Patterico's Pontifications

7/17/2007

DRJ Analyzes Johnny Sutton’s Fact Sheet in Anticipation of Sutton’s Testimony Today

Filed under: General,Immigration — DRJ @ 5:28 am

[Thanks to DRJ for this typically thorough and enlightening post analyzing Johnny Sutton’s fact sheet on the Ramos/Compean trial in the light of the trial transcript. I have summarized what I think are some of the more significant findings in a post at Hot Air, here. — Patterico]

[posted by DRJ]

Today, the Senate Judiciary Committee has scheduled a hearing to examine the prosecution of Agents Ramos and Compean. Johnny Sutton, the U.S. Attorney for the Western District of Texas whose office prosecuted the Ramos/Compean case, is scheduled to testify at the hearing.

Johnny Sutton has an impressive resume. From 1988 to 1995, he was an Assistant District Attorney in Harris County, Texas, which includes the city of Houston. He worked for George W. Bush during his terms as Texas Governor and as President from 1996-2001. In November 2001, Sutton was appointed as a U.S. Attorney by President Bush, and in 2002 he was appointed by Attorney General Alberto Gonzales to the Attorney General’s Advisory Committee of United States Attorneys. Sutton served as Vice-Chair of the Advisory Committee and was named the Committee’s Chair in March 2006. Sutton also serves on the Advisory Committee’s Border and Immigration Law Enforcement Subcommittee.

I hope Mr. Sutton’s testimony at this hearing helps answer my questions and concerns about the Ramos/Compean trial and verdict. In an effort to clarify my questions and concerns and to facilitate a better understanding of the testimony tendered to the Committee, this post will compare the Ramos/Compean trial transcript with the U.S. Attorney’s most recent press release.

If you are unfamiliar with the Ramos/Compean case or need a refresher on the facts, this February 2007 article by the AP’s Pauline Arrillaga (Washington Post link) contains a concise summary.

The Ramos/Compean jury ultimately had to decide this question: As he ran back toward the border, did Osvaldo Aldrete-Davila point a gun at or make a threatening movement toward Agents Jose Alonso Compean and Ignacio Ramos that caused them to shoot at him? The verdict indicates the jurors believed Aldrete-Davila’s claim that he did not have a gun and did not threaten Ramos or Compean.

The trial transcript tells a compelling story, but it‘s interesting how similar the witnesses’ recollections were of the events of February 17, 2005. The exception was the testimony of Border Patrol Agent Oscar Juarez, whose testimony partially supported Aldrete-Davila’s claim that his shooting was not justified. In several press releases regarding the verdict, the U.S. Attorney focused on Agent Juarez’s testimony to justify the jury’s verdict, so it makes sense to take a closer look at Agent Juarez’s testimony and to compare it with the U.S. Attorney’s press release about this case.

In his most recent press release dated April 25, 2007, the U.S. Attorney for the Western District of Texas offered a “fact sheet” to “identify inaccuracies and provide corrections” regarding the Ramos/Compean trial and verdict. In the same spirit, I offer my comments on some opinions and facts set forth in the press release. The text of the U.S. Attorney’s April 25, 2007, press release is reprinted below, with my questions, concerns, and comments following each passage. Footnotes in the press release have been omitted but are available at the link. I’ve bolded portions of the U.S. Attorney’s responses for emphasis.

Here is the April 25, 2007, press release and my comments:

UNITED STATES ATTORNEY JOHNNY SUTTON SETS THE RECORD STRAIGHT REGARDING THE PROSECUTION OF RAMOS AND COMPEAN

(The page numbers referenced herein are to the transcript available on the website at http://www.usdoj.gov/usao/txw/press_releases/index.html.)

Former Border Patrol Agents Ignacio Ramos and Jose Compean were found guilty by a unanimous jury in a United States District Court after a trial that lasted more than two and a half weeks. The two agents were represented by four experienced and aggressive trial attorneys, all of whom vigorously challenged the Government’s evidence through argument and direct and cross examination.

Both agents told their stories from the witness stand and had full opportunities to explain their version of events and to offer their own evidence. The jury heard all admissible evidence, including the defendants’ claims of self defense, but the jury did not find their stories credible. The case is now on appeal to the U.S. Court of Appeals for the Fifth Circuit, which recently agreed with the District Court that Ramos and Compean should not be released on bond pending appeal.

Unfortunately, some of the media attention and heated debate over the prosecution of this case has been based on, and has led to, many factual inaccuracies and unfounded criticism. The purpose of this fact sheet is to identify some of those inaccuracies and provide corrections with factual information from the public record, to the extent possible given that this case is currently on appeal.

Allegation: THE AGENTS WERE JUST DOING THEIR JOBS AND SHOULD NOT HAVE BEEN PROSECUTED.

Response: Securing our nation’s borders can be a tough and dangerous job. Often, Border Patrol agents find themselves in difficult and dangerous situations. The Border Patrol provides them with guns and the law allows them to defend themselves. The law allows for the use of deadly force when an agent reasonably fears imminent bodily injury or death. But, an agent is not permitted to shoot an unarmed suspect who is running away, regardless of whether the victim is illegally in this country or turns out to be a drug smuggler. In order to maintain the rule of law, federal prosecutors cannot look the other way when law enforcement officers shoot unarmed suspects who are running away, then destroy evidence, engage in a cover-up, and file official reports that are false.

There was no credible evidence that the agents were in a life-threatening situation or that Osvaldo Aldrete Davila, the Mexican alien, had a weapon that would justify the use of deadly force. In fact, Border Patrol Agent Oscar Juarez, who was at the scene, testified at trial that he did not draw his pistol because he did not believe that Aldrete posed a threat to his or Agent Compean’s safety. Vol. VIII, p. 173; Vol. IX, p. 22. He also testified that Aldrete’s hands were empty when Compean attempted to strike Aldrete with the butt of Compean’s shotgun. Vol. VIII, p. 176. By the time Agent Juarez saw Compean shooting, Aldrete was almost in Mexico. Vol. IX, p. 21-22.

The crimes committed by these agents are felonies, not mere administrative oversights. This was not a simple case of discharge of a firearm that was not reported. The truth of this case is that Agents Ramos and Compean intentionally, and with the intent to kill, shot 15 times at an unarmed man who was running away from them and who posed no threat.

Agent Oscar Juarez corroborated parts of Aldrete-Davila’s version of the events of February 17, 2005, but Juarez’s testimony is of questionable reliability. The government’s investigator, Christopher Sanchez, did not believe Juarez’s initial statement, and he later learned that Juarez did not tell the whole truth. (Vol. XII, p. 18) By the time of the trial, Juarez had given 4-5 conflicting interviews and statements about the incident that Sanchez believed were incomplete or false. (Vol. XII, p. 15, 20-21,78-80, 84-88) Juarez’s testimony was so questionable and different from his initial interviews that ultimately he was threatened with indictment by the government. (Vol. XII, pp. 87-88) Thus, it’s interesting that the U.S. Attorney primarily relied on Juarez’s changeable testimony as conclusive proof that supports the verdict.

Portions of Juarez’s testimony were also contradicted by the testimony of other agents. Juarez testified that, as Ramos and Juarez left the town of Fabens following Aldrete-Davila, who was racing back toward the border, Ramos signaled Juarez to turn off his vehicle’s overhead emergency lights. (Vol VIII, pp. 161-162) Juarez also testified that Ramos never turned on his vehicle’s emergency lights. (Vol. VIII, pp. 163-164) Ramos testified that both he and Juarez turned on their emergency lights in order to signal the van driver, Aldrete-Davila, to stop and to warn traffic as they followed Aldrete-Davila. (Vol. XII, p. 171-173) Ramos denied that he signaled Juarez to turn off his emergency lights. (Vol. XII, p. 174) Contradicting Juarez’s testimony, Agent Arturo Vasquez testified that both Ramos’ and Juarez’s Border Patrol vehicles had their emergency lights on when they subsequently passed Vasquez as he waited in his vehicle past the S curve, a mile or two south of Fabens. (Vasquez transcript, pp. 55-56 & 75-76)

Even the government’s investigator, Christopher Sanchez, doubted Juarez’s honesty and trial testimony. Sanchez testified that, despite multiple statements and interviews with Juarez and after hearing his testimony at trial, Sanchez still didn’t believe Juarez had told the complete truth about what happened at the drainage ditch on February 17, 2005. (Vol. XII, p. 88)

The press release highlighted Juarez’s failure to draw his weapon on February 17, 2005, as proof that Aldrete-Davila was not a threat. Juarez testified that he did not feel threatened as Aldrete-Davila ran down into and across the drainage ditch. (Vol. VIII, pp. 172-173) However, the shooting did not begin until Aldrete-Davila had crossed the drainage ditch and both he and Compean had crossed over the levee onto the vega that adjoined the Rio Grande. (Vol. IX, pp. 17-18) In addition, Christopher Sanchez implicitly criticized Juarez’s failure to respond to or help Compean as he faced Aldrete-Davila: Sanchez testified that, if he had been at the scene, he would have gone across the ditch “in a heartbeat” as Ramos did to help Compean. (Vol. XII, p. 115)

The emphasis in the press release on Juarez’s testimony that Aldrete-Davila had nothing in his hands is relevant but not conclusive. The testimony was undisputed that Aldrete-Davila’s hands were empty when he exited the drainage ditch and Compean attempted to block or hit Aldrete-Davila with his shotgun. However, neither Ramos nor Compean fired their weapons until a minute or more later, when they and Aldrete-Davila were on the vega on the other side of the levee. (Vol. VIII, pp. 15-18)

It is undisputed that the incident occurred near the border and was “almost in Mexico.” Aldrete-Davila’s proximity to Mexico does not prove or disprove that he was not a threat, that he did not have a gun, or that Ramos and Compean were not in danger.

Apparently Juarez’s behavior was not consistent with the standards of the Border Patrol, because it has been reported that Juarez was the only agent who voluntarily resigned after the trial in lieu of termination from the Border Patrol. (Reported in the El Paso Times but the fee-based link has been archived. A similar report can be found here.)

Allegation: THE GOVERNMENT LET THE DRUG SMUGGLER GO FREE BY GIVING HIM BLANKET IMMUNITY.

Response: We are in the business of putting guys like Aldrete behind bars. In fact, this office leads the nation in the number of drug smuggling cases we prosecute. My office would have much preferred to see Aldrete convicted and sent to prison for his crimes. Aldrete was not prosecuted for the drugs he had on February 17, 2005, because of the conduct of Agents Ramos and Compean. Instead of arresting Aldrete as he attempted to surrender, Agent Compean tried to strike Aldrete with the butt of his shotgun. Vol. VIII, p. 174-175; Vol. IX, p. 13; Vol. VII, p.107. When Agent Compean missed, lost his balance and fell into a ditch, Aldrete ran around him and toward Mexico. Vol. VIII, pp. 176-178. Compean got up, ran after Aldrete, and fired at him fourteen times as Aldrete ran away. Vol. XIII, pp. 161-164; Vasquez Transcript, pp.37-38; Vol. XIV, p. 153. When Compean stopped shooting, Ramos fired once, Vol. XII, p. 209, and struck Aldrete in the buttocks. Vol. VII, pp. 117-122. Aldrete fell to the ground and waited for the agents to arrest him. Vol. VII, pp. 122, 133. According to Aldrete, when he saw the agents had turned and walked away, making no effort to apprehend him, he crossed the river into Mexico. Vol. VII, pp. 123-125, 133.

Because the agents failed to apprehend him, and because they later lied about the shooting, there was no way to prove Aldrete’s involvement except through Aldrete’s own admissions and cooperation. Even Ramos admitted that by not reporting the shooting, he prevented the recovery of evidence that would have made it possible to prove the marijuana case against Aldrete. Vol. XIII, p. 88.

With respect to the immunity offered to Aldrete, it is not unusual for prosecutors to give immunity to witnesses, victims and even defendants suspected of criminal activity, in order to secure testimony, evidence, or other participation in a case. Given Ramos’ and Compean’s criminal conduct in this case, there was insufficient, legally admissible, competent evidence to prosecute Aldrete in this case, Vol. XIII, p. 88; Vol. XIV, pp. 70-71, and we could not force him to return to the United States through extradition. His testimony and evidence were needed to investigate and prosecute violent criminal activity by federal agents. Accordingly, in exchange for his agreement to come to the United States and testify truthfully about the events that occurred on February 17, 2005, Aldrete was promised that he would not be prosecuted for offenses he disclosed that he committed on that date. This immunity, as a practical matter, gave up very little, since the case against him was not prosecutable.

Aldrete-Davila testified that after he was shot, he fell twice in the Rio Grande River, but he didn’t fall between the levee and the vega. (Vol. VIII, p. 39) I doubt Ramos and Compean had the authority to arrest Aldrete-Davila after he crossed the border at the midpoint of the river, nor would they necessarily realize he needed assistance if he was in the river.

The nature and scope of Aldrete-Davila’s immunity and related issues are apparently part of the sealed testimony in the trial transcript. (Vol. VII, pp. 222-230) This topic generated extensive argument at trial because the type and scope of the immunity was unclear. In prior press releases, including this January 17, 2007, ”Myth vs. Reality” press release, the U.S. Attorney claimed that Aldrete-Davila was granted use immunity — not prosecutorial or transactional immunity — for his actions on February 17, 2005.

