Patterico's Pontifications

12/3/2007

Ramos-Compean Oral Argument Update (Updated x2)

Filed under: Law — DRJ @ 9:39 am



[Guest post by DRJ]

Oral argument in the Ramos-Compean appeal was heard this morning before three judges of the Fifth Circuit Court of Appeals in New Orleans. The Dallas Examiner filed this report:

“Federal prosecutors may have overreacted in their case against two Border Patrol agents who were sentenced to lengthy prison terms after they were convicting of shooting a fleeing drug suspect and hiding evidence of the incident, an appeals court judge said Monday.

“It does seem to me that the government overreacted here,” said Judge E. Grady Jolly, one of three judges of the 5th U.S. Circuit Court of Appeals hearing the case of Ignacio Ramos and Jose Alonso Compean.
***
Jolly, during questioning of [AUSA Mark] Stelmach, said that if the agents had reported the shooting as required, “this prosecution never would have occurred, in all likelihood.”

“For some reason, this one got out of hand, it seems to me,” Jolly added.”

Reaction from the attorneys was mixed:

“There was no indication when the judges would rule in the appeal, but Compean’s lawyer, Bob Baskett, said he was encouraged by Jolly’s comments. “They certainly were aware of the signficant issues in the case,” Baskett said after Monday’s hearing.

Ramos’ attorney, David Botsford, said he didn’t read anything into the judges’ remarks. “The court is going to follow the law,” he said outside the New Orleans courthouse.

Assistant U.S. Attorney Mark Stelmach declined to comment after the hearing.”

I don’t think this statement by Judge Jolly means he necessarily believes the conviction should be set aside but it probably made defense counsel happier than it made the US Attorney’s office.

— DRJ

UPDATE 12/3/2007 @ 1:50 PM PST: Here’s further context from a Houston Chronicle article that suggests Judge Jolly’s comments regarding whether it was appropriate to charge the agents with discharging a firearm during a crime of violence:

“It does seem to me like the government overreacted here,” said Judge E. Grady Jolly, questioning prosecutor Mark Stelmach before a crowded courtroom. “There were plenty of statutes you could have charged.”

Jolly asked whether Ramos or Compean would have been prosecuted if they had reported the shooting of Osvaldo Aldrete Davila, who was wounded on Feb. 17, 2005, near Fabens, southeast of El Paso. Compean picked up the shell casings at the scene of the shooting and neither agent volunteered to supervisors that they fired their weapon. “They are being prosecuted for hiding the crime,” Jolly said, suggesting the prosecution “got out of hand.”

Stelmach argued there was “balance in the treatment of the agents,” saying the judge could have given them stiffer sentences on other charges besides the firearm offense such as assault.
***
Attorneys for the former agents are pushing for a new trial, arguing the agents acted in self-defense. They also contend that Ramos and Compean were improperly charged with discharging a firearm during a crime of violence.

Bob Baskett, Compean’s attorney, said that statute should not be applied to law enforcement officers acting in the line of duty.”

UPDATE 2, 12/3/2007 @ 11:00 PM PST: Fox News reports Judge Higganbotham’s comments regarding the relevance of Aldrete-Davila’s other smuggling attempts:

“In exchange for his testimony against the agents, Aldrete was given immunity from prosecution for allegedly trying to smuggle drugs the day he was shot. Jurors didn’t hear evidence that Aldrete allegedly smuggled marijuana in the United States several months after the shooting.

Botsford said Judge Kathleen Cardone, who presided over the trial in El Paso, Tex., should have allowed jurors to hear evidence that Aldrete was “not a (drug) mule, a simple one-time (border) crosser.” “He basically left a false impression for that jury,” Botsford said of Aldrete.

Judge Patrick Higginbotham, who heard the appeal with Jolly and Judge Edward Prado, said evidence that Aldrete made multiple attempts to smuggle drugs across the border “strikes me as very relevant.”

[Prosecutor] Stelmach acknowledged that Aldrete told “some lies” to investigators, but he said jurors rejected the agents’ argument that they acted in self-defense when they shot at Aldrete.”

— DRJ

99 Responses to “Ramos-Compean Oral Argument Update (Updated x2)”

  1. Made me happy too.

    Kevin (4890ef)

  2. Hmm… not the crime, but the coverup. Seem to have heard that before . . .

    Joel Rosenberg (677e59)

  3. if the agents had reported the shooting as required, “this prosecution never would have occurred, in all likelihood.”

    Nonsense. Had Ramos and Compean filed a formal report ( which they aren’t supposed to do ), they would have ensured themselves of a trial with the same prosecutors and the same Mexican government demanding a prosecution. Also, Ramos and Compean and maybe their families would be dead ( BPETS->Rene Sanchez->Davila->Hunting Party ).

