a van leave the river heading north. At the time, Yrigoyen was east of the Fabens port-of-entry. Using GOV EXH 27, Yrigoyen located his position 1-2 miles east of the port-of-entry.

125-126 – Yrigoyen was riding with Rene Mendez, a trainee/probationary employee who had recently graduated from the BP academy and was assigned to the Fabens station. Yrigoyen was Mendez’s field training officer for the day, helping him become familiar with the area and with “service policy, station policy, procedures.”

126-127 – Yrigoyen and Mendez were riding in a BP drop-in unit — a pickup truck with a holding area in the back made to transport people. Yrigoyen identified his unit in GOV EXHS 9 and 15 as the vehicle adjacent to Compean’s unit.

127-128 – Yrigoyen and Mendez heard Compean put out the initial call. Several agents answered they were either already in the area or were headed that way to locate the van. Yrigoyen decided to hold his position after he heard Ramos radio that he had located the van and it was southbound towards Mexico. Upon hearing that, Yrigoyen decided to head to the area. It took a few minutes because his unit was high-profile (due to lights, antennas, 4-wheel drive) and he had to drive off the levee road onto the vega to go under the port-of-entry bridge.

128-130 – When Yrigoyen arrived at the scene, Ramos and Compean were standing toward the front of Compean’s vehicle. Yrigoyen identified the location of Compean’s unit on GOV EXH 11. Yrigoyen’s vehicle was further north, closer to the ditch.

130-131 – Yrigoyen observed Ramos and Compean standing in the front of Compean’s vehicle on the western side. Yrigoyen identified the location they were standing on GOV EXH 11. They were standing close enough to be talking but Yrigoyen is not sure what they were doing.

131-132 – As he drives up, Yrigoyen is observing the area to make sure it is safe for himself and his trainee. Yrigoyen is primarily looking south, because that’s where he would expect he might have a problem. When he’s on the levee road, Yrigoyen’s high-profile vehicle could be seen “pretty well” from Mexico and could be described as a “sitting duck.”

132-133 – As he got out of his vehicle, Yrigoyen looked around for threats and to be sure the area was secured. He was concerned for himself, his trainee, and for his fellow officer Compean, especially because he was in a [highly visible] high-profile vehicle and because he wanted “to go home at the end of the day.” It was a clear area. Yrigoyen didn’t see any danger to the south and there were several BP units to the north.

133 – Yrigoyen viewed GOV EXHS 9, 10, 12 and 15. He does not recall whether this incident occurred on a gray, overcast day, but it would be unusual because the area doesn’t get much rain.

134-136 – Yrigoyen saw Ramos and Compean and did not notice anything out of the ordinary. Eventually, trainee Mendez pointed out to Yrigoyen an individual moving southbound a couple of agricultural fields to the south. Yrigoyen identified GOV EXH 28 as a photo of the area where he first saw the individual in a center section above the Rio Grande, near the levee on the Mexican side.

136-138 – Yrigoyen observed the individual moving southbound. He wasn’t walking or running. He was moving at a decent pace through what looked like a cultivated or plowed field. Yrigoyen did not believe the individual was limping. He thought he was walking through an uneven field but it was also consistent with the walk of a person who had been shot in the lower body. [The Court overruled defense counsel’s objection to this question as speculative, but the government offered to rephrase and the Court concurred. The government moved on to another line of questioning after 2 subsequent attempts were ruled objectionable.]

138-139 – Yrigoyen believes Compean saw the individual that he and Mendez had seen, but Yrigoyen wasn’t 100% sure. Ramos had already returned to the north side of the irrigation canal. Compean doesn’t say anything about the individual/driver at that time.

139 – A white car pulled up on the roadway south of the field where Yrigoyen saw the individual. An individual in the car got out, walked northbound to the individual in the field, and appeared to assist him in returning to the car. Yrigoyen thought the individual from the car grabbed or was assisting him in some manner. Compean was still present when this happened.

139-140 – Eventually a blue van pulled up on the Mexican roadway and the 2 individuals got inside and the van went westbound out of view.

140 – At the same time, the agents on the north side of the irrigation canal are “taking care of” things.

140-142 – Field Operations Supervisor Richards yelled across the canal asking if there had been an assault. Yrigoyen responded he wasn’t sure and that Richards would have to ask Compean. Yrigoyen was taken aback, because any assault he had seen had been reported to management and proper channels. Yrigoyen thought that maybe an assault had occurred because, once Richards asked that, Yrigoyen asked Compean if something had taken place:

“A. I remember I turned around, and I asked Mr. Compean – I kind of was — like I said, I wasn’t really sure. And he asked — I asked Mr. Compean, An assault? I didn’t think you could have an assault without an assailant in custody.
Q. What did he say?
A. That’s when he told me that I — when the individual was running southbound across the levee, and he attempted to apprehend the individual, and with their momentum, they both tumbled down the south side of the levee into the vega area.”

142 – Yrigoyen identified the location on GOV EXH 28 where Compean and the driver struggled as the south bank of the levee road.