Aldrete-Davila was given immunity by the U.S. Attorney in a letter agreement, but the Court ruled that document was inadmissible (and it was not included in the online transcript), so it’s not clear what the document says. (Vol. VII, pp. 10-18) The defense stated that the terms of the immunity agreement were not limited to February 17, 2005, and that Aldrete-Davila had complete testimonial immunity. (Vol. 8, p. 14) The prosecutor represented to the Court that Aldrete-Davila had received ”a weird hybrid” — a combination of use immunity that was expanded by the Assistant U.S. Attorney via oral statements she had authorized Christopher Sanchez to make to Aldrete-Davila. (Vol. VII, p. 150)

Ultimately, the Court and the parties agreed that the oral, expanded immunity went beyond use immunity and conveyed prosecutorial or transactional immunity for any event on February 17, 2005, that Aldrete-Davila told the government about. (Vol. VII, pp. 147-151) Aldrete-Davila testified that he believed his immunity agreement prevented the U.S. government from prosecuting him for his actions on February 17, 2005, even if the government obtained independent evidence that he committed a crime. (Vol. VII, pp. 140-145)

The immunity agreement either did not require Aldrete-Davila’s full cooperation in answering questions about what happened on February 17, 2005 — Aldrete-Davila refused to provide the name of the friend who picked him up in Mexico after he was shot — or the government chose not to enforce that requirement of the immunity agreement. (Vol. VII, pp. 46-47, 204-207) Despite government requests, Aldrete-Davila also refused to provide the identity of two people in a white car who were present when Aldrete-Davila first came across the border, as well as the name of the doctor and clinic in Mexico where Aldrete-Davila first received medical treatment. (Vol. XII, p. 71) There was no provision in Aldrete-Davila’s immunity agreement that the deal was off if he lied. (Vol. VII, pp. 40-42)

The purpose of immunity is to convince a witness to talk but the requirements that govern immunity have other goals, too. One of those requirements is that the witness must fully cooperate and provide complete information about what happened. From the prosecutor’s standpoint, this is necessary to verify that the witness is truthful and is providing reliable information. The defense (and, by extension, the Court and the jury) also needs reliable information because immunity can shield a witness from normal methods to test credibility. The U.S. Attorney believed Aldrete-Davila, and apparently did not require his full cooperation.

I’m curious whether other prosecutors require more complete cooperation from an immunized witness, not only for the defendant’s protection but also in the interests of justice. My knowledge about immunity is limited, and I encourage anyone with knowledge and experience on this topic to educate me in the comments.

Allegation: ALDRETE HAD A GUN AND THE AGENTS ONLY FIRED IN SELF DEFENSE.

Response: The jury in this case evaluated the testimony from Border Patrol agents, including the defendants, whose testimony established that Aldrete did not have a gun in his hands when Compean had an opportunity to arrest him. Agent Juarez testified that Aldrete’s hands were visible and empty as Aldrete approached Compean. Vol. VIII, pp. 175-176; Vol. IX, p. 155. Ramos testified that he did not see anything in Aldrete’s hands as Aldrete moved through the ditch. Vol. XIII, p. 43. Compean testified that Aldrete’s hands were empty as he went through the ditch and later, that Aldrete had no weapon in his hands. Vol. XIII, pp. 154-155; Vol. XIV, pp. 66-68, 71-72. In his statement to investigators, Compean admitted that Aldrete had attempted to surrender with both hands open and in the air. In their sworn testimony, Agents Juarez and Compean both confirmed that Aldrete had his hands in the air, Vol. VIII, p. 175; Vol. IX, pp. 155-156; Vol. XIII, pp. 154-155; Vol. XIV, pp. 66-68, 71-72, in an apparent effort to surrender.

Testimony also revealed that Agents Ramos and Compean never took cover nor did they ever warn the other agents to take cover. Vol. VIII, p. 176; Vol. X, pp. 168-169. This action contradicts their claims that they believed they were in danger. Had Agents Ramos and Compean truly believed Aldrete was a threat, they would not have abandoned him after the shooting, Vol. VII, pp. 122-125, and they would have warned their fellow agents who arrived at the scene to stay out of the open while an armed suspect was on the loose.

Agent Compean testified that after the shooting, he picked up his spent casings and threw them into the drainage ditch. Vol. XIII, pp. 165-166; Vol. XIV, p. 157. He even admitted that he may have picked up Ramos’ casing. Vol. XIV, p. 158. He could not explain at trial why he did this. Vol. XIII, pp. 165-166; Vol. XIV, pp.156-158. Agent Arturo Vasquez testified that Compean actually removed the casings from the scene, showing them to Vasquez as Compean was returning to the Fabens Border Patrol Station. Vasquez Transcript, pp. 36-38. According to Vasquez, Compean showed him nine spent casings and calculated he was missing five more, based on the number of live rounds remaining in his magazine. Vasquez Transcript, pp. 37-38. If the agents had believed that the shooting was justified, they would have left the crime scene undisturbed and let the investigation absolve them. Their conduct established that the agents knew that Aldrete did not have a weapon and they knew he posed no threat to them as he fled.

Immediately following the shooting, when Ramos encountered Agent Jose Luis Mendoza near the van, Ramos did not say he was in fear for his life or that he shot at anyone. Vol. X, p. 35. While Compean confessed to his fellow agents, David Jacquez and Vasquez, that he shot at the driver, he did not tell them that the driver had a gun, that he saw something shiny in the driver’s left hand, or that he or Ramos were ever in danger. Vol. X, pp. 69-70, 80; Vasquez Transcript, p. 35. Had Aldrete actually had a gun or a shiny object in his left hand, or had Aldrete truly posed a danger to either Ramos or Compean at any time, they would have broadcast to any and everyone that the driver had a gun.

The testimony regarding Aldrete-Davila’s conduct at the drainage ditch was confusing. Aldrete-Davila claimed he wanted to surrender and Compean agreed (as noted above in Vol. XIII, p. 154) that he thought Aldrete-Davila was going to surrender when he first raised his hands in the drainage ditch. However, Compean claimed that when Aldrete-Davila reached the top of the ditch, he lowered his hands and ran around Compean. (Vol. XIII, pp. 154-155)

The drainage ditch was 11’ deep or more, and it was difficult for a person to enter and exit without using his hands. (Vol. VII, pp. 187-188; Vol. VIII, pp. 36-38, 77-78; Vol. X, pp. 49-50) Therefore, it’s reasonable to believe that at some point Aldrete-Davila used his hands to climb out of the drainage ditch, but he denied that he did. (Vol. 8, pp. 39-40) Juarez testified that as Aldrete-Davila exited the ditch and approached Compean, his hands were raised “like he was trying to block him [Compean]… He [Aldrete-Davila] attempted to block it with his hand. Then he moves, and then he ran towards the levee.” (Vol VIII, pp. 173-178) According to Juarez’s description, Aldrete-Davila was engaged in a blocking motion rather than a surrender.

Allegation: THE AGENTS WERE NOT SURE OF WHAT THEY SAW BECAUSE IT WAS IN THE MIDDLE OF THE NIGHT.

Response: The events of Feb. 17, 2005, occurred at approximately 1:00 P.M. MT. Vol. VIII, pp. 103-104; Vol. X, p. 191.

Agreed.

Allegation: AGENT COMPEAN WAS BLOODIED FROM A STRUGGLE WITH ALDRETE.

Response: Compean testified at trial that he had a cut to his hand and a cut to his chin. Vol XIII, p. 168. He told Agent Mendoza that he cut his chin when he slipped and fell trying to apprehend Aldrete. Vol. X, pp. 32-33. Agent Jacquez noticed the cut between Compean’s thumb and finger, but did not consider the injury to be traumatic. Vol. X, p. 90. Compean cleaned up the cuts in the bathroom at the station. Vol. XI, p. 77. Compean twice told his supervisor that he had not been hit or assaulted by Aldrete. Vol. X, pp. 217; Vol. XI, p. 77. He also refused to fill out an injury report. Had Compean been assaulted he would have reported this to his supervisor. Vol. X, p. 217.

It is logical that the agents’ failure to report the shooting and assault was an important factor in the verdict because it could be evidence of a conspiracy or a cover up. However, I’ve always been confused by the argument that Ramos and Compean conspired to cover up Aldrete-Davila’s shooting on February 17, 2005. If Ramos and Compean did conspire to hide the shooting, why didn’t they explain the gunshots – the only thing that they knew other people must have heard or seen?

Allegation: AGENT RAMOS CLAIMS THAT THE BULLET EXTRACTED FROM ALDRETE MIGHT NOT HAVE COME FROM HIS SERVICE WEAPON.

Response: Agent Ramos stipulated and agreed before trial that the bullet extracted from Aldrete came from his service weapon. Vol. VII, pp. 118-121. This stipulation was based on independent forensic analysis that Ramos did not dispute at trial.

Agreed.

Allegation: THESE AGENTS DID NOT REPORT THE SHOOTING TO SUPERVISORS BECAUSE THE SUPERVISORS WERE ON THE SCENE OF THE SHOOTING.

Response: The evidence introduced at trial and credited by the jury demonstrated that no supervisors were on the scene during the shooting. Two supervisors arrived after the shooting. Vol. X, pp. 22-25. Field Operations Supervisor Jonathan Richards arrived after the shooting, after all but two other agents were already on the scene. Vol. X, p. 209. Supervisor Robert Arnold arrived shortly after Richards. Vol. X, p. 216; Vol. XI, p. 72. Richards was not aware there had been a shooting, Vol. X, p. 225, and no one reported the shooting to him. Supervisor Richards testified that he first learned of the shooting when he was interviewed about the incident by the agent of the Inspector General in mid-March, about a month after the shooting. Vol. X, p. 239. Supervisor Arnold first learned of the shooting in mid-March, when he was told two agents were soon to be arrested for it. Vol. XI, p. 78.

Ramos admitted that he knew Border Patrol policy required him to report a shooting within an hour. Vol. XIII, pp. 18-19. He had been a firearms instructor Vol. XIII, pp.19-20 and a member of the evidence recovery team responsible for investigating shootings. Vol. XIII, p. 84. Compean also knew he was required to report the shooting and he did not. Vol. XIV, pp.169-170. Compean admitted to Luis Barker, then the Chief of the El Paso Border Patrol Sector, that he knew he had to report the shooting and that he knew it was wrong for him and Ramos not to report the shooting. Vol. XI, p.167. Compean admitted to Barker that he knew that if he had reported the shooting, they would have gotten in trouble. Vol. XI, p.167.

Agreed. Compean and Ramos offered an explanation regarding these issues but the jury either did not believe them or did not find their testimony to be exculpatory. In part, their explanation was that things were done different in Fabens. I’m undecided regarding whether the Fabens’ practices resulted in the failures to report but it’s clear that the other agents failed to react to shots fired or to assist Compean and Ramos. The fact that only Ramos went to help Compean suggests to me that things were different in Fabens.

Allegation: THESE AGENTS DID NOT REPORT THE SHOOTING BECAUSE BORDER PATROL POLICY PROHIBITS THEM FROM DOING SO.

Response: Border Patrol policy requires that a Border Patrol agent who fires his or her weapon anytime (on or off duty), must notify their supervisor within an hour. Further, Border Patrol policy requires that all who participated in or observed the shooting shall report it to their supervisor. Testimony of several agents and supervisors as well as the transcript of the radio transmissions, indicate that no supervisor was on scene at the 5 time of the shooting. Yet, neither Ramos nor Compean reported the shooting of Aldrete as required by Border Patrol policy. Ramos’ assertion that supervisors already knew about the shooting, or that someone else had reported it, is inaccurate, unsupported by the evidence, and did not excuse their obligation to report within an hour.

Additionally, Compean proceeded to write the I-44 report (the Report of Apprehension or Seizure) concerning the incident, with input from Ramos. The report made no reference to several key events that afternoon, including Compean’s encounter with Aldrete on foot in the ditch, his having pointed the shotgun at Aldrete, the ensuing foot chase as Aldrete fled, and the firing of shots at Aldrete. The claim that Border Patrol policy does not require the reporting of a shooting in the I-44 is specious. To protect agents involved in shootings from self-incrimination, the Border Patrol practice allows for an agent other than the one involved in the shooting to write the I-44. The I-44 still must include all significant information about the events being reported. That includes the fact that shots were fired. By undertaking to write the I-44, Compean was required to write a truthful report, not a report that contained material omissions amounting to falsehoods. Indeed, in the context of Border Patrol practices and policy, by undertaking to write the I-44, Compean was intentionally creating the impression that there was no shooting. And by omitting the relevant facts, with the aid of Ramos, they submitted and caused to be submitted a false report.