    It is the government’s contention that drug smugglers DO NOT carry firearms. Governor GW Bush of Texas came up with the brilliant idea of putting billboards on the border that reminded invaders that they aren’t allowed to bring guns with them. To say that this smuggler had a weapon would make Bush’s billboards the most lame-brained liberal idea ever hatched.

    j curtis (8bcca6)

  4. I have not seen a clear explanation of the context of the remark, but at its narrowest interpretation, the judge is commenting not on the legal basis for the convictions but on prosecutorial discretion. As prosecutorial discretion is outside of the control of the appellate court, it is not that encouraging a response for the defense I suspect.

    SPQR (26be8b)

  5. Had Ramos and Compean filed a formal report ( which they aren’t supposed to do )

    Take a look at their own testimony…

    6 Q. Now, let me show you Government’s Exhibit 75. Do you
    7 recognize that? Is this part of your firearms policy manual?
    8 A. Yes, sir.
    9 Q. And I’m referring you to page 21 of 64, Number 2 on that
    10 page. Doesn’t it tell you that you’re required to report a
    11 shooting within one hour?
    12 A. Yes, sir.
    13 Q. And you knew that it was your responsibility, correct?
    14 A. Yes, sir.
    15 Q. And you didn’t do that, did you?
    16 A. No, sir.
    17 Q. And, in fact, 29 days passed before anyone knew that you
    18 had shot. Is that true, sir?
    19 A. Yes, sir.
    **************
    25 Q. And you did not tell — you had two supervisors there at

    1 the scene, right?
    2 A. Right.
    3 Q. And you didn’t tell either of them, according to the
    4 policy, that you discharged your firearm?
    5 A. No.
    6 Q. And neither did Mr. Compean?
    7 A. No.
    8 Q. If you had, one of these thick reports would have been
    9 generated, right?
    10 A. I guess so.
    ****************
    3 Q. Okay. This is what the firearms policy calls a reportable
    4 shooting, correct?
    5 A. I believe so.
    6 Q. Well, you taught it for five years. If you don’t remember,
    7 I can give you the policy to refresh your memory.
    8 A. Yes, ma’am.
    9 Q. It is a reportable shooting?
    10 A. Yes, ma’am.
    11 Q. And when there’s a reportable shooting, the first thing
    12 you’re supposed to do is secure the scene, correct?
    13 A. I believe so.
    14 Q. You didn’t secure the scene?
    15 A. No.
    ****************
    As …As I stated to … umm … to this earlier … I didn’t … I just … I know it was wrong for us not to reported it and I … if I would have thought that he had been hit or anything like that had happened I would have … I didn’t … I just … I knew we were going to get in trouble because the way … the way it’s been at the station the last two … three years … uhh … I mean everything always comes down to the alien. The agents are as soon as anything comes up … it is always … always the agent’s fault. The agents have always been cleared but, with management, it’s always been the agent’s fault. We’re the ones that get in trouble. –Compean

    Vatar (bb1678)

  6. 10 page. Doesn’t it tell you that you’re required to report a
    11 shooting within one hour?

    Lol…the 14 gunshots reported the incident. The guns didn’t have silencers on them. Several agents, including a supervisor, were there.

    I’m sure that all of the agents there knew what would happen if they reported that Ramos and Compean shot at one of George Bush’s beloved Mexican drug traffickers. As the Bush side pleaded during the trial “he just wanted to feed his family”.

    j curtis (8bcca6)

  7. I believe there has been discussion of a policy discouraging filing of such reports at the time. This was a political prosecution although, for the life of me, I can’t see how this benefited anyone on this side of the border.

    Mike K (6d4fc3)

  8. If there was a policy discouraging filing reports, why would they say that they knew they were required to file a report within an hour?

    Does “page 21 of 64, Number 2″ say that if your supervisor is there, you don’t have to file a report? It sounds like the supervisor was in on the conspiracy too.

    Vatar (bb1678)

  9. ***Mike K – “I can’t see how this benefited anyone on this side of the border.”

    Mike, I think the prosecutors argument is that the rule of law in the US benefited. We have strict rules for when a law enforcement officer is allowed to use deadly force. I hope that your point is that Ramos and Campeon did not violate the rules, not that the rules don’t matter.

    JayHub (0a6237)

  10. If you don’t want to try to understand why this incident would not be formally reported while at the same time refuse to address motive for the shooting, then ultimately you can support the conviction on that basis.

    j curtis (8bcca6)

  11. j curtis, the motive is not an element by itself of the crimes Ramos and Campeon were convicted. I think you’ve failed to understand this.

    SPQR (26be8b)

  12. 11

    I realize that motive isn’t a factor in the crimes that Ramos and Compean were accused of. That is a big problem with the government’s case.

    Can you name for me any other case where consideration of motive is not a factor?

    j curtis (8bcca6)

  13. There are very specific rules of engagement that law enforcement officials, and military, must follow. Saying that someone was a really bad person is rarely a good excuse for violating those laws. Davila is no doubt a really bad person. But Ramos and Compean still should have followed the law. Because they didn’t, the government has no case against Davila.