142-143 – Compean told Yrigoyen that he made an attempt to grab the driver as he was running south past Compean:

“A. That in — well, in an attempt to apprehend the individual, as he ran — was running south past Mr. Compean, he made an attempt to grab onto him.
Q. Who made an attempt to grab onto him?
A. Mr. Compean. And, with the momentum, with — I guess he did grab him. With the momentum, they both tumbled down the side of the levee road, down into the vega area, where the individual threw dirt in his face, and was able to break free, and ran back into Mexico.
Q. When you heard that, did that alarm you?
A. Yes, it did.
Q. So what did you do?
A. I made sure — I asked Mr. Compean, and made sure he was okay.
Q. Okay. And did Agent Compean, at any time on February 17th, 2005, indicate to you that the driver of that van had a gun on him?
A. No, sir.
Q. Or that he had seen something in his hand, a shiny object, that looked like a gun?
A. No, sir.
Q. Never?
A. No, sir.”

143-144 – After his conversation with Compean, Yrigoyen told Richards that Compean had dirt thrown in his face. Yrigoyen thought that any report or documentation of an assault was between Compean and Richards.

Ramos cross-examination (by Stephen G. Peters):

144 – Yrigoyen doesn’t know how long it was between the time the driver jumped out of the van and ran south and Yrigoyen arrived at the scene. Maybe just a few minutes.

144-146 – Referring to GOV EXH 32, Yrigoyen agreed “the levee road on the Mexican side of the river is approximately the same distance from the river as the levee road on the American side of the river.” Yrigoyen also confirmed the government’s diagram that the approximate distance from the levee road to the river on the American side is 230 feet. Yrigoyen thought the river might be 20-30 yards (70-90 feet) wide. The approximate distance from the river to the levee road on the Mexican side is another 230 feet. Yrigoyen agree that when he saw the individual on the Mexican levee road, he had traveled at least 600 feet. For Yrigoyen to see the individual, he had to “break north” of where Yrigoyen’s vision was impaired by the south levee.

146 – Yrigoyen never spoke to Ramos because Ramos was already crossing over to the north side as Yrigoyen was exiting his vehicle.

147 – Yrigoyen thinks he would notice something unusual laying around, because he would be concerned about officer safety. He thinks he would notice a person laying on the bank of the river.

148-149 – Yrigoyen told Richards that the driver threw dirt in Compean’s eyes. As Yrigoyen said in his statement, he thinks that would be assault. There are forms to fill out when an assault occurs. One of those forms is a SIR – Significant Incident Report. If an agent reports being assaulted, Yrigoyen believes the supervisor should fill out a SIR. Yrigoyen is not a supervisor and is not sure what [a supervisor’s] responsibility would be, but that is his understanding.

149-150 – Yrigoyen did not believe the individual crossing the field was injured and that thought never occurred to him. Yrigoyen thought the individual was crossing a cultivated field, and it’s not easy to walk in a plowed field.

150-151 – Yrigoyen believes that a BP officer has a right to defend himself if he’s attacked. Yrigoyen has been assaulted but never with a firearm. Yrigoyen’s understanding is that an officer can use his firearm – deadly force – as a “last resort” when he is “in fear for his life or the life of an innocent third party”:

“Q. … And does the officer — does the — whether or not the officer was justified in using that force, is that determined after the fact, in hindsight, or is that determined by what the officer reasonably perceives at the time he makes that decision?
A. It is supposed to be what the officer perceives at the time.”

151-152 – [The Court sustained the government’s objections to defense counsel’s 2 questions regarding how the agent’s decision to use deadly force is evaluated.]

152-153 – Yrigoyen is familiar with and has been trained in the BP’s use of deadly force guidelines. Yrigoyen agreed that the following are accurate statements regarding the use of deadly force, although he doesn’t know if that’s the policy:

“The use of deadly force may be used — is justified when the officer reasonably believes that the person at whom the firearm is to be discharged possesses the means, the intent, and the opportunity of causing death or grievous bodily harm upon the officer or another person.”

“An officer can use deadly force when he has probable cause to believe that the person against whom the force is directed has the means, the intent, and the opportunity to cause death or grievous bodily harm upon the agent or third person.”

“Facts and circumstances, including the reasonable inferences drawn therefrom known to the officer at the time of the use of deadly force that would cause a reasonable officer to conclude that the point at issue is probably true. The reasonableness of a belief or a decision must be viewed from the perspective of the officer on the scene who may often be forced to make split second decisions in circumstances that are tense, unpredictable, and rapidly evolving. Reasonableness is not to be viewed from the calm vantage point of hindsight.”

154 – Yrigoyen agreed that officers get shot.

154 – Yrigoyen returned to horse patrol unit in September 2005.

155 – Since February 2005 to [the date of trial], Yrigoyen was briefed that threats and assaults were made against BP agents. Yrigoyen doesn’t know if they were in retaliation for this incident. Yrigoyen was briefed on threats prior to this incident – threats are not uncommon.

156 – BP agents are all that stands between “us and the rest of the world.”

156 – [Defense counsel offered and the Court admitted without objection GOV EXH 32.]

Compean cross-examination (by Chris Antcliff):

156-157 – Referring to GOV EXH 28, Yrigoyen identified where he first saw the individual “past this first field, into this second” and the location where Yrigoyen’s vehicle was parked. Yrigoyen also identified the location toward the southeast where the 2 individuals got in a blue van. There is a road there but Yrigoyen has not idea what the road is but he can see vehicles traveling on it.