I disagree that the testimony conclusively established that ”the I-44 must include all significant information about the events being reported.” At trial, Supervisor Richards — who was repeatedly described as a stickler for paperwork — was asked about an incident involving Agent Fuentes that involved a marijuana seizure, an assault, and a shooting. The I-44 in the Fuentes incident recounted the drug seizure but did not mention the assault or shooting, and Richards did not think that was a policy violation or a crime to leave that information out. (Vol. X, pp. 314-316)

In any event, I hope Congress will reconsider the applicability of an enhanced penalty for use of a firearm in connection with offenses committed by law enforcement officers in situations like this.

Allegation: THE BALLISTICS REPORT FAILED TO PROVE THE BULLET CAME FROM RAMOS’ GUN AND THE MEDICAL REPORT OF THE BULLET ENTRY WAS CONSISTENT WITH RAMOS’ CONTENTION THAT THE SMUGGLER WAS TURNING AROUND WITH WHAT LOOKED LIKE A WEAPON.

Response: Agent Ramos stipulated and agreed before trial that the bullet extracted from Aldrete came from his service weapon. Vol. VII, pp. 118-121. This stipulation was based on independent forensic analysis that Ramos did not dispute at trial. The stipulation was entered into evidence at trial with Ramos’ agreement. Regarding Aldrete’s movements at the time the bullet struck him, the medical testimony was inconclusive. Vol. IX, pp. 197-98. The doctor testified he could not know exactly how Aldrete was turned. Vol. IX, p.195.

Agreed.

Allegation: RAMOS AND COMPEAN DID NOT BELIEVE THEY WOUNDED THE SMUGGLER BECAUSE HE KEPT RUNNING AND ESCAPED ACROSS THE BORDER INTO A WAITING VEHICLE.

Response: This assertion is directly contradicted by Compean’s handwritten statement provided to the investigator in which Compean stated “I think Nacho [Ramos] might have hit him.” Vol. XIV, p. 155.

Agreed, although Compean recanted and later testified that his statement was taken in the early morning hours after he was awakened at his home, arrested, and questioned by authorities. Further, even if Compean gave a contradictory statement, it does not prove that Ramos knew he shot Aldrete-Davila.

Allegation: RAMOS AND COMPEAN’S ONLY “LIE” WAS THAT THEY GAVE AN INCOMPLETE REPORT OF THEIR CONFRONTATION WITH THE SMUGGLER ON FEBRUARY 17, 2005.

Response: These agents were prosecuted and convicted of the serious felony offenses of illegally using deadly force when their lives were not in danger, depriving another of rights under color of law and obstructing justice. There was no credible evidence that the agents were in a life-threatening situation or that Aldrete had a weapon that would justify the use of deadly force. In fact, Border Patrol Agent Juarez, who was at the scene, testified at trial that he did not draw his pistol because he did not believe that Aldrete posed a threat to his or 6 Agent Compean’s safety. Vol. VIII, p. 173; Vol. IX, p. 22. He also testified that Aldrete’s hands were empty when Compean attempted to strike Aldrete with the butt of Compean’s shotgun. Vol. VIII, pp. 175-176. By the time Agent Juarez saw Compean shooting, Aldrete was almost in Mexico. Vol. IX, p. 22.

These points are discussed above, particularly regarding the testimony of Agent Juarez, but this verdict surprised me because it’s unusual for a jury to take the word of an admitted drug smuggler over law enforcement officers. Obviously, law enforcement officers aren’t always good or right and drug smugglers aren’t always bad or wrong, but it’s unusual for a jury to believe an admitted criminal without clear corroboration. This jury found corroboration and I respect that, but I was still struck by the following excerpt from the prosecutor’s closing argument regarding the people who live in El Paso neighborhoods:

“Ladies and gentlemen, we live in El Paso, Texas. There is a substantial likelihood that somebody in your neighborhood is a dope dealer. That is even more likely in San Isidro, Mexico.” (Vol. XV, p. 102)

Allegation: THE GOVERNMENT SHOULD HAVE PROSECUTED THE DRUG SMUGGLER AND GIVEN IMMUNITY TO THE BORDER PATROL AGENTS.

Response: My office would have much preferred to see Aldrete convicted and sent to prison for his crimes. We are in the business of putting guys like Aldrete behind bars. In fact, this office leads the nation in the number of drug smuggling cases we prosecute. Because the agents could not identify him, found no fingerprints tying him to the van and did not apprehend him after shooting him, the case against Aldrete could not be proved. Furthermore, the shooting of a fleeing suspect who posed no threat to agents Ramos and Compean is a serious crime that federal prosecutors could not ignore.

Agreed, although the controversy and allegations regarding Aldrete-Davila’s “second offense” (discussed below) casts some doubt on the claim that the U.S. Attorney’s office preferred to see Aldrete-Davila convicted and sent to prison.

Allegation: THE GOVERNMENT USED THE WRONG LAW THAT CARRIES A MANDATORY ADDITIONAL 10 YEAR SENTENCE.

Response: The prosecution used the law that Congress enacted. Congress made it a crime to discharge a firearm during a crime of violence, punishable by a mandatory prison term of at least ten years. Agents Ramos and Compean committed that crime, as well as others. Congress did not provide an exemption for law enforcement officers. The crimes committed by these agents were serious — shooting 15 times at a fleeing, unarmed suspect — and because of that this charge was warranted.

Agreed, although the U.S. Attorney’s office has discretion in how it decides to charge a defendant.

Allegation: THE GOVERNMENT WITHHELD CRUCIAL EVIDENCE FROM THE JURY.

Response: The prosecution did not withhold any admissible evidence from the jury. The prosecution provided the defense an opportunity to see the government’s evidence before trial. This is standard operating procedure. The trial judge ruled on a number of evidentiary issues during trial, and excluded evidence that was not relevant or admissible under the Federal Rules of Criminal Procedure and the Federal Rules of Evidence, which govern all federal trials. Those rulings are subject to review on appeal by the Fifth Circuit Court of Appeals and the United States Supreme Court. This procedure is what distinguishes a trial at law from a street fight or free-for-all. Deciding guilt or innocence according to established rules is what makes this a civilized country.

Agreed, although the sealed testimony indicates there are at least two significant disputes about the production and/or admissibility of relevant evidence. We’ll see what the Fifth Circuit says.

Allegation: THE JUDGE KEPT FROM THE JURY ALDRETE’S CLAIM THAT HIS FRIENDS HAD CONSIDERED A “HUNTING PARTY” TO GO SHOOT SOME BORDER PATROL AGENTS.

Response: These allegations were addressed by the district court. Vol. VII, pp. 215-217. The admissibility of testimony is committed to the discretion of the trial judge, based on the Federal Rules of Evidence and other legal precedent, and is subject to review by the Court of Appeals. Beyond that, the government cannot comment other than to say that the defendants received a fair and thorough trial and will have full opportunity to have their case reviewed on appeal.

Agreed. This is a matter for the discretion of the trial judge but the merits of the threat present an interesting question. At trial, Christopher Sanchez testified that he did not ask Aldrete-Davila the name of his friends that were drug traffickers that were making threats to shoot Border Patrol agents in retaliation for this shooting. (Vol. XII, pp. 72-73) Instead, this threat was added to an existing BOLO (Be On the Lookout) warning to the Border Patrol and federal law enforcement because another Mexican organization had previously made a threat. It was also reported to the Mexican authorities through the American consulate in Juarez. (Vol. XII, pp. 72-73)

One of the most effective prosecution points at trial was the testimony that Ramos and Compean needlessly endangered other agents by failing to specifically warn them they thought Aldrete-Davila had a gun. Following this logic, the government needlessly endangered its agents by failing to obtain complete information and directly warning the Fabens’ Border Patrol agents of a specific threat.

Allegation: A DEPARTMENT OF HOMELAND SECURITY MEMO DATED MAY 15, 2005, SHOWS THAT THE TWO AGENTS DID GIVE A PROMPT, COMPLETE, ORAL REPORT TO SUPERVISORS WHO WERE ACTUALLY PRESENT ON FEBRUARY 17, 2005. THE SUPERVISORS DECIDED NOT TO MAKE A WRITTEN REPORT.

Response: The evidence demonstrated that no supervisors were on the scene during the shooting. Two supervisors arrived after the shooting. Field Operations Supervisor Jonathan Richards arrived after the shooting, after all but two other agents were already on the scene. Vol. X, p. 209. The second supervisor, Robert Arnold, arrived shortly after Richards. Vol. X, p. 216; Vol. XI, p. 72. Radio transmissions admitted at trial corroborated this testimony. Richards was not aware there had been a shooting, Vol. X, p. 225, and no one reported the shooting to him. Supervisor Richards first learned of the shooting when he was interviewed about the incident by the Inspector General agent in mid-March, about a month after the shooting. Vol. X, p. 239. Supervisor Arnold first learned of the shooting in mid-March, when he was told two agents were soon to be arrested for it. Vol. XI, p. 78. Both Ramos and Compean admitted in their testimony at trial that they did not report the shooting as required.

Ramos admitted that he knew Border Patrol policy required him to report a shooting within an hour. Vol. XIII, pp. 18-19. He had been a firearms instructor and a member of the evidence recovery team responsible for investigating shootings. Vol. XIII, pp. 19-20, 84. Compean also knew he was required to report the shooting and he did not. Vol. XIV, pp. 169-170.

Agreed. At trial, Compean and Ramos tried to explain these issues but the jury either did not believe them or did not find their testimony to be exculpatory.

Allegation: THESE AGENTS WERE SENTENCED TO TOO MUCH TIME IN FEDERAL PRISON.

Response: Congress determined the penalties imposed on Ramos and Compean by setting the punishment for discharging a firearm during a crime of violence at a mandatory minimum of ten years (in addition to any other sentence imposed). Title 18, United States Code section 924(c)(1)(A)(iii). Congress did not make an exception for law enforcement officers. Instead, Congress specifically debated the issue and determined that no exception should be made and that the law should apply to officers who misuse their privilege to carry a firearm.

I don’t know enough about the legislative history to comment but I hope Congress considers and clarifies this issue.

Allegation: SINCE THE TRIAL, JURORS HAVE STATED THAT THEY WERE COERCED BY THE FOREPERSON INTO RENDERING A GUILTY VERDICT.

Response: Because an appeal is pending, we cannot directly comment on the content or legal implication of possible juror statements. However, we can clarify a few facts. On March 8, 2006, the jurors were polled in open court immediately after announcing their verdicts and all said without hesitation or equivocation that the verdicts were theirs. Ramos and Compean filed motions for new trials based on juror affidavits in October 2006. The government responded and the District Court denied their motion.

Agreed. Sometimes jurors feel remorse or have doubts about a verdict after trial but I don’t believe that is a valid reason to undo an otherwise legitimate verdict.

Allegation: RAMOS WAS IMPROPERLY PLACED IN THE GENERAL PRISON POPULATION WHERE HE WAS BEATEN.

Response: Ramos was processed into the federal prison system in much the same manner as other former law enforcement officers who are convicted of crimes and currently serving sentences in prison. As a general 8 matter, the Federal Bureau of Prisons (BOP) determines the appropriate institution in which to house inmates based on information from many sources, including the courts, the probation office, the U.S. Marshals Service and the prisoner. There are some inmates who, based on their backgrounds and other characteristics, have difficulty functioning in the general population. The BOP has the ability to segregate such offenders from other inmates. When inmates arrive at the institution to which they have been designated, as a part of the intake screening process, staff discuss with inmates the living conditions in segregation and in general population. The decision to segregate is based on the totality of the circumstances and necessarily limits the prisoner’s freedom of movement, recreation, visitation, and communication. As such, whenever it is possible to do so safely, inmates are housed in the general population.

In this case, Compean, through his counsel, requested to be separated from the general prison population, and he was. In response to BOP’s inquiry, Ramos’ counsel indicated in a letter that Ramos did not want to suffer any of the “punitive consequences” of segregation and that he preferred to be housed in the general population. The Federal Bureau of Prison’s objective is to ensure that all of its more than 195,000 inmates are housed safely and securely and provided appropriate programs and services, including appropriate medical care.

I don’t know enough about this issue to comment.

Allegations: THE GOVERNMENT WOULD NOT RELEASE THE TRANSCRIPT OF THE TRIAL WITHOUT WHICH THE BORDER PATROL AGENTS COULD NOT APPEAL.

Response: The United States Attorney’s Office has no involvement in the preparation of the trial transcript and made it available to the public soon after it was received. Indeed, our office requested an expedited copy of the trial transcript from the court reporter on October 17, 2006, even though the government did not plan to bring an appeal. The transcript was received from the court reporter on Friday, February 9, 2007, and as a public service, we posted it to our website by Tuesday, February 13, 2007.

The ability of Ramos and Compean to appeal has no relation to the prosecution receiving a copy of the transcript. The former agents had the same ability to order the transcript from the court reporter as the prosecution.

Agreed, and I appreciate that the U.S. Attorney’s office made the Ramos/Compean trial transcript available online.

Allegation: THE GOVERNMENT DENIED RAMOS AND COMPEAN’S FREEDOM PENDING APPEAL.

Response: The district court properly applied the law enacted by Congress, which mandated the agents’ detention pending appeal after they were convicted of crimes of violence. On February 22, 2007, the Court of Appeals for the Fifth Circuit affirmed the District Court’s ruling, No. 06-51489.

I don’t know enough about this issue to comment.

