[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.
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.
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.
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.
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?