157-158 – Yrigoyen gave a statement on March 29, 2005, about the events of February 17, 2005. Yrigoyen spoke to a lawyer before he gave the statement. Yrigoyen did not get a proffer or immunity letter before his interview.

158 – Yrigoyen was not placed on administrative duty because of this incident and he doesn’t believe he did anything wrong on February 17, 2005.

158-159 – Ramos was a training officer for Fabens and everyone had training from him, including Yrigoyen. Compean is a training officer for trainees and Yrigoyen does not recall getting any training from him.

159-160 – A field training officer is different than an instructor. It’s not a matter of seniority. Ramos has had specialized training to be an instructor. Yrigoyen has had instructor training, too. A field training officer is any agent who has training to fill out the necessary documents. An instructor is trained to instruct and teach and keep certifications up to par.

161-162 – A BP agent’s responsibility is to apprehend illegal aliens entering the US, and the BP is the primary agency charged with indicting drugs. Drugs are not the BP’s primary responsibility but they turn it over to the DEA if they come across it. Yrigoyen has heard the term “push back.” He calls it to deter. The BP deters aliens from crossing. To deter can mean to sit on the levee where people can see you and won’t come across.

162 – The BP gets calls about suspected drug vehicles moving around the border. Agents get interested in this and things happen pretty quickly.

162-163 – Because of the distance and because there were other agents responding, Yrigoyen did not respond at first to the radio call on February 17, 2005. An agent has a responsibility to monitor radio traffic to see if he’s needed and to know what’s going on. Yrigoyen eventually decided to respond. Yrigoyen went westbound on the levee road to Compean’s vehicle. Yrigoyen saw the van on the north side of the levee and a number of BP vehicles. He did not see anyone with weapons drawn on either side of the ditch.

163-164 – As Yrigoyen drove up, he, Mendez, Ramos and Compean were on the south side of the ditch. Ramos left to go to the north side as Yrigoyen drove up, and Yrigoyen did not speak to Ramos.

164-165 – Yrigoyen isn’t sure who was on the south side of the ditch. He remembers Vasquez, Arnold and Richards. Yrigoyen now knows who was there but he doesn’t have any recollection of it at the time.

165-166 – Yrigoyen did not perceive any threats to himself or his trainee at the scene. He did not hear any gunshots. Hearing gunshots would have been important to him. Yrigoyen has heard gunshots in the Fabens area.

166 – Neither Yrigoyen nor his trainee (to his knowledge) drew their weapons that day.

166 – Yrigoyen didn’t notice anything unusual about the individual that got in the blue van.

166-167 – Yrigoyen wasn’t expecting questions about an assault when Richards yelled across at him that day. Yrigoyen noticed that Compean had dirt on him and Yrigoyen also asked Compean about a cut on his hand. He doesn’t recall if Compean knew about the cut or not. However, Yrigoyen acknowledged that it would be accurate if his statement said he pointed out Compean’s cut and Compean seemed surprised.

Government redirect examination (by Jose Luis Gonzalez):

168 – Regarding the use of deadly force, on February 17th neither Compean nor Ramos communicated to Yrigoyen or anyone within his earshot that they were in fear of imminent danger of death or serious bodily injury.”

168-169 – Yrigoyen’s training tells him to let as many people as possible know if there is a weapon involved because it’s an issue of officer safety. If other officers are responding to your area and you are bringing them into a situation, that’s information you should relay to them for their safety.

169-171 – No one ever said there was someone out there with a gun. Yrigoyen is trained to take cover when someone has a weapon. If there is a threat, he would have taken cover behind his vehicle on the levee, or he would have driven away, or gone down in the irrigation canal to avoid. He would not have gone into the vega because there are too many unknowns and you are in harm’s way. For safety reasons, Yrigoyen would want to know if someone had a gun by the river.

171-172 – Yrigoyen told Richards about the dirt in the face of Compean. Yrigoyen is not a supervisor and doesn’t know the supervisor’s responsibility if Compean chose not pursue it. [The Court sustained defense objections to a series of government leading questions regarding the US policy on officer assaults.]

172-173 – Yrigoyen hopes that an agent would immediately report a gun to the agents in the area. The agent should also report it to a supervisor and should not wait a month or two to say anything. The agents would also want to know this for the future, because these types of incidents happen pretty often.

173 – [The Court sustained a defense objection to “Would you destroy the crime scene by picking up shell casings?” based on relevance.]

173-174 – Yrigoyen did not request immunity or get immunity before talking to the government. He did request “Calkin rights” (administrative rights – see p. 174 below). Yrigoyen also talked to an attorney when he was first contacted by OIG and before he first gave a statement to C. Sanchez on March 29, 2005. Yrigoyen has not given another statement.

Ramos recross-examination (by Stephen G. Peters):

174-175 – Yrigoyen agreed that a Calkin statement says you have to answer the questions, cannot invoke your immunity into the Fifth Amendment, and your statements cannot be used against you in any criminal prosecution. If you refuse to answer, you can be disciplined administratively, you could be fired, but they can’t use it against you criminally. That’s the agreement Yrigoyen signed.

175-176 – It seemed to Yrigoyen that he had been at the scene for a “long time” before they noticed the individual running south, but the records show it was actually “pretty short.” However, Yrigoyen thinks the individual was already south of the river when he arrived or he would have noticed him.

176 – Yrigoyen isn’t sure that the person he saw running south was the person involved in the altercation [with Compean].