Allegation: ALDRETE HAS BEEN SUBSEQUENTLY ARRESTED FOR SMUGGLING MORE DRUGS INTO THE UNITED STATES, BUT THE GOVERNMENT WILL NOT PROSECUTE HIM.

Response: Our office aggressively prosecutes drug offenders every day in court. If we had a provable case against Aldrete, we would prosecute him. There have been allegations about subsequent drug activity by Aldrete. As of today, to our knowledge there has been no arrest or indictment of Aldrete for any drug activity. As a general matter, U.S. Attorneys’ offices do not comment on pending investigations. Moreover, because some evidence evaluated by the trial court has been placed under seal and the appeal in this case is currently pending, we cannot comment specifically on the facts alleged by some in the media and Congress. But, to be clear, the immunity provided to Aldrete extended only to offenses committed on February 17, 2005. In conjunction with law enforcement agencies that investigate crimes, this office vigorously enforces the nation’s laws, and will continue to do so. If we obtain information that gives us a provable case of criminal activity by Aldrete, we will prosecute him.

According to an article published in the Inland Valley Daily Bulletin (no link available — the article has been archived), “an Oct. 25, 2005, DEA report shows that DEA investigators believed they had sufficient evidence to indict Aldrete-Davila, but their requests to do so were denied by prosecutors. According to a high-level source close to the investigation, Assistant U.S. Attorney Laura Gregory was notified in October 2005 that Aldrete-Davila was being investigated by the DEA and that the agency had new evidence against him.” Apparently the sealed testimony in the trial transcript addresses this issue and presumably the Fifth Circuit will review it. I hope Congress also investigates the validity of allegations that Aldrete-Davila was subsequently involved in drug smuggling activity for which the DEA recommended indictment.

Allegation: THE DRUG SMUGGLER WAS AWARDED A GREEN CARD OR OFFERED PERMANENT RESIDENT STATUS IN EXCHANGE FOR HIS TESTIMONY.

Response: Aldrete was not given a green card or offered permanent resident status in the United States. As is common practice in investigations and law enforcement operations that require assistance from persons not legally residing in the United States, immigration officials obtained “paroles” or fixed term, limited use documents that permitted Aldrete to enter the United States. In this case, Aldrete was permitted to enter the United States for medical treatment associated with the removal of the bullet, a key piece of evidence in the case, as well as to help prepare for and provide testimony at trial in El Paso. To the best of our knowledge, the last time he was legally allowed to enter the United States was in February 2006, to testify at trial.

The trial testimony showed that the government originally provided Aldrete-Davila with a one-month I-94 border crossing card. (Vol. VII, pp. 42-43) After the original I-94 expired, Christopher Sanchez gave Aldrete-Davila another border crossing card — a “temporary parole” for humanitarian reasons — that enabled him to cross the border at any time for medical treatment. Aldrete-Davila had a pass in March 2005 for 30 days; an I-94 in June for 90 days; another pass in October for this case when it was originally scheduled to come to trial; and then a pass so he could come to trial. (Vol. VII, pp. 43-45)

I am curious about when and for what purpose Aldrete-Davila was permitted to legally enter the United States and the specific terms and conditions of his passes. It seems he generally had access at any time. In addition, why does the April 25, 2007 press release curiously state that, “to the best of our knowledge,” the last time Aldrete-Davila legally entered the U.S. was to testify at trial?

Allegation: ILLEGAL ALIENS DO NOT HAVE ANY CONSTITUTIONAL RIGHTS.

Response: The United States Supreme Court has held that the Constitution protects all persons in the United States whether they are here legally or illegally. Zadvydas v. Davis, 533 U.S. 678, 693 (2001). It is a violation of the Fourth Amendment to shoot an unarmed person who poses no threat to the shooter. Tennessee v. Garner, 471 U.S. 1 (1985). This law applies regardless of immigration status. Zadvydas, 533 U.S. at 693.

Agreed.

Allegation: AGENT RAMOS WAS BORDER PATROL AGENT OF THE YEAR.

Response: Agent Ramos has never received any formal recognition or award for being the Border Patrol Agent of the year. In fact, he has been arrested on at least three occasions for domestic abuse and was formally suspended by the U.S. Border Patrol on two occasions. Vol. IV, pp. 3-22.

Even if these statements are correct, is it true that Ramos had been nominated for Border Patrol Agent of the Year?

— DRJ

83 Responses to “DRJ Analyzes Johnny Sutton’s Fact Sheet in Anticipation of Sutton’s Testimony Today”

  1. Thanks, DRJ for this precis. The press release is a useful jumping-off point to highlight your extensive work on the case. The “agreeds” are as useful as the highlighted points of contention.

    By the way, the paragraph beginning “Agent Oscar Juarez corroborated parts of Aldrete-Davila’s version” has a URL link that didn’t ‘take’.

    AMac (c822c9)

  2. […] at my blog, my valued commenter DRJ has provided a detailed post which compares the claims made in Johnny Sutton’s most recent press release against the facts […]

    Hot Air » Blog Archive » An Fact-Based Analysis of Johnny Sutton’s Fact Sheet in Anticipation of Sutton’s Testimony Today (d4224a)

  3. Excellent post, DRJ.

    Slublog (6f1887)

  4. Cipriano Ortiz, the guy who owned the stash house that Davila brought the October load to, is in jail awaiting trial. Davila has apparently not been arrested for this. The senators better get to the bottom of this today.

    It appears that Davila was not only given blanket immunity but that he was given immunity for future crimes as well.

    I’m surprised that the analysis doesn’t begin to expose all of the lies, half-truths, deception, illogic and omissions in Sutton’s “fact sheet”.

    J Curtis (ecc9cc)

  5. Shock me, J Curtis. Expose one yourself — with citations to the record.

    If you do, I’ll eat my hat. ( I don’t have one, but I’ll buy one just to eat it.)

    Just make sure you back up what you say with citations — and make sure it’s not something DRJ already said.

    I’ll be waiting right here. Eagerly.

    Patterico (664eeb)

  6. “… but this verdict surprised me because it’s unusual for a jury to take the word of an admitted drug smuggler over law enforcement officers.”

    I don’t see anything surprising about the verdict, I thought the prosecution case was very strong. And how usual is it for jurors to acquit law officers who shoot someone and admit they knew they were supposed to report it and didn’t? I would expect that generally produces a conviction.

    James B. Shearer (fc887e)

  7. What are the constitutional rights of an illegal alien ingaged in illegal activities,such as drug smuggling?

    jeff (158220)

  8. Excellent post. What I find the most interesting is the immunity provision. The official federal authorization is called a Compulsion Order, and it carries with it (by statute) authorization to prosecute someone for perjury or refusal to comply with the compulsion order. See 18 USC 6002 and 6003. So if the Aldrete refused to identify his companions, he would appear to have violated the compulsion order – which is issued by the court. Also, the grant of immunity is limited to “use immunity,” not transactional immunity, so that your testimony cannot be directly or indirectly used against you later as a basis for prosecution. As for the rest of the analysis provided, great job!

    509th Bob (077d0d)

  9. As I’ve noted before, at around the time of the trial, on two separate Fox News programs, prosecutor Sutton denied that the agents testified that they thought the smuggler had pointed a gun at them.
    One of those appearances was immediately after a defense attorney stated that they had so testified.
    I don’t know if the agents told the truth, but – thanks to the posting of the transcript – we now know that Sutton didn’t.

    CMSmith (843567)

  10. What are the constitutional rights of an illegal alien ingaged in illegal activities,such as drug smuggling?
    Comment by jeff — 7/17/2007 @ 7:55 am

    Asked and answered:

    Response: The United States Supreme Court has held that the Constitution protects all persons in the United States whether they are here legally or illegally. Zadvydas v. Davis, 533 U.S. 678, 693 (2001). It is a violation of the Fourth Amendment to shoot an unarmed person who poses no threat to the shooter. Tennessee v. Garner, 471 U.S. 1 (1985). This law applies regardless of immigration status. Zadvydas, 533 U.S. at 693.

    Slublog (6f1887)

  11. Response: Agent Ramos stipulated and agreed before trial that the bullet extracted from Aldrete came from his service weapon. Vol. VII, pp. 118-121. This stipulation was based on independent forensic analysis that Ramos did not dispute at trial. The stipulation was entered into evidence at trial with Ramos’ agreement.

    That is a perfect example of a Sutton deception and the deception is predicated on a government lie.

    Ramos was lied to and told that forensics proved that it was his bullet that was pulled out of Davila. Ramos never denied that he fired a shot so he agreed to “stipulate” to something he was unaware was a lie.

    Had they went to Compean first and got him to stipulate to the lie that it was proved to be Compean’s bullet that was pulled from Davila, would we then call that a fact?

    J Curtis (ecc9cc)

  12. 509th Bob,

    Help me understand your comment. The transcript doesn’t include the text of the immunity agreement but the testimony was clear that Aldrete-Davila was offered immunity pursuant to a letter from the US Attorney’s office, as modified (at the direction of the Assistant US Attorney) by oral representations from the government investigator, Christopher Sanchez. Aldrete-Davila agreed to the immunity granted in the letter and, based on the bench conference discussions, the text of the letter was not limited to use immunity.

    Are you saying there is a federal statute that governs this immunity agreement and, in effect, overrides the express terms of the agreement?

    DRJ (bea74b)

  13. J Curtis,

    The government could not compel Ramos to stipulate it was his bullet that shot Aldrete-Davila. Stipulations occur during the pre-trial process when the defendant has counsel, so this was done with input from Ramos’ attorney. Ramos’ counsel undoubtedly reviewed the government’s report before discussing the stipulation with Ramos and agreeing to it. If Ramos had doubts about whether the results were correct, he could have asked the Court for permission to do further testing.

    DRJ (bea74b)

  14. DRJ, the terms of the immunity are governed by, essentially, a contract between the parties, but that contract has to be approved by a U.S. District Court Judge. The U.S. Attorney’s Office can issue what is called “letter immunity,” (a.k.a. “use-immunity”) which essentially promises that a witness’ testimony cannot be used directly as an admission, or indirectly to find other evidence of guilt about the offense testified about. The more formal, but still only use-immunity, compulsion order, which binds all U.S. Attorney’s Offices (not just the letter issuing one) comes from the Department of Justice, and is approved by a Deputy Assistant Attorney General of the Criminal Division. With certain exceptions, DOJ never grants transactional immunity. The AUSA and the investigator have no real legal authority to alter the terms of DOJ immunity/compulsion orders. The statute is located at 18 U.S.C. 6002 and 6003, and contains the terms and conditions of the authorizing statutes. This does not necessarily prevent a prosecutor from going off the reservation, but it could constitute grounds for sanctions against the out-of-bounds individuals. Let me look up what the U.S. Attorney’s Manual says about transactional immunities.

    509th Bob (077d0d)

  15. Thanks, Bob, that makes sense.

    It would be ironic if the US Attorney’s office had a problem following the immunity rules in a case where the defendants are charged with failing to follow the reporting rules.

    DRJ (bea74b)

  16. James B. Shearer #6,

    Your comment is logical and sensible. My problem is that, after reading the transcript, I doubted that a jury in my community would have convicted these agents of any crime except obstruction – so the El Paso verdict intrigued me. However, I respect the jury’s verdict and I will respect whatever the Fifth Circuit decides in this case.

    DRJ (bea74b)

  17. Well, I learned something new today. The letter immunity granted by a U.S. Attorney’s Office is capable of granting transactional immunity, according to the Federal Grand Jury Practice Manual. Formal statutory immunity, however, is limited to use-immunity. This strikes me as very odd, since in the pantheon of Justice hierarchies, a Deputy Assistant Attorney General outranks a U.S. Attorney. Given all of the other prior-approval requirements imposed on U.S. Attorney’s Offices, this one strikes me as being the oddest, since it is a grant of power far in excess of other practices that frequently require approval from the Assistant Attorney General of the Criminal Division or her delegate.

    509th Bob (077d0d)

  18. Thanks again, Bob, that is interesting. It sounds like the US Attorney has some discretion in deciding the scope of immunity he can offer, and apparently the US Attorney used that discretion here to get information about what happened in Fabens. That strikes me as consistent with a prosecutor’s duties so I don’t understand why the US Attorney’s press releases (describing the scope of Aldrete-Davila’s immunity) seem inconsistent with the descriptions of that immunity in trial transcript.

    DRJ (bea74b)

  19. 13

    The councel was reviewing documents they assumed to be true but were actually lies. Here is one of the documents they would have been relying on before stipulating:

    From page 17 of the DHS report:

    On March 18, 2005, the Texas DPS Crime Laboratory informed the DHS OIG that the bullet recovered from Aldrete-Davila’s leg had been fired from a .40 caliber Beretta pistol, serial number [omitted], which was assigned to Ramos.

    This clearly states that the crime laboratory eliminated all other guns on the planet as the possible weapon that shot the bullet, including Compean’s Beretta. We now know that the DHS was informed of no such thing and they falsified the evidence to induce what was in effect a false confession.