    Vatar (bb1678)

  14. “I realize that motive isn’t a factor in the crimes that Ramos and Compean were accused of. That is a big problem with the government’s case.”

    j curtis, those two sentences do not make any sense.

    Motive is not a element of most crimes. Often motive is introduced as evidence to prove that the defendant was the person that actually committed the crime – this is because evidence that a motive existed for a particular person to commit a crime tends to prove the identity of the criminal.

    SPQR (26be8b)

  15. I get a kick out of this claim that the government didn’t have a case against Davila because the agents chased after him. It even popped up on Sutton’s “fact sheet”.

    If you read the trial transcripts, the Bush people were attacking the agents for ever pursuing Davila in the first place. The prosecution tried to paint Compean as being wrong ( and even implying criminal motive ) for making the initial radio call out and that the agents who began chasing Davila’s van were wrong ( here too they tried to imply a dark criminal motive ) to suspect that that was the van that Compean referred to in the initial call out. Then the prosecution attacked the agents for perhaps going over the speed limit in pursuit of Davila.

    It’s because they didn’t do what the Bush people tried to convey to the jury that they SHOULD HAVE done that there was any case against Davila to be investigated at all.

    j curtis (8bcca6)

  16. jcurtis

    Sounds like there may be some confusion here between intent and motive. Intent is an element of almost all crimes, but motive is not. Self defense is not a motive, it’s a defense to an intentional shooting.

    JayHub (0a6237)

  17. 14

    For fun, go ahead and name me a case other than R&C where motive wasn’t discussed at trial. Name me a case where a 924c was attached to a motiveless “crime”.

    It’s in the activity of contemplating possible motives that you come to realize that there wasn’t a criminal motive behind the shooting.

    j curtis (8bcca6)

  18. j curtis, you really don’t understand what I already wrote.

    SPQR (26be8b)

  19. 16

    Of course there is a motive in self defense, the motive is to defend one’s self from harm.

    j curtis (8bcca6)

  20. j curtis, you just are not getting it. It is not necessary to prove a “criminal” motive in most crimes, and a lack of a “criminal” motive does not excuse most crimes. Certainly not the ones Ramos and Compean were convicted of.

    SPQR (26be8b)

  21. DRJ, thanks for doing this. Do you know of any way to get access to briefs? Does the 5th Circuit tape oral argument like the 7th Circuit does?

    [Patterico – The Court ordered the briefs sealed at the request of the parties. I don’t think the Fifth Circuit tapes oral argument for public use. The Court’s Rules and Internal Operating Procedures provide as follows:

    “34.7 Recording of Oral Arguments. No cameras, tape recorders, or other equipment designed for the recording or transmission of visual images or sound may be present or used during oral argument. However, with the advance approval of the presiding judge, counsel may arrange, at their own expense, for a qualified court reporter to record and transcribe oral argument. If it is the court reporter’s usual practice, the reporter may make and use a sound recording for the sole purpose of preparing an accurate transcript. The reporter then must immediately destroy or erase the recording without making it available to counsel, a party, or any other person for any purpose. The court records oral argument for its exclusive use and does not make the tapes, or copies or transcripts of the recording available to counsel, the parties, or any other person.

    — DRJ]

    Patterico (faeccf)

  22. Some of the government contentions that the agents violated policy by chasing a drug runner are just pathetic. If thats not what law enforcement does, then why are they there in the first place?

    I am absolutely at a loss as to why they did not report this shooting & file the appropriate reports. I certainly think they should be strongly disciplined for violating their departments shooting policy in regards to reporting but sent to prison? I think not. The prosecutors actions in this case are disgusting & disturbing.

    Stan Switek (7cfd24)

  23. “Switek”, can you explain why it was not a crime to use deadly force against someone who was not at the time a physical threat to them or others?

    SPQR (26be8b)

  24. #23

    Ramos and Compean testified that they believed Davila was aiming a weapon at then as he ran away. The admission by the prosecution today that Davila told “some lies” calls into question his contention that he was unarmed.

    In my mind, anyway.

    stoo (a1830d)

  25. SPQR,

    Why have you failed to give me an example of another case where motive wasn’t discussed at trial? Why have you failed to name for me another case where a 924c was attached to a motiveless “crime”? Whether or not proving motive is necessary should be irrelevant to your ability to name me another case where motive wasn’t considered.

    j curtis (8bcca6)

  26. j curtis, because it is irrelevant. Like all of your arguments.

    SPQR (26be8b)

  27. stoo, and that makes sense to you? That someone running away from them was also aiming a weapon at them?

    SPQR (26be8b)

  28. and that makes sense to you? That someone running away from them was also aiming a weapon at them?

    Does it make sense to you that Ramos and Compean would want a dead unarmed suspect on their hands?

    j curtis (8bcca6)

  29. It is by no means implausible, SPQR.

    stoo (a1830d)

  30. Patterico – I added my response to your comment #21.

    DRJ (a6fcd2)

  31. My $.02…
    Absent the text of the manual, I fail to see how they were required to submit a “written” report. Supervisory