177 – The time to yell “gun” or “cover” is when you see the gun. Even if the individual with the gun has gone, you would still warn others in the area on the radio.

177-178 – The officer should use the totality of circumstances to decide if someone is a threat. Thus, when a person has refused to pull over for flashing BP lights, that would be a factor to decide if an individual was dangerous. If the individual scuffled with an agent and refused to stop, those would be factors. If an officer heard gunfire before encountering a subject, that would be a factor. If an officer learned another officer had fired his weapon, that would be a factor.

Compean recross-examination (by Chris Antcliff):

178-179 – If the individual had brandished a weapon or something that looked like a weapon, that would be a factor.

179 – No one was shooting at Yrigoyen when he arrived at the scene.

179 – Yrigoyen believes that Ramos was the only agent who crossed through the ditch to the south side but he didn’t ask him – it just looked that way.

Government redirect examination (by Jose Luis Gonzalez):

179-180 – Assuming all the factors that defense counsel mentioned, Yrigoyen would still want to know if the individual had a gun, and he would want that information passed along since he was a “sitting duck.” [The Court sustained repeated objections to leading questions.]

181 – No one ever mentioned to Yrigoyen that the fleeing suspect had a gun, a shiny object that looked like a gun, or an object in his hand. If he had known that, Yrigoyen would have notified other people at the scene and on the radio of the possibility that someone in the area had a weapon.

182 – Yrigoyen is not aware that Ramos or Compean told anyone about a gun on February 17, 2005.

Ramos recross-examination (by Stephen G. Peters):

182 – Neither Ramos nor Compean told Yrigoyen that they believed they had hit an alien with a bullet.

Compean recross-examination (by Chris Antcliff):

182-183 – Nobody shot at Yrigoyen on the levee. He doesn’t know if the threat had passed but it seemed it was over by the time he got there.

Government redirect examination (by Jose Luis Gonzalez):

183 – If a person has a gun and is walking away, you do not remain silent. You tell other agents but that did not happen.

183-184 – [Witness excused.]

47 Responses to “DRJ Pores Through the Border Patrol Trial Transcripts – Lorenzo Yrigoyen (Volume X)”

  1. Yrigoyen and his trainee were the only ones other than Ramos/Compean to be south of the levee and in view of the river near the time of the incident (Vasquez later went there to wait for the tow truck). The main things I got from his testimony:

    1) Compean and Ramos were standing together on the levee road when he arrived. It still seems strange that they would just stand there next to each other without talking.

    2) Yrigoyen seemed to feel it was highly irregular for them not to tell him there was someone with a gun in vicinity or that a shooting had just occurred.

    3) Yrigoyen’s testimony about whether or not OAD was limping was fairly inconclusive. This isn’t too surprising, given that OAD would have been at least a quarter of a mile away.

    4) Otherwise, Yrigoyen generally supports the testimony of other witnesses about what happened after he arrived (when Ramos crossed back over the ditch, what Richards asked, where and how OAD was picked up, etc) without any major new revelations that I could see.

    LagunaDave (cb0e49)

  2. 1) Compean and Ramos were standing together on the levee road when he arrived. It still seems strange that they would just stand there next to each other without talking.

    3) Yrigoyen’s testimony about whether or not OAD was limping was fairly inconclusive. This isn’t too surprising, given that OAD would have been at least a quarter of a mile away.

    Comment by LagunaDave

    1> It’s not surprising that they weren’t talking. These people aren’t fools and they’d want to say and hear as little as possible about the incident because they realize that any incident that can go unreported will go unreported.

    They realize how any incident like this would be spun. It should be painfully obvious to everyone how it would be spun now that we’ve seen it with our own eyes.

    The Bush Administration is so hostile towards law enforcement and so protective of Mexico’s criminals that they are willing to lie and say that the agents told them they “wanted to shoot some Mexicans” and they get away with it because they share the same attitude as the Democrats and their media.

    Not to mention the risk to their lives and their family if they report this, as shown by the Davila Hunting Party.

    The smuggler backers still won’t admit that Compean and Ramos would have been targeted for assassination had the incident been reported, despite the direct evidence showing that this would have been the case.

    3> He was able to identify Davila as the person he saw ( 135-5 ) which means he was close enough to know how the guy was moving. A quarter mile is not a huge distance.

    J Curtis (d21251)

  3. I thought Yrigoyen’s testimony was far more effective than the other agents’ testimony up to that point in the trial.

    First, Yrigoyen was a consistent witness who stuck to his story. Second, he was firm in his belief that Ramos and Compean should have radioed about a gun (or possible gun) for the protection of other agents at the scene and in the area. Third, he was able to tell his story without repeated leading questions by the prosecutor. The jury heard his words, not Jose Luis Gonzalez’s words, and as a result the flow of the testimony was probably smoother and more compelling.

    I think the cross-examination by Ramos’ counsel once again hurt their client more than helped him. Some of Yrigoyen’s most harmful testimony came during Ramos’ cross. Counsel floundered in propounding questions at pp 151-152, something that juries notice – especially on cross, because cross is about being in control – and I’m sure the jury was bored when counsel read the deadly force doctrine at pp 153-154. There had to be a better way to get those issues before the jury but counsel had a hard time asking unobjectionable questions to accomplish that (in fairness, I would have a hard time, too, but I’m not a litigator).