    J Curtis (ecc9cc)

  20. J Curtis,

    I agree we don’t *know* Ramos shot Aldrete-Davila because we didn’t see the evidence that supports that claim. However, that’s the way stipulations work in court. We assume that Ramos, the defendant, wouldn’t stipulate to something that wasn’t true because he has a greater incentive than we do to make sure it’s true before he stipulates his bullet shot Aldrete-Davila.

    I admit that sometimes parties stipulate to facts for economic or common-sense reasons. For instance, maybe Ramos didn’t have the money to pay for an independent analysis. Or maybe he and his attorney decided it would be a bad idea to cause the jury to listen to the expert’s testimony because it might bore or irritate them. For whatever reason, Ramos decided to stipulate it was his bullet and, once he did that, the law says it was his bullet.

    Frankly, it wouldn’t matter anyway. Even if it wasn’t Ramos’ bullet that hit Aldrete-Davila, I don’t think it would have changed the jury’s verdict. Defendants were convicted for shooting at Aldrete-Davila, acts that they admitted doing, not for actually hitting him.

    DRJ (bea74b)

  21. […] version is here, but you can read the full opus at Patterico’s site, here.  My own reflexive view is that once a Border Agent has shot a drug dealer in the ass he should […]

    Shameless namedropper that I am… at Amused Cynic (691ade)

  22. I just don’t have the time today to flyspeck this entire post. But I’ll make comments here and there as I read it.

    First, as to one comment by J. Curtis, a stipulation to a “fact” by the parties is conclusive as to that fact. The government has an obligation under Rule 16 to provide reports of all scientific testing of evidence — like a ballistics matching report. If the defense disagrees with the report, or questions its conclusions, they could have required the government to have the expert testify as to the testing, cross-examined that expert, and presented their own expert who might offer a differnt opinion. The defense made a choice for tactical reasons. They decided to not dispute that Ramos had shot A-D, but to rely on justification.

    My first criticism of DRJ’s analysis has to do with the Juarez testimony. One of the most fundamental jury instructions given to jurors is that they are the sole judge of the facts, and in determining the facts they can believe all of what a witness says, some of what a witness says, or none of what a witness says.

    There are always varying recollections between two witnesses to the same event, and its very common that a witness under “stress” in the aftermath of the event tells an “evolving” story — to put it kindly.

    To me, the most compelling feature of Juarez’s testimony was that he corroborated A-D’s EXACT description of events in his second interview, having had not opportunity to talk with A-D or to know what A-D had told the investigators in Mexico. As I recall, in his first interview he had basically towed the “Blue Line” by denying there was a shooting. So, his second interview was the first time he began to suggest there was truth to what A-D had claimed.

    If Juarez is unreliable or not telling the truth, how is it that he managed to tell the investigators nearly the exact same version of facts given separately by A-D, with whom he had no common interests?

    His version was at odds in key respects with Compean and Ramos, who had a common interest in “getting their story straight.”

    So, who is telling the truth — two guys who give separate statements that coincide on the critical facts when they have no reason to collaborate on a fabrication of events — or two guys who tell a different version of facts and have a reason to collaborate on a fabrication of events?

    wls (a15ff1)

  23. Frankly, it wouldn’t matter anyway. Even if it wasn’t Ramos’ bullet that hit Aldrete-Davila, I don’t think it would have changed the jury’s verdict. Defendants were convicted for shooting at Aldrete-Davila, acts that they admitted doing, not for actually hitting him.

    Whether or not the lie/falsification ultimately mattered is irrelevant to the issue at hand so let’s not obscure the focus on the fact sheet by jumping to the big picture.

    I guess for every lie of Sutton’s I point out, someone can come back with “the jury still would have convicted”, so what is the point of the discussion? I totally agree that this jury would have convicted the border agents no matter what the evidence showed.

    J Curtis (ecc9cc)

  24. 509th Bob — the Dep. Assist. AG does not outrank a US Attorney. There isn’t really a formal line of authority over US Attorneys below the Deputy Attorney General (DAG), the No. 2 Official in the Justice Dept.

    But, the easiest way to understand where the US Attorney fits in is to remember that the US Attorney is a Presidential Appointee, and is really the personal representative of the President in the 94 Federal Judicial Districts.

    The Justice Department has its own management structure, and the 94 US Attorneys offices all fall under the DAG’s auspices, whereas the Assitant Attorney Generals supervise various units of Main Justice. They do not supervise US Attorneys.

    But, Congressional action often gives power to the Attorney General, and with it the authority to delegate the exercise of that power. I haven’t looked at the various immunity statutes lately, but I suspect what you are seeing is the delegation of the AG’s authority to grant transactional immunity, and that the delegation is down to the Assistant Attorney General for the Criminal Division. When DOJ policies require US Attorneys to get authorization from the AAG on issues such as this (and there are many such issues in the US Attorney manual), the purpose is to promote and insure uniformity across the nation in the way those powers are exercised.

    But, a US Attorney has the authority in his district to give transactional immunity because he is the representative of the President, and the President as the Executive Branch can opt to exercise the power given to him by Congress in any fashion he sees fit.

    Main Justice may get heartburn over it, and call the US Attorney on the carpet for doing something out of policy, but that’s different than saying the US Attorney lacked the authority to do it.

    wls (a15ff1)

  25. 22

    The government has an obligation under Rule 16 to provide reports of all scientific testing of evidence

    But don’t they have an obligation not to provide a falsified report of scientific testing of the evidence?

    J Curtis (ecc9cc)

  26. WLS #22,

    I’m confused about how you specifically believe Juarez verified Aldrete-Davila’s version of events. Here’s my take on Juarez’s importance to the prosecution’s case:

    Juarez’s testimony chiefly involved (1) the period of time that he and Ramos chased the van back to the border and (2) what occurred at the drainage ditch. As to (1), both Aldrete-Davila and Juarez testified they were traveling at or over the speed limit, while Ramos and Compean said they weren’t sure how fast they were going. Juarez also contended that Compean misidentified the color of the van, claiming he thought Compean said it was blue vs. silver/gray. The only other dispute that I recall concerned whether Ramos and Juarez had their emergency lights on. Juarez said no, Aldrete-Davila said he wasn’t sure, and Vasquez and Ramos said they did. How does that testimony support Aldrete-Davila’s story?

    As to (2), Juarez testified:

    (a) That Aldrete-Davila did not have anything in his hands while he was in the drainage ditch; – This is relevant on the issue of whether Aldrete-Davila had a gun but it’s not conclusive because the shooting occurred after Aldrete-Davila and Ramos had crossed the levee a minute or so later.

    (b) That Compean tried to block Aldrete-Davila with his shotgun and Aldrete-Davila held his hands up in a blocking motion; – As I noted in the original post, this doesn’t support Aldrete-Davila’s claim that he was surrendering.

    (c) That Compean fell down and then got up and ran after Aldrete-Davila; – Didn’t all the witnesses agree this happened?

    (d) That he saw Compean shooting at Aldrete-Davila after Juarez climbed out of the drainage ditch and after Compean had crossed the levee and was moving downward; – I think the witnesses agreed on this, too.

    (e) Juarez claimed he did not pull his weapon because he did not perceive a threat. – Is this persuasive? Juarez was on his first drug chase/seizure so I doubt he was the best judge of what to do or how to act. Even if he was, recall that Sanchez testified that he would have responded to help Compean. Finally, Aldrete-Davila testified that all the agents at the drainage ditch had their weapons drawn, so that had to include Juarez because he was the second agent on the scene at the ditch.

    Thus, Juarez’s testimony supported Aldrete-Davila in only 2 respects: That Aldrete-Davila did not have a gun in his hand while he was in or exiting the drainage ditch, and that Juarez did not view Aldrete-Davila’s actions as threatening. I agree we don’t know why the jury made it’s decision but it seems likely a jury would be impressed that a Border Patrol agent at the scene was not threatened by Aldrete-Davila’s actions. However, as I noted above, Juarez was involved in his first drug chase/seizure and wasn’t experienced in handling exigent circumstances. Christopher Sanchez was an experienced law enforcement officer and he would have done what Ramos did.

    Personally, I think Juarez was a young man in over his head who initially tried to be loyal to his Border Patrol colleagues and who ultimately tried to please the prosecutors in the hope he could keep his job. I don’t expect people to agree with my perspective or opinion on this, and that’s why I intentionally focused on the testimony and comments by the prosecution attorneys and investigator when it came to this issue and the immunity issue. You don’t have to agree with me but we should all seriously consider what they said.

    DRJ (bea74b)

  27. J Curtis, do you believe the story Ramos and Compean told under oath at their trial?

    James B. Shearer (fc887e)

  28. 17

    Is there something that leads you to believe that Sutton didn’t get prior approval for the immunity from higher up or that this whole affair wasn’t being directed from the top?

    I suspect that the senators would merely need to ask and they would learn that this whole affair was instigated at the presiden’t and AG’s behest. They won’t ask.

    J Curtis (ecc9cc)

  29. Shearer

    J Curtis, do you believe the story Ramos and Compean told under oath at their trial?

    For what purpose are you trying to change the subject?

    J Curtis (ecc9cc)

  30. DRJ — Like I said, I don’t have time to go back and look through all the testimony, but in general, my recollection was that A-D told a particular story about how the episode unfolded. I’m not talking so much about specific details like the speed they were traveling or if the lights were on, etc. But, specifically about what happened in the ditch.

    The story A-D told was essentially that he was climbing up the ditch bank to surrender when, at Ramos’ urging, Compean swung the butt of his shotgun like a baton and tried to hit A-D in the face while A-D had his hands up. That Compean lost his balance when his swing missed, and fell on his face. A-D, now in fear he was going to be assaulted rather than peacefully apprehended, side-stepped the falling Compean and took off up the other side of the ditch, and over the top into the vega. Compean recovered — now mad — and took off running after him.

    My view — Compean’s decision to begin shooting at A-D was motivated by Compean being pissed off that he had just fallen down in the ditch.

    Now, Compean and Ramos tell investigators a story at odds with A-D on many details. Most significant to me was Compean’s absurd description that he was trying to simply push A-D away with the butt end of his shotgun in some defensive manuever because a spanish speaker wasn’t obeying his instructions in spanish to stay away and keep his hands up. And it was while trying to defend himself — not while attempting to assault A-D — that Compean fell into the ditch.

    In my experience handling cases involving illegals and/or drug dealers in California, Compean’s description is complete BS. The mopes like A-D do not seek out confrontations with police. And, its mopes that are paid to drive large loads of drugs across borders, not bigshots. Bigshots don’t want to get caught at the most vulnerable moment — with the stash of drugs in the van they are riding in.

    And that fact isn’t changed by how much MJ was in the van. That load of MJ WAS NOT that signficant, no matter how big the price tag the press wants to put on it. MJ is cheap to grow — it takes about 120 days from start to finish, and there is very little in the way of capital investment, especially if its grown in Mexico. A large outdoor plant might generate about a kilo of dried MJ in one growth. So, 700 kilos (I think that was the amount in the van) represents about 700-800 plants. Large scaled outdoor gardens generally have 5000 plants or more.

    Now, back to Juarez. What was significant to me was that when Juarez broke ranks in his second interview with Sanchez, his story of what happened on the levy matched almost exactly with what A-D had told the agents when he was interviewed in Mexico — especially about what Compean tried to do in hitting him with the shotgun and then falling down.

    At that point, an investigator and prosecutor has to decide which of these two competing versions is more true than the other. Since Juarez and A-D don’t have common interests and aren’t in a position to collaborate on their stories, you have to credit their version that tracked so closely to each other, and discount the story of Ramos and Compean. When you look at some other discrepancies in the details of their stories — like the failure to mention that a shiny object motivated the decision to shoot, or having failed to report the shooting altogether and then violating a whole series of regulations on preserving a crime scene — you begin to get a flavor for who you are going to believe.

    Whether there was a shiny object or not that justified Compean’s decision to shoot is a fact that relies SOLEY on Compean’s credibility.

    His credibility was in shreds because of a whole series of things he said on did.

    A-D’s credibility — notwithstanding his character — never took a direct hit in terms of him saying something to the investigators that was established by other evidence to be demonstrably false.

    So, Juarez was important not because he testified to a specific “fact”, but rather because he was the first piece of evidence that exposed Compean and Ramos to having been engaged in a cover-up. Once there was a cover-up, you then call into question their stated justification for shooting. In the end, they just weren’t believable and that’s why the jury convicted.

    The jury had two versions it heard. One version came from a drug dealer — but it had all the earmarks of being true. The other version came from two BP officers — but it had was beset by internal contradictions and conflicts with other evidence.

    wls (a15ff1)

  31. 29

    I just don’t understand the sympathy for Ramos and Compean who I don’t find at all sympathetic. Why make a big deal out of this particular case, surely there are better cases for the border security cause?

    James B. Shearer (fc887e)

  32. WLS,

    I’ve always liked your theory of this case because it sounds right and it’s a clean argument that ties up so many details. The problem is that Juarez wouldn’t cooperate with your theory. Here’s what he said happened that day – on direct examination, by the way:

    Juarez testified that as Aldrete-Davila exited the ditch and approached Compean, Aldrete-Davila’s hands were raised …

    “like he was trying to block him [Compean]… He [Aldrete-Davila] attempted to block it with his hand. Then he moves, and then he ran towards the levee.”
    (Vol VIII, pp. 173-178)

    Thus, according to Juarez’s description, Aldrete-Davila was engaged in a blocking motion rather than a surrender when he reached the top of the drainage ditch and faced Compean. I concede that in different interviews and statements, Juarez told different versions of what happened that day but I don’t see how this version that he told at trial supports Aldrete-Davila’s story or undermines Compean’s version.