    Worse yet, Ramos’ counsel made some good points for the prosecution. For example, instead of getting Yrigoyen to link the Aldrete-Davila incident and threats against BP agents, Yrigoyen testified (at pp 155-156) that threats were common. In addition, Ramos’ counsel revisited the “gun/cover” issue (at pp 176-177), probably in an effort to show that any danger had passed as Aldrete-Davila escaped into Mexico, only to end up reinforcing in the jury’s mind how Ramos and Compean had endangered others.

    Compean’s counsel has much harder facts to deal with but invariably did a better job at disciplining his cross-examination. Thus, overall, Yrigoyen was a good witness for the prosecution and in some ways he was their best witness to date.

    DRJ (605076)

  4. Boy, it stings to see a critique of a comrade. But I think your points are valid.

    Yrigoyen’s been an agent for a long time. Probably not his first time in a courtroom. Experienced witnesses are so much easier in that they know how to answer questions, i.e. to listen and answer responsively.

    He was able to identify Davila as the person he saw ( 135-5 ) which means he was close enough to know how the guy was moving. A quarter mile is not a huge distance.

    I don’t think that states the testimony correctly – that Yrigoyen specifically IDs Aldrete – but I’ll go check again.

    I think it’s more that he and Mendez observe “an individual”. I think it’s weird that Yrigoyen asks Compean about an assault and Compean never acknowledges Aldrete moving away. He never points that direction and says anything like, “That’s the guy knocked me down,” or “That guy getting away pointed a gun at me!” That doesn’t strike me as normal if an assault or the brandishing really occurred.

    Tracy (4b4242)

  5. Tracy,

    I agree that Yrigoyen’s testimony doesn’t ID Aldrete-Davila, just “an individual.” In addition, I don’t think Ramos’ counsel was ineffective or incompetent. My experience is limited to civil trials but I suspect it’s somewhat similar, and I know it’s hard to stop asking questions where you need/want to establish certain facts from a witness. When the witness is clearly better for your opponent, it’s better to resist temptation and get him off the stand as quickly as possible. Judging by the quality of your comments here, however, you already knew that.

    DRJ (8b9d41)

  6. I don’t think that states the testimony correctly – that Yrigoyen specifically IDs Aldrete – but I’ll go check again.

    Comment by Tracy

    2 Q. Okay. I’m going to go ahead and put it on the screen. Why
    3 don’t you go ahead and point out to the jury — did you see
    4 this person?
    5 A. Yes, sir.
    6 Q. Okay. Why don’t you point out to the jury, Agent Yrigoyen,
    7 where you saw this person traveling.

    Who is the “this person” being referred to on line 4?

    J Curtis (d21251)

  7. 6

    “This person” is referring to the individual moving through the fields south of the river who had been pointed out to Yrigoyen by Nunez. This can’t be an ID of OAD because OAD is not in the courtroom at that point and the photograph on the screen is of the fields not OAD.

    James B. Shearer (fc887e)

  8. J Curtis – Look at the previous page to put it in context. The picture they’re looking at is a photo of the area where “this person” was seen. Unfortunate choice of words – but “this person” relates back to the testimony on the previous page which talks about Mendez pointing out someone crossing the field.

    Tracy (4b4242)

  9. Re the ID of “this person”.

    Sometimes questions are not made in an artful or articulate fashion. When they words are read printed on a page, there are often many grammar and syntax errors.

    I think this is one of those instances. I’m sure that in an earlier question “this person” was a reference to the person moving through the fields south of the river, and the questioner continued to use “this person” as an identifier for OAD without a positive identification of OAD as the person moving through the fields.

    wls (077d0d)

  10. J Curtis – Look at the previous page to put it in context. The picture they’re looking at is a photo of the area where “this person” was seen.

    Unfortunate choice of words – but “this person” relates back to the testimony on the previous page which talks about Mendez pointing out someone crossing the field.

    Comment by Tracy

    I suppose so.

    J Curtis (d21251)

  11. Richards is up next. That’s gonna be interesting around here, I bet…

    Tracy (4b4242)

  12. I skipped ahead and read the closings.

    This case was easy.

    From the description of some of the cross-exam answers of the defendants, this was the equivalent of shooting fish in a barrel.

    The testimony of Ramos and Compean was inconsistent with each other.

    The question the prosecutor kept coming back to was, “If you’ve got 700 lbs of marijuana in a van, and the driver points a gun at you as he tries to run for the border causing you to shoot, why don’t you write it in a report as required by the BP policy which requires ANY discharge of a firearm to be reported within 1 hour of the incident?”

    If they had told the same BS story immediately after the incident, combining the dope seizure with their story that OAD pointed a gun at them causing them to fire, the shooting would have been rubber-stamped as justified, case closed.

    WLS (8f66e5)

  13. If they had told the same BS story immediately after the incident, combining the dope seizure with their story that OAD pointed a gun at them causing them to fire, the shooting would have been rubber-stamped as justified, case closed.

    Comment by WLS

    If they would have reported it, gun or no gun, it still would have been their word against the smuggler’s word in front of a jury composed from a citizenry that is hostile towards border agents and, as James B. Shearer even admitted, no bias against drug smugglers.

    The Bush Team would have still been arguing that drug smugglers don’t carry weapons and the defendants would have had an even more difficult time explaining how an armed smuggler who was shooting at the agents out in a wide open space was able to escape without many more bullets in him. Ramos would have to explain why he only shot one bullet and Compean would have to explain how he missed with all his. The government would claim the agents weren’t trying to kill Davila but only maim him. The defendants weren’t convicted of attempted murder as it is so the sentences would have been about the same except for an extra charge of filing a false report.

    And, once again, the defendants would have been murdered had they reported it because R.Sanchez would have relayed the names from the report to Davila and the hunting party would not have been called off for lack of a name. This is shown conclusively from the evidence.

    J Curtis (d21251)

  14. […] He has graciously accepted my invitation to blog about the Ramos Compean case as he is also going through the transcripts. I believe that his experience will add a dimension that not even the really good attorneys and others commenting at Patterico can possibly contribute. We are lawyers looking at words on the page to see if the prosecution made a case. Michael has been out in the field and can add context to the words. […]

    Sue Bob’s Diary » Michael Hunter To Blog at Sue Bob’s Diary (1b383c)

  15. 13

    I admitted no such thing. I expect there is less bias against people like OAD in El Paso than most places in America. That is not the same things as no bias.

    James B. Shearer (fc887e)

  16. 15

    We were discussing the relative bias of a jury pool.

    Are you saying now that the El Pasoans are biased in favor of border agents?

    J Curtis (d21251)

  17. My friend in the El Paso DA’s office says that Border Patrol agents are not well liked in El Paso. Also, he started in on me about questioning this case with a litany of criticisms about BP agents. They beat their wives, they are not well educated, they are trashier than other LEO–things like that. I was a little taken aback by his diatribe.

    He’s definitely on Sutton’s side in the case.

    Jerri Lynn Ward (d7ff57)

  18. 16

    I expect all other things being equal an average El Paso jury would favor American border patrol agents over Mexican drug smugglers. All other things were not equal in this case.

    James B. Shearer (fc887e)

  19. J. Curtis

    If they had immediately reported that the driver had pointed a gun at them while running, thereby causing them to shoot, their story about whether he had a gun or shiny object in his hand would have NEVER BEEN QUESTIONED.

    Their FAILURE to even report the discharge of their firearm, given all the surrounding circumstances, is what gives away their lie.

    There was NO REASON to not report — unless they knew that their shooting was “out of policy.”

    Now, lets do something that you have been unwilling to do — lets suppose that OAD’s description of the events while being shot is accurate.

    He testified that he was knocked to the ground by the shot from Ramos. He said that as he lay there, he looked back at Ramos and Compean, expecting that they would come for him and arrest him. Instead, he said they walked towards him, saw he was shot, holstered the weapons and walked back towards the levy.

    Assuming that’s true, why would they do that? Didn’t Compean want to arrest the guy when he took off chasing him? Wasn’t Ramos convinced from his experience that the van he was following was a drug load? Why not arrest the driver once he was on the ground?

    Because if they had, the fact that he was hit by Ramos would have led to full scale SET (Sector Evidence Team) investigation — and Ramos was a member of the SET so he knew they would find where OAD had gone down and search the surrounding area. What would they not find? They would no find a gun, and Ramos knew it.

    So, they leave OAD there and go back with the story that he got away.

    And, answer this question:

    In Compean’s trial testimony he claimed that OAD was able to throw dirt in his face while they were wrestling on the ground.

    Where did this happen? Not in the ditch/levy where Compean fell down after attempting to use the shotgun in some manner.

    No — Compean testified that after he fell down and dropped the shotgun, OAD took off running towards the river/border. Compean got up, gathered himself, and took off after OAD. Compean caught OAD and tackled him, and during this altercation OAD threw dirt in his face, and escaped again.

    So, Compean, older and heavier than the young, think OAD, while wearing a BP uniform and all his gear, manages to get up from having fallen face down on the bank of the levy, chases down OAD from behind when OAD has not fallen and is not encumbered by anything on his clothes.

    Yeah — sure. Older heavier BP agents in full uniform with full equipment run down young skinny kids across an open field all the time.

    wls (077d0d)

  20. wls,

    Why would they have risked another agent at the scene–who heard the shots– seeing the downed man and Ramos and Compean walking back as if nothing happened? That seems like a more immediate risk than explaining their perceptions to SET that they thought they saw a gun.

    Jerri Lynn Ward (d7ff57)

  21. I don’t think it’s really fair to personalize this, i.e. to assume Sutton has some personal animus for the Border Patrol.

    The results of the investigation were given to him by DHS/OIG – and based on that, he would be complicit if he just looked away and did nothing.

    He was doing his job. Nothing more, nothing less.

    Tracy (4b4242)

  22. I expect all other things being equal an average El Paso jury would favor American border patrol agents over Mexican drug smugglers. All other things were not equal in this case.

    Comment by James B. Shearer

    Far, far from equal. The judge and the government struck all anglo names. I bet I could prove it too if I had the list of prospective jurors during the selection process.

    J Curtis (d21251)

  23. 22

    One of the jurors was Stephen Smith. You don’t think that is an anglo name? And considering the accused agents were not anglo I am not convinced anglo jurors would have been all that sympathetic in view of comment 17.

    James B. Shearer (fc887e)

  24. 22

    By all other things being equal I was referring to the other evidence which in this case favored the drug smuggler.