    For whatever reason, the jury believed Aldrete-Davila and did not believe Ramos and Compean. I respect that and I’m not trying to substitute my judgment for the jury’s evaluation of the credibility of the witnesses or the truth of what happened that day. But this verdict still surprises me.

    DRJ (8b9d41)

  33. WLS,

    In support of your argument, Juarez also testified that Aldrete-Davila’s hands were “already raised” when he reached Compean. It could reasonably be argued that Juarez meant that Aldrete-Davila’s hands were raised to surrender and that he subsequently moved them into a blocking motion (as you suggest) in order to block Compean’s shotgun. If that’s what Juarez intended to say, however, the prosecutor had to lead the witness to get it out of him. See Vol. VIII, pp. 173-178.

    DRJ (8b9d41)

  34. One problem with trying to interpret a trial record from a written transcript is what you find here — the witness is demonstrating with his arms and body movements many of the things he saw. The jury saw all that and put his words into the context of his movements. It was probably much clearer to the jury what Juarez was describing than it is to us reading the transcript where Juarez says things like “He tried to block him like this” or “He missed and fell like this.”

    I think its fair to interpret those remarks in the light most favorable to what the jury ultimately concluded. That’s why I come down on the side of the version that says Compean purposely and without provocation tried to hit A-D across the face with the butt of his shotgun at Ramos’ urging (someone yelled “hit him” and Juarez doesn’t seem to be that guy); Compean lost his balance and fell face first into a dirty little irrigation ditch and dropped his shotgun into the water; Compean is a heavy-set little guy who had no chance to chase A-D down after A-D got such a headstart on him heading back to Mexico; and Compean, being pissed off and realizing that A-D was going to escape, pulls out his handgun and starts firing at a substantial distance with little meaningful chance of hitting him (0-14), whereas Ramos, being a much better trained marksmen with his handgun, fires one shot and hits him.

    Ramos shot because Compean fired 14 times. Ramos was probably justified in thinking Compean had some reason for shooting.

    And, as I said months ago when we first went down the road on this case, Ramos should blame Compean for the time he has to spend in jail.

    But, if either would have simply owned up to the shooting, it would have been cleared as justified within 48 hours and no one would have ever looked at it again.

    Their lies and coverup is what kept the investigators digging.

    wls (a15ff1)

  35. Responding to WSJ. Yes, I do think that a Deputy Assistant Attorney General (DAAG) in the Criminal Division does outrank a U.S. Attorney, albeit, with certain limitations. Both a U.S. Attorney and a DAAG are Presidential appointments. The “political” DAAG’s are “appointed” by Congress by consent, as are the “career” DAAGs. I have served under Clinton-appointed DAAGs, whom I am sadly forced to announce that were truly more competent than the Bush, Jr., appointments. Nonetheless, a DAAG has to authorize many undertaking by a U.S. Attorney. In the normal sense of the affair, that means that a DAAG, acting in the name of the Assistant Attorney General of the Criminal Division, does in fact out-rank a U.S. Attorney. Leaving aside the ego issues (which are more than plenty!), a DAAG can (and have, on many occasions) refuse to authorize Title III wiretap (even though “his/her” reasons are completely non-understandable), Compulsion Orders (immunities), attorney subpoenas, etc. I, personally, don’t have a big problem with any of this – since I have enough OTHER issues about DOJ unwillingness to address the integrity of DOJ failings (so-called “Main Justice”).

    You might, however, notice that I have NOT attacked the reasoning of the U.S. Attorney to grant immunity to the Aldrete, nor of the analysis of DRJ about the overall circumstances. Bad cops are an indictment of the system as a whole. I have been there when other prosecutors have shopped their “bad cop” cases to whomever was willing to sacrifice their “personal reputation” to a particular case. A “bad cop” MUST be prosecuted — it preserves the integrity of the system, as a whole. It is precisely THIS integrity that MUST be preserved, but not at the cost of sending innocent cops/defendants to jail to further some idiot’s political career. Do I think that Nifong should have been disbarred? Absolutely!!!! He violated EVERY tenant of the creed that prosecutors MUST adhere too (but that’s a different topic).

    But, yes, WSJ, you are correct in pointing out that there is no formal “ranking” placing a DAAG “above” a U.S. Attorney. As my earlier posts have indicated, I am willing to admit my errors. But in this, given the rather significant number of issues that DOJ must “prior-approve,” I am somewhat surprised that transactional immunity is not one of them. As I have suggested earlier, the granting of transactional immunity is a rather broad and expansive power, far beyond the frequently beyond the trivial prior-approvals required by DOJ. Although I do not suffer from any particular “crimes” that I would like to have transactional immunity for, the opportunity to gain such immunity would cause me to think long and hard so that I could go into court and spill my guts about EVERY “bad” thing I have ever done.

    509th Bob (a6cda0)

  36. BTW, I have taken government-owned ink-pens home and used them for my personal use. Will someone please grant me “informal” transactional immunity for my “crimes”?

    509th Bob (a6cda0)

  37. The jury had two versions it heard. One version came from a drug dealer — but it had all the earmarks of being true. The other version came from two BP officers — but it had was beset by internal contradictions and conflicts with other evidence.

    Fair enough. It does not change the basic facts. Two border patrol agents shot a smuggler who was smuggling who knew what across our border. (That’s the prosecution case BTW. The agents did not know whether it was 740 pounds of marijuana or 740 pounds of plutonium until afertward.) He resisted, actually fought them, ran, they shot him in the ass, and he still got away.

    Zadvydas v. Davis has nothing to do with this case. Nobody was looking to detain a criminal illegal alien indefinitely until a country could be found to accept him (but that would of course be a violation of his Constitutional rights so we must release him out into society. Has Patterico been posting something about this lately?). Garner v. Tennessee is close but no cigar. Fourth Amendment protection is not the same at the border. Flores-Montano v. United States is probably more on point.

    This President has no interest in protecting our southern border and his appointee, Johnny Sutton, is carrying out that policy.

    nk (channeling Adolph Hitler) (37689a)

  38. Damn! I forgot to take out “channeling Adolph Hitler” from my URL from a cookie. Oh, well, take it as a Freudian slip if you like.

    nk (37689a)

  39. You’re right, WLS, and I agree that you’ve stated what the jury was probably thinking. I hope you don’t mind if I join you in speculating about what happened here:

    Juarez said he thought Aldrete-Davila was no threat and I believe him, but isn’t that a ludicrous statement? In law enforcement, anyone is a threat until they are in custody or out-of-range. Juarez said he “figured” that Aldrete-Davila just wanted to go back to Mexico. Perhaps he felt that way because, up until this incident, Juarez had spent all day, every day “pushing back” illegal immigrants. Getting illegals to go back to Mexico was how he did his job. So maybe Juarez’s conditioned response to push back illegals is the reason he did not react to Aldrete-Davila’s actions, rather than because Aldrete-Davila posed no threat.

    In addition, Aldrete-Davila testified he believed the agents wouldn’t shoot him, and I think that – not his fear of being hit with a shotgun – explains his willingness to keep running. It is equally plausible as your scenario that Aldrete-Davila genuinely started to surrender or feigned surrender while he was in the drainage ditch, only to get to the top of the ditch where he realized Compean was short and overweight and Aldrete-Davila could outrun Compean. The only danger Aldrete-Davila faced was getting shot and he wasn’t afraid of that. (Why not? Perhaps because he was experienced at this. I still doubt that any drug smuggler will trust a large, expensive drug load to a solo novice.)

    Finally, Ramos and Compean were experienced agents who knew the supervisors wanted the agents to do more than catch drug loads; The supervisors also wanted their agents to apprehend the drug smugglers. Ramos and Compean may very well have been angry at themselves for letting Aldrete-Davila get away. Rather than an intent to cover up, their pride and a habit of minimal/no reporting could explain why they failed to report what happened. It would also explain what a dismal job they did at covering this up, including the fact that Compean soon told Vasquez about the shooting and that neither Ramos nor Compean provided a credible cover story that explained why the other agents might have heard shots.

    Anyway, this is all idle speculation and I’m curious if anyone knows how the hearings went today. I don’t think they were televised but I did see one brief update about it on Fox News, and I’ve seen reports that Johnny Sutton will be on Hannity & Colmes tonight and Laura Ingraham tomorrow.

    DRJ (bea74b)

  40. Any chance at getting a bullet-point version?

    That post looks like it would take 40 minutes to read.

    Heaven knows how long it took to compose.
    Thanks for the hard work.

    anon (ee14f7)

  41. sorry i’m an idiot.
    it looks like patterico did the bullet points over at hotair.com

    anon (ee14f7)

  42. 509th Bob — I think if you look at the organizational chart of DOJ, you see that the US Attorneys fall under the DAG, and they are not under the Criminal Division. They do not report to, nor are they supervised by the AAG of the Criminal Division or any other AAG.

    But, as I noted, and I think we agree, many powers of the AG are delegated to the AAG of the Criminal Division (such as T-III auth through OEO), so US Attorneys must get approval from the AAG as the delegatee of the AG, not by virtue of their superior position in the DOJ hierarchy.

    Finally, with respect to the various talents of AAGs and Dep. AAGs of the last two presidential administrations, I think you would agree that you need to compare the two sets at two common points in time. The last two years of the Reno Justice Dept. were full of just as many mediocre “climbers” as the current Gonzalez Justice Dept. The sad fact is that the “best and brightest” that get those slots in the first couple years of a new administration have long since cashed-in with jobs in private practice or federal judgeships. That’s the nature of the beast.

    wls (a15ff1)

  43. Ramos was lied to and told that forensics proved that it was his bullet that was pulled out of Davila. Ramos never denied that he fired a shot so he agreed to “stipulate” to something he was unaware was a lie.

    Source: J Curtis’s ass.

    Anything else you want to pull out your ass with no citation, J Curtis?

    As far as I am concerned, you are operating as a smear artist here. Harsh? You betcha — but you have a track record.

    Patterico (2a65a5)

  44. #36 – 509thBob,
    This sovereign citizen/taxpayer absolves you of any liability for the conversion of government property to personal use. I think I heard the President say, “Why don’t you take a few of these pens?” once, and I’m sure you were listening too.

    On the Juarez testimony, wasn’t there a report early on that he and A-D had a connection? That after the shooting, A-D was quartered in a house of someone connected to Juarez and provided medical attention? Could they have co-ordinated their stories at that time?

    Just curious.

    I personally think these two guys got royally shafted by their own government, which is doing all it can to erase any evidence of a border between the US and Mexico. If the suits will do this to a “cop”, what won’t they do to Joe Six-pack?

    Another Drew (8018ee)

  45. I’m not a lawyer, but after seeing the hearings today, and Johnny Sutton then vigorously defending the prosecution on Lou Dobb’s TV hot seat, I thought “What a country!”

    Seriously. Some people are trying to correct an injustice in a lawful, gentlemanly way; nobody is killing each other or in fear of being sent to Siberia. It was great to watch.

    (To me, it sounds like a pardon or commutation is in the offing. Bush will say that it’s on the recommendation of the Senate, blah, blah.)

    Patricia (824fa1)

  46. Bush could easily knock off the 10 year portion of the sentence with no heartburn, and then point the finger directly at Congress since that part of their sentence is a term made mandatory by the statute that Congress passed.

    I think he’d be wrong to do it, but it would be justifiable in the prevailing climate.

    And, Lou Dobbs is a clueless ass. I’ve also sworn off Glenn Beck as well for his constant mischaracterizations as to what happened.

    wls (a15ff1)

  47. Where is the forensic evidence tying the bullets to one of their guns. How can two people shoot a man once? No one in America gets convicted without a forensic match. Where is it?

    Ron Reale (bc5dc9)

  48. wls,
    I wasn’t implying Dobbs was correct; I only meant it was greatifying to see people arguing instead of shooting/bombing on issues of the day.

    Patricia (824fa1)

  49. but you have a track record.

    …for the truth. If you are implying something else, back it up.

    The ( March 15 )complaint against Ramos and Compean says Ramos had a 96D Beretta 40-caliber automatic pistol, serial number BER067069M, which fired a 40-caliber Smith & Wesson jacketed hollow point bullet into the left buttocks of Aldrete.

    But the ballistics report ( Dated March 17, 2005 ) states: “The copper-jacketed bullet was fired from a barrel having six lands and grooves inclined to the right. The manufacturer of the firearm that fired the copper-jacketed bullet is unknown, but could include commonly encountered models of 40 S&W (Smith & Wesson) caliber FN/Browning, Beretta, heckler & Koch, and Ruger pistols.”

    Meaning, while the report did not rule out the possibility that Ramos gun could have fired that particular bullet, it did not conclusively say it did.

    http://www.foxnews.com/story/0,2933,248705,00.html

    Now here’s Sutton’s explanation to FOX:

    But Sutton said a later ( After March 17 ) ballistics report confirmed that the bullet came from Ramos’ gun.

    Oh, and one other thing–Sanchez didn’t even have Ramos’s weapon until the morning of March 18. That is when he went to Ramos and took the gun from him.

    10 A. I believe Ignacio Ramos was on regular day off. Oscar
    11 Juarez was on a regular day off, and Mr. Compean was on annual
    12 leave.
    13 Q. So you didn’t get their weapons on that date. Is that
    14 correct?
    15 A. No, ma’am.
    16 Q. Were you able to get their weapons at some point in time?
    17 A. Yes, ma’am.
    18 Q. Okay. And when was that?
    19 A. On March — I believe it was the morning of March 18th,
    20 Mr. Ramos’s weapon — the agents went to his house and were
    21 able to obtain the weapon. And that was immediately submitted
    22 to the crime lab.
    23 Q. Okay. And was the Texas Department of Public Safety crime
    24 lab able to match the bullet with a weapon?
    25 A. Yes, ma’am.
    David A. Perez, CSR, RPR
    C. Sanchez – Direct by Ms. Kanof 282
    1 Q. And who was assigned that weapon on February — that the
    2 bullet matched — on February 17th?
    3 A. Ignacio Ramos.
    4 Q. And is that the first time you knew who had shot Osvaldo
    5 Davila?
    6 A. Yes, ma’am.

    Here’s the timeline:

    March 15th: Sanchez swears in an affidavit filed in court that a ballistics test proved that the bullet could have only come from Ramos’ gun.

    March 17th: The bullet is sent to its first ballistics test. The bullet was not matched to any one particular gun. In fact, it wasn’t even narrowed down to the make and model of any particular gun. It couldn’t have been matched to Ramos’ gun because they didn’t have his gun yet. Sanchez insists under oath during the trial that this is when he learned that it was Ramos’ gun that fired the shot.

    March 18th: Sanchez finally goes to get Ramos’ gun.

    Sometime after March 18th: According to Sutton, the ballistics test sworn to on March 15th finally happens all these days or weeks later. No documents have been ( or will be ) made public to show that this test actually happened.

    J Curtis (ecc9cc)

  50. Ramos was lied to and told that forensics proved that it was his bullet that was pulled out of Davila. Ramos never denied that he fired a shot so he agreed to “stipulate” to something he was unaware was a lie.

    Source: still J Curtis’s ass.

    Patterico (2a65a5)

  51. This is great:

    http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=53976

    In an affidavit filed by DHS March 15, 2005, with the U.S. District Court in the Western District of Texas, special agent Christopher R. Sanchez swore the following:

    Ballistics testing confirms a government-issued weapon belonging to U.S. Border Patrol Agent Ignacio “Nacho” Ramos, a 96D Beretta .40 caliber automatic pistol, serial number BER067069M, fired a bullet (a .40 caliber Smith & Wesson jacketed hollow point) which hit the victim in the left buttocks while he was attempting to flee to Mexico.

    The bullet was removed from Davila’s hip the next day, March 16th.

    Beware the ides of March.

    J Curtis (ecc9cc)

  52. I’m not sure why I bother, but just to put J Curtis on the spot, here are the ACTUAL facts and sequence of events on the ballistics testing. I’m always amazed at how websites like WND and Friends of the Border Patrol can make such blatant fabrications of documents that have dates stamped on them.

    First, the date of the Criminal Complaint, which is supported by the Sanchez affidavit referencing ballistics is March 18, not March 15.

    Second, the first DPS report is not a report on Ramos’ gun, but only on the bullet removed from A-D. It was removed on March 16, and was submitted to Tex. DPS for analysis on March 17. Its called a “BULLET Analysis.”

    It is DHS policy — and DOJ policy as well I believe — that before you test an agent’s weapon under these circumstances you should first confirm that the agent’s weapon might possibly have been involved. The initial ballistics report was for no other purpose than to determine if the bullet removed from A-D was of a caliber and type that might have been fired from a S&W 40 cal. such as the one carried by Ramos. The written BULLET analysis from the DPS lab was dated 3/18.

    The other EP Station BP agents’ guns were swapped out on 3/17, and Ramos and Compean’s guns were swapped out on 3/18.

    The BALLISTICS analysis report from DPS matching Ramos gun to the A-D bullet is dated 4/13.

    But that is the written report. Sanchez swore in his affidavit in support of the criminal complaint that “ballistics testing” confirmed the match of the bullet to Ramos’ weapon.

    He’s not referring to the report, and a ballistics test can be accomplished in a matter of minutes by a criminalist, and his analysis can be reported orally or in a phone call.

    Sorry, but those are the facts.

    http://www.dhs.gov/xoig/assets/OIG_foia_RamosCompean.pdf

    wls (a15ff1)

  53. First, the date of the Criminal Complaint, which is supported by the Sanchez affidavit referencing ballistics is March 18, not March 15.

    Ahhh, okay then…can you show me a copy of that affidavit? I couldn’t find it anywhere in your link. If Corsi is lying, as you claim, then that is interesting since he has done 99% of all the reporting on this case. If he could show that the affidavit was filed on March 15th, this case would reach a level of scandal never seen before.

    Second, the first DPS report is not a report on Ramos’ gun, but only on the bullet removed from A-D. It was removed on March 16, and was submitted to Tex. DPS for analysis on March 17. Its called a “BULLET Analysis.”

    The BALLISTICS analysis report from DPS matching Ramos gun to the A-D bullet is dated 4/13.

    But you are claiming that the BALLISTICS analysis was done on the same day as the BULLET analysis, aren’t you? Why is the ballistics analysis dated a month later? Isn’t the BALLISTICS analysis the important one for which they’d want to have documentation so as to proceed with the case?

    Have you seen this report and can you tell me who signed the report? If so, please link.

    J Curtis (ecc9cc)

  54. correction

    Actually, I guess you are claiming the ballistics analysis happened the day after the bullet analysis, is that correct?

    Let me also address your nervously dismissive “I don’t know why I bother” remark–

    The discrepancy I exposed is meaningful for one of three reasons:

    1. It shows a criminal action by our government to falsify evidence

    or

    2. It catches the most famous advocate for Ramos and Compean in an incredibly embarrassing lie that the smuggler lovers could use against the Border Patrol backers forever.

    or

    3. It shows a terrible error reported in the media which needs to be corrected. That should be meaningful on this particular website.

    J Curtis (ecc9cc)

  55. J Curtis — I’ll credit you for being genuinely interested in “discrepancies” that Corsi claims exist. But, rather than simply link to Corsi, I would think you would make some effort to track down actual facts themselves. The WND reporting on this is awful.

    As to the Criminal Complaint and Affidavit, I think there are 2 or 3 copies in the document I linked. Look specifically at Page 57 — that’s the Criminal Complaint signed by Magistrate Judge Richard Mesa on March 18. At the top of the page it is file-stamped by the Court Clerk’s Office on March 21 — I suspect that it you looked at a calendar you would find that March 18 was a Friday. Ramos was arrested at 9:30 pm on March 18 after the Complaint was signed, which leads me to suspect this was an “after-hours” complaint — signed by the Judge after close of business on Friday — and was filed with the Clerk’s Office on Monday.

    Pages 58 and 59 are the Affidavit of Sanchez attached to the complaint. Sanchez’s name is redacted, but its a known fact that he was the affiant on the complaint.

    wls (a15ff1)

  56. I’m still not finding the ballistics report. I found an assertion of the existence of a ballistics report that was supposedly released a month after an affidavit that attests to the findings of the report was sworn to.

    I’m more interested in the evidence that backs up the assertions than the assertions themselves.

    J Curtis (ecc9cc)

  57. J Curtis,

    Regarding the date the criminal complaint was issued, look at page 41 of WLS’s link which shows a Memorandum of Activity (Arrest of Ignacio Ramos) dated March 24, 2005. The second paragraph references the criminal complaint signed by Judge Mesa on March 18, 2005. Page 42 is the complaint itself that was signed March 18, 2005, by the Complainant (C. Sanchez) and the Judge, and was file-stamped March 21, 2005. I agree with WLS that the criminal complaint was probably file-stamped on March 21, 2005 because this was the next business day that the Clerk’s office was open.

    As for the ballistics/gun testing, it’s my recollection that forensic testing was done by the Texas DPS crime lab at its El Paso forensic firearms testing lab. I’m not a big fan of this prosecution but I have a hard time believing the federal government would or could convince the Texas DPS to render counterfeit ballistics and/or weapons reports.

    DRJ (bea74b)

  58. As for the ballistics/gun testing, it’s my recollection that forensic testing was done by the Texas DPS crime lab at its El Paso forensic firearms testing lab.

    Have you seen this ballistics report that was rumored to have been filed on 4/13/05, a month after the bullet analysis?

    I seems WND mistakenly reported that the affidavit was March 15 when it was actually March 18 unless DHS went and changed the dates after WND got their copy or unless there was more than one affidavit with some of the same items on it. That seems unlikely but unfortunately because of the other timeline problem with the ballistics, it doesn’t seem impossible.

    J Curtis (ecc9cc)

  59. J Curtis — Sanchez can include in his affidavit anything the criminalist tells him in a telephone call, not just what is in a written ballistics report. The criminalist simply compares the two bullets — one from A-D’s butt, and the other test-fired from Ramos’ gun — under a microscope and forms an opinion as to whether there is a match. He can then pick up the telephone and tell Sanchez what he found, and Sancez can then put that in his affidavit.

    When a written report is prepared — whether a month later or a year later — is irrelevant to whether ballistics testing was done and what the results were.

    As to the file-stamped date, that’s not put on there by DHS — its stamped on by the Court Clerk of the Western District of Texas. The March 18 date is handwritten in by the Magistrate Judge and reflects that the affiant — Sanchez — personally appeared before the judge on that date and swore under penalty of perjury that the contents of his affidavit, attached to the complaint, were true and correct.

    This is all standard stuff, and to suggest that DHS somehow has tampered with the dates in furtherance of some grand conspiracy is simply moon-bat conspiracy crapola, and deserves to be ridiculed as such.

    So, go pound on Corsi for getting his facts wrong.

    As for the ballistics reports — keep in mind that one is a BULLET analysis and not a ballistics report. A bullet analysis simply reflects the characteristics of the bullet in question — its caliber, composition, and likely jacketing. It does not try to match it to any particular gun, but it can eliminate a whole range of handguns as having fired it.

    For example, if the bullet taken from A-D’s butt had been a .45 caliber slug, that would have excluded all the Border Patrol agents since they all carry .40 caliber weapons.

    The ballistics reports were not included in the pdf file of the DHS internal report that I was able to find on the net. I don’t think I’ve ever seen the actual reports, but more significantly, notwithstanding all the claims they HAVE made, I don’t recall seeing any member of the defense team ever claim that it was NOT Ramos’ weapon that fired the round taken from A-D’s butt.

    wls (a15ff1)

  60. wls,

    I am interested in your take on the Amicus Brief filed by the Gun Owner’s of America along with others. It addresses the charges pertaining to the guns. http://www.wjopc.com/site/constitutional/RamosCompean.pdf

    I can’t make the link thing work for some reason.

    Jerri Lynn Ward (9f83e6)

  61. 59

    It was the rumored ballistics analysis that was the basis for getting the arrest warrant on Ramos( pdf pg 17/77 of the link you provided ). That would seem to make it kind of an important document and something DHS would want to have its hands on as soon as possible. In fact, such a thing would be their most important piece of evidence even without considering the fact that the supposed shooter shot less than 10% of the bullets at the suspect and all of the bullets, according to the government, were fired with the intention of killing the smuggler. A funny thing to just brush aside for a month.

    J Curtis (ecc9cc)

  62. DRJ,

    Down where at you’re at, do you use the term “bordersnakes” or is it something some writer invented?

    nk (37689a)

  63. I’ve never heard the term bordersnakes and, when I search for it, it comes back with multiple links to a book by that name. What does it mean and where did you hear it?

    DRJ (bea74b)

  64. J Curtis — are you just incapable of understanding that a criminalist can ORALLY communicate to the agent the results of the examination, and its not necessary for the case agent to await a written report??

    Here’s how it goes:

    “Sanchez: Hey Fred, have you had a chance to test-fire Ramos’ gun to get a ballistic comparison to the bullet from A-D?

    Fred: Yeah Sanchez, I was just looking at the two side-by-side under the microscope.

    Sanchez: What do you think?

    Fred: The slug from A-D’s butt matches the slug I fired 10 minutes ago from Ramos’ gun.

    Sanchez: Its a match? Are you sure.

    Fred: Yeah, I’m sure. I’ll have the report done in a few weeks.

    Sanchez: Thanks. Bye.

    Fred: Bye.”

    Sanchez then types in his affidavit: “Ballistics testing matched the slug removed from A-D’s butt to the service revolver carried by Ramos, a S&W .40 caliber semi-auto handgun, serial no. XYZ123.”

    That’s it. End of story. Criminal complaint signed, arrest warrant issued, Ramos arrested.