    James B. Shearer (fc887e)

  25. One of the jurors was Stephen Smith. Comment by James B. Shearer

    They ran out of strikes.

    J Curtis (d21251)

  26. Shorter J. Curtis:
    Any evidence against a conspiracy is further proof of the conspiracy.

    Anyway, we have been over this. The population of El Paso county is 78% Latino. So was the jury. The defense had as many strikes as the prosecution.

    LagunaDave (30bd99)

  27. Tracy – Didn’t Sutton go on TV and deliberately mislead everyone by saying that OAD did not get “arrested” for a 2nd drug shipment, when OAD was caught, detained, and let go for the 2nd drug shipment? Sutton deliberately goes on about how if there were any evidence of this 2nd drug shipment, he would prosecute OAD (or something like that). Keeping this 2nd catch from the jury (which happened while OAD was waiting to testify) is absolutely outrageous. The jury was asked to believe OAD’s claim he had no gun and was shot that day.

    Even the President urges those calling for a pardon to look at the evidence actually heard by the jury, and to make your decision based on that. Basically, Bush has no clue (or is claiming he has no clue) over what the outrage is all about. You just have to laugh at that pathetic man.

    It is not necessary to single out and blame jurors for this bogus prosecution.

    Wesson (c20d28)

  28. 27

    Unless OAD was caught with a gun in the other case it has little relevance to this case. In my opinion the outrage has a lot more to do with Bush’s willful failure (in violation of his oath of office) to faithfully enforce our immigration laws than with the particulars of this case. I see no reason for a pardon.

    James B. Shearer (fc887e)

  29. It is not necessary to single out and blame jurors for this bogus prosecution.

    Comment by Wesson

    I just want to hear the Bush Team’s explanation as to why they used all of their strikes to strike the anglo names. An explanation would be demanded if they struck 100% non-whites from a jury pool that had a minority of non-whites to begin with. Unfortunately, we probably won’t ever get the proof because it would require the defense to tell us who they struck also.

    On tht second bust — It is my understanding that the DEA did a “knock and talk” the day after the drop was made. This appears to mean that they refused to bust Davila in the act of committing the crime. Logically, it means they were tailing him or planted a gps receiver on him.

    In other words, Davila probably wasn’t arrested because Sutton refused to allow the bust to go down while the crime was in progress so that he could let his boy slip away. Therefore, Sutton can say Davila wasn’t arrested.

    J Curtis (d21251)

  30. LagunaDave — the defense has more strikes than the prosecution. In this case the defense got 10 while he prosecution got 6.

    The defense strikes are generally exercised jointly — meaning the attorney for each defendant work together in choosing who to strike.

    It appears that Judge Cardone used a “blind strike system” meaning that each side was given a list of 31 potential jurors for the jury itself, and 5 potential alternate jurors.

    Each side then exercised its strikes in writing on the list, without knowing who the other side was striking. None of this is done on the record in open court, the attorneys do it on their own during a recess.

    The court then takes the list of 31 jurors, looks at the 16 strikes excercised by the two sides, and the first 12 jurors on the list that don’t have strikes next to their name become jurors accepted by both sides.

    The government got one strike for alternates, and each defendant got one strike. The judge then accepted the first two jurors on the alternate list that didn’t have strikes.

    The strike list is made part of the record of the trial, but its not read into the transcript, so its IMPOSSIBLE to know which side was responsible for striking particular jurors simply from reading the transcript.

    As for the surnames, here are the last names of the jurors and alternates:

    Smith
    Flores
    Paz
    Torres
    Valtierra
    Acevedo
    Rivera
    Woods
    Soliz
    Flores
    Chavira
    Gourley

    Chavez — Alt
    Almindarez — Alt

    Vol VI has the jury selection proceedings.

    wls (077d0d)

  31. J Curtis —

    Enough cr@p on the jury strikes. Read Volume VI.

    Give the rest of us a cite for your claim that the government struck all the non-anglo names from the jury.

    wls (077d0d)

  32. OAD was caught, detained, and let go for the 2nd drug shipment

    Not even WND says this is true.

    Some DEA agents dropped in on a suspected safe house and the guy who lived there told them that the day before, Aldrete came by and dropped off a load of marijuana. That’s all we know until the next orchestrated leak or government disclosure.

    For now, that’s all there is.

    Tracy (4b4242)

  33. 31

    My contention is that the government used all of their strikes for anglo names. I never contended that they used all of their strikes for non-anglo names.

    J Curtis (d21251)

  34. Fine — my mistake.

    Where’s your cite to show that the gov’t used their strikes for all potential jurors with Anglo names?

    Its not in the transcript since the strikes aren’t recorded there. So, what’s your source? Or don’t you have one, as is the case with so much of the other BS you post here.

    wls (077d0d)

  35. WLS,

    Are you really a prosecutor?

    DRJ (605076)

  36. 30

    Where does it say that the prosecution had 6 strikes? Is it always 6 for the prosecution?

    Did the judge’s system seem completely normal? It seemed a bit convoluted to me but I have no reference.

    Would there ever be a reason for a judge not to use the same system for every trial?