    Having a written report in hand IS NOT NECESSARY. In fact, when I was prosecuting drug cases, we wouldn’t even ask for qualititative testing (purity) of drugs until we were certain that a case was going to trial. If we hadn’t asked for it that certainly meant we didn’t have a written report on purity. It might not ever be necessary because the defendant often stipulated to the purity, especially if they pled guilty.

    So, you’re reading WAY TOO much into the dates on these documents. The only important fact it that the ballistics testing was done, and the results of the testing was communicated to Sanchez in SOME FORM on or before March 18.

    wls (a15ff1)

  65. In that book, by James Crumley. (Excellent detective writer, I highly recommend him but his earlier stuff, “The Wrong Case” and “The Last Good Kiss” is still his best.) He used the term to describe the drug-runners who operate back and forth across the border with impunity.

    nk (37689a)

  66. Bordersnakes conjures up the image of a rattlesnake whose habitat is on the border so that makes it a good term for border smugglers. Wiki says Mr. Crumley is from Three Rivers TX in South Texas. Either he invented the term or it’s a South Texas colloquialism. It might be the latter since South Texas has faced border problems for a long time.

    DRJ (bea74b)

  67. Jerri Lynn:

    Its an interesting debating point but not much more. In Harris the Supreme Court held that charging a defendant with “using” or “carrying” a firearm under 924(c) subjected him to the three potential penalties of 5, 7, or 10 years depending on judicial factfinding at sentencing. This decision departed from a case a few years earlier called Jones, involving a similar question under the federal carjacking statute, which came to an opposite decision in its statutory construction analysis.

    The brief is trying to reverse engineer this analysis, and I think its ultimately meaningless.

    In Harris the Court said “Charge “use” or “carry” and you can get a longer sentence if the court finds the gun was brandished or discharged.”

    The brief here is claiming that by charging “discharge” rather than “use”, they have failed to list and element of the offense.

    But, “discharge” is a term Congress put in the statute to describe one type of “use” of a firearm. It certainly doesn’t describe “carrying” a firearm, so if the evidence was that they only carried their guns, and were charged in the indictment with unlawfully “discharging” their firearm, then I think they might have a claim based on lack of notice.

    But, here they were charged with “discharging” which is certainly a “use” of a firearm. So, were they charged with every element of the crime? The Supreme Court has never required “verbatim” tracking of statutory language in a charging document — only the pleading of facts that, if true, satisfy each element of the crime as defined by Congress.

    They were charged with “discharging” a firearm, which factually meets the element requirement that the firearm have been “used.”

    wls (a15ff1)

  68. Fred: Yeah, I’m sure. I’ll have the report done in a few weeks.

    If it was as easy as you make it out to be, why so long for the report? The written bullet analysis was completed in a matter of hours.

    I would have thought that a written report carried more weight than hearsay, but I’m not a lawyer. Still, it’s hard to imagine a judge preferring to get this information second-hand by word of mouth relay.

    I’d hate to rely on hearsay coming out of Sanchez’s mouth. Here’s a guy who claimed that Davila was shot entering the US on most of his investigation reports right up to trial time. If you don’t believe me, just go to the link you provided at #52 and see for yourself.

    J Curtis (ecc9cc)

  69. Good for Cornyn (and Feinstein):

    Washington, DC – U.S. Senators Dianne Feinstein (D-Calif.) and John Cornyn (R-Texas) today asked President Bush to commute the sentences of former Border Patrol Agents Ignacio Ramos and Jose Alonso Compean.

    There’s a lot more at the link.

    DRJ (bea74b)

  70. This section of the Cornyn/Feinstein letter (almost) confirms there was a second Aldrete-Davila drug smuggling incident:

    # “Despite the fact that this incident occurred while Aldrete-Davila was transporting 743 pounds of marijuana, the prosecution gave him a border crossing pass that allowed him to enter the U.S. legally, without notifying U.S. authorities and without supervision;

    # There is evidence that while using this pass Aldrete-Davila entered the United States on 10 occasions in the eight months, and on at least one occasion he was wholly unsupervised;

    # There is evidence that during one of these crossings Aldrete-Davila entered the United States and again transported a large quantity of marijuana – perhaps as much as 750 pounds;

    # There is evidence that this second transportation of drugs occurred on the eve of his admission to a United States Military hospital for treatment that the prosecutor specially arranged. If true, this means he used his immunity to further harm the United States – yet nothing was done to revoke his immunity and prosecutors continued to treat him as a “victim”;

    # We know that the jury was barred from hearing any evidence about Aldrete-Davila’s second drug load and instead, the prosecutor was able to argue in closing statements that Aldrete-Davila had run from border agents just because he wanted to get home.”

    DRJ (bea74b)

  71. # There is evidence that this second transportation of drugs occurred on the eve of his admission to a United States Military hospital for treatment that the prosecutor specially arranged. If true, this means he used his immunity to further harm the United States – yet nothing was done to revoke his immunity and prosecutors continued to treat him as a “victim”;

    Maybe they were reading an earlier thread on this website when wls brought this astonishing bit of information out in the open. Bravo, dude!

    J Curtis (ecc9cc)

  72. wls et al…
    The proper nomenclature for the caliber of the weapon carried by the BP is “.40S&W”.

    Inserting Smith & Wesson ahead of the .40 implies that the weapon is manufactured by S & W, when we know that the BP weapons are/were Beretta’s.

    Just a small nit. Sorry.

    Another Drew (8018ee)

  73. J Curtis — small but significant point.

    The Federal Rules of Evidence, including the Rule against admitting hearsay, don’t apply to pre-trial proceedings. The Rules only apply when questions of guilt and innocence are being determined.

    There is no prohibition against the use of hearsay in a criminal complaint or before a grand jury. In fact, using the case agent to summarize the testimony of just about every potential government witness, including expert witness testimony, is standard practice.

    So, if the expert tells Sanchez over the phone that the ballistics is a match, there is absolutely no reason why a magistrate should not rely on that as evidence in a preliminary matter like issuing a criminal complaint.

    wls (a15ff1)

  74. I’m a first time poster and new to this whole issue. I’m a retired lawyer, but had no criminal experience. I admit at the getgo that I have been somewhat shocked by reading many posts on other sites that have no problem with a border agent shooting to kill anyone who runs away under any circumstances.

    I have read with interest all the posts above and enjoyed the intelligence and analysis generally presented.

    I had one question, perhaps for DRJ, that I haven’t seen mentioned. Why didn’t Campeon and Ramos just go and arrest this guy after he had fallen following being hit by Ramos. It seems he was still on the US side of the river. What was their testimony on that?

    JayHub (8ba390)

  75. JayHub,

    Welcome. It’s good to have a new perspective join the discussion.

    To answer to your question, I’ve reprinted below my summary of Ramos’ testimony from Volume XII of the trial transcript. (The numbers are the page numbers where you can find the testimony.) I think the short answer is that, according to their testimony, Ramos and Compean did not see Aldrete-Davila until he exited on the Mexican side of the river and at that point they couldn’t legally arrest him.

    As I recall, Aldrete-Davila testified on direct that he fell after he was shot and that he waited to be arrested, but Ramos and Compean turned and left. However, also on direct, Aldrete-Davila testified that he ran until he was shot and then fell twice, both times in the river. (Volume XIII, page 39) As you probably know, the river is the border between the US and Mexico. If Ramos and Compean saw Aldrete-Davila in the river, they may not have had the ability or authority to arrest him.

    Here’s what Ramos said:

    205-207 – Ramos heard gunshots while he was in the ditch. He did not hear any more gunshots after he got out of the ditch. Ramos saw Compean “on the floor” – Compean wasn’t standing but Ramos doesn’t remember his exact position except that Compean wasn’t on his back. Ramos thought Compean had been shot or injured. Ramos immediately looked for the suspect and saw him running away from Compean. Ramos ran after him because he wanted to catch him.

    207-208 – Ramos took his gun out of his holster again as soon as he cleared the ditch. He yelled Parate as he chased the suspect. Ramos had his gun in his hand but it was not pointed at the suspect because Ramos was running. As soon as Ramos yelled Parate, the suspect turned and went “like this” to Ramos. [Ramos demonstrated what the suspect did. The Court noted that the record should reflect Ramos demonstrated turning around and shooting backwards with his left hand.]

    208-209 – On that day, at that time, Ramos was 100% sure that the suspect had a gun in his hand. Looking back on it, Ramos isn’t sure if the suspect had a gun but Ramos thinks he had something in his hand.

    209 – When the suspect made the motion of shooting backwards, Ramos picked up his gun and fired one time. Ramos didn’t see any immediate reaction because he was looking through his sites and not directly at the suspect.

    210 – It was a matter of seconds from the time Ramos saw Compean run and Ramos shot.

    210-211 – Immediately after he shot, Ramos picked up his gun and reassessed his target but he didn’t see the suspect. At the time Ramos shot, the suspect was at the edge of the river. [The Court sustained a prosecution objection – leading – to a question asking if the suspect “went down.”] Ramos would have seen the suspect if he had gone down because the brush in that area is low. Ramos thought the suspect was still a threat because he didn’t know where he was. Ramos held his gun in ready position [demonstrating] as he looked for the suspect.

    211-212 – Ramos thought the suspect was in the river because he could not see all the river due to the brush along the bank. Ramos watched for the suspect until he saw him get out of the river on the Mexican side.

    DRJ (bea74b)

  76. JayHub,

    Here’s my summary of Compean’s direct testimony from Vol. XIII:

    164 – Compean did not see Ramos shoot but he heard the shot, looked over, and saw Ramos standing there.

    164 – Compean finished loading the magazine in his gun and walked slowly toward Ramos. Compean never saw the driver after that. Before that, he last saw the driver near the edge of the river but he was gone when Compean looked again.

    164-165 – Ramos and Compean kept their weapons pointed toward the river the whole time they were looking for the driver. They didn’t holster their weapons until they saw the driver was out of the area.

    165 – Ramos asked Compean if he was okay. Then they turned around and started walking back up. Compean stopped a couple of times and looked south for the driver, to see if he was coming back or going to do anything else.

    I don’t have time right now to look further through the transcript. I hope this helps.

    DRJ (bea74b)

  77. Thanks for the response, DRJ, the question had puzzled me, but it sounds like he was in the river in which case they could not pursue further.

    JayHub (8ba390)

  78. What if he he had one foot in the US and one foot in Mexico or neutral territory? Could a border agent cuff the foot that is in the US? What if the suspect gets into a tug-o-war with the agent who has his American foot cuffed and manages to pull the agent into Mexico or neutral territory? Would the agent then have to uncuff him?

    Those sound like some absurd questions I’m sure, but if a felon escaping to Mexico did stand there straddling the border and laughing at the agents, the agents couldn’t touch him. What an occupation.

    Johnny Sutton insists in his “fact sheet” that the agents should have played this ‘one foot in, one foot out’ game with Davila. I’m not even sure they would have been allowed to return fire if Davila shot at them as they walked down there if Davila had his pinky toe in Mexico.

    J Curtis (ecc9cc)

  79. Once you’re in the river, it’s sort of a no-man’s land, because without the services of a surveyor, you just don’t know where the geographical boundary is.
    Historically (IIRC), if you couldn’t apprehend them on the bank and they got into the water going to the other side, all you could do was watch.
    The course of the river is constantly changing. Some changes have actually required treaties between the USA and Mexico to reflect the actuality of what is “on-the-ground” vs what the maps show.
    This also applies to boudaries between states within the US.

    Another Drew (8018ee)

  80. 74 77

    It is my theory that Ramos (like Compean) was not trying to hit OAD when he shot at him but OAD swerved toward the river as Ramos shot and was hit and knocked over. Ramos was in shock for a few minutes giving OAD time to get up and escape. Ramos and Compean decided they would rather not explain how OAD got shot and hoped if they didn’t report it the whole thing would go away.

    James B. Shearer (fc887e)

  81. New to this site and have enjoyed reading the details that you have included here and the many comments. Thank you and all commentors. Very enlightening. I still have a problem with the mere fact that those that protect our southern border are searched out and arrested for shooting a criminal drug smuggler weather or not he/she is a citizen of the United States. I suspect there are few countries in the world who prosecute border guards (who are few) when illegal drug smugglers are set free to continue their illegal business and corruption.

    Phyllis Robbins (031dd5)

  82. I missed this discussion earlier, but J. Curtis displays a fundamental misunderstanding of how Criminal Laboratory procedures operate. To answer Curtis’ questions regarding bullet and ballistics reports, I recommend J. Houde’s Crime Lab: A Guide for Nonscientists.

    In answer to your question about why it would take weeks or even months to produce a “formal” report, remember that a crime lab is a scientific endeavor. Physical evidence is just that, it doesn’t just vanish into thin air (except in exceptional circumstances). And even for items that are volatile, the criminalist will have all the pertinent details of examination recorded in a log. Then, depending on caseload and priorities, a report is generated describing the findings that is suitable for introduction as evidence in a criminal proceeding.

    EW1(SG) (84e813)

  83. 82

    Fine, give me the link to the ballistics report. If you cant give me a link to the ballistics report then quit with the precious educating.

    j curtis (ecc9cc)


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