    J Curtis (d21251)

  37. 33

    This seems doubtful as the government tried to get Marcos Vargas (who spent 2 years installing cameras for the border patrol and who he stated he would tend to side with an uniformed officer if something went wrong) struck for cause but the judge refused after the defense objected. Since Vargas wasn’t on the jury it seems likely the government struck him.

    The government struck for cause Leonel Castillo who seemed a bit biased against drug smugglers. On the other hand the defense struck for cause Martha Hood who had formed an opinion that the defendants were guilty. I don’t think ethnic bias had much to do with the convictions.

    James B. Shearer (fc887e)

  38. 36

    According to this federal judges have a lot of discretion when it comes to jury selection. An excerpt:

    “But, as important as the process of jury selection is, there is no uniform system for it in our federal courts. Currently, federal district judges have broad discretion in devising their own personal systems for selecting jurors. As a result, there are virtually as many different ways of selecting jurors in our federal judicial system as there are federal trial judges. With 678 federal district judges nationwide, that makes for a lot of variety in the manner jurors are chosen for trials.”

    James B. Shearer (fc887e)

  39. Did the judge’s system seem completely normal?

    Totally normal. Look up the Federal Rules of Criminal Procedure 24(b)(2).

    Tracy (4b4242)

  40. I’m too tired to do the research, but given that this is a prosecution hang out [that’s interloper sarcasm – I don’t, in fact, know for sure that’s true] maybe someone knows off the top of their heads whether a reverse-Batson objection is allowed. In other words, are proseuctors allowed to object that defense peremptories are based on race? Seems unlikely, but I’ve been [very frankly] caught flat-footed before when, e.g. DAs do crazy things like refuse to waive time and then come up with some statute or case that allows that.

    Tracy (4b4242)

  41. WLS,

    Are you really a prosecutor?

    Oh, oh, oh! Call on me!

    Tracy (4b4242)

  42. The system used by Judge Cardone is one that is currently in vogue with newly appointed District Judges. One in my district — my former boss — has decided to use it even though no other judge ever used it when he was a prosecutor. I think its called the “Modified Arizona Blind Strike System” since it was designed by an Arizona state court judge.

    Older judges sometimes simply have 32 potential jurors who are passed for cause, and then have the sides alternate standing and announcing which jurors they want to dismiss with their pre-empts. That can be a little disconcerting because the other jurors know which side took off which jurors.

    The system that many federal judges started using about 15 years was similar to the one used here, but it wasn’t “blind”. The way it works is that a list of 32 potential jurors who are passed for cause is created. The prosecutor then strikes one, and passes the list to the defense, who can see who the prosecutor struck. The defense then strikes 2, and passes the list back. This continues with the prosecutor striking one and the defense striking two a couple more rounds. Then they strike one each, or pass, until each side runs out of pre-empts (6 and 10 in favor of defendant is standard). Once both sides have exhausted their pre-empts — 16 jurors struck — the remaining 12 are the jury.

    The benefit of this system is you know who the other side struck, and you know which juror next in line is going to come onto the panel if you strike someone. When you begin striking, the first 12 listed are the “jury”. When one of the first 12 is struck, No. 13 comes onto the jury. When another of the first 12 is struck, No. 14 comes onto the jury, and so forth until all the strikes are used.

    The system used by Judge Cardone and my former boss has each side strike jurors on separate lists without knowing who the other side is striking, and therefore not being sure who the final 12 jurors will be until both lists are reconciled by the court after both sides are done.

    And, yes DJR, I am a federal prosecutor. I spent 11 years in one of the California districts where I didn’t most large-scale drug trafficking cases — generally meth mfgr and trafficking — and 4 years ago I moved to another office where I now do mostly white collar crime and civil rights cases.

    WLS (8f66e5)

  43. Good People

    I googled and found this

    Publication Information: Article Title: The Current State of the Peremptory Challenge. Contributors: Coburn R. Beck – author. Journal Title: William and Mary Law Review. Volume: 39. Issue: 3. Publication Year: 1998. Page Number: 961-1001. COPYRIGHT 1998 College of William and Mary, Marshall Wythe School of Law; COPYRIGHT 2002 Gale Group

    http://www.questia.com/PM.qst?a=o&d=5001336963

    The federal courts limit a litigant to three peremptory challenges in civil cases,(26) while allowing the government six peremptory challenges and the defendant ten peremptory challenges in felony cases.

    I also found no exceptions in a supreme court case as well:

    http://www.law.cornell.edu/supct/html/98-1255.ZS.html

    As the Federal Rules of Criminal Procedure instruct, the District Court allotted them 10 peremptory challenges exercisable jointly in the selection of 12 jurors, Rule 24(b)

    Hope this clears up the question

    EricPWJohnson (405d78)

  44. I apologize for the delay in posting the next section. Sometimes life interrupts my blogging time and this has been one of those times.

    DRJ (605076)

  45. I meant not for you commentators here but for all the tinfoilies out there….

    and you know what I mean :)

    EricPWJohnson (405d78)

  46. DRJ

    POST POST POST POST!!!!!

    Or has the MAN gotten to you its okay if he has press the space key three times after the first word in the second sentence of your next post….

    then we will know….

    EricPWJohnson (405d78)

  47. […] Border Patrol Trial Transcripts – Lorenzo Yrigoyen (Volume X) More in this ongoing series. h/t DRJ – Patterico […]

    Headline Summaries: Border Security at Traction Control (9f9139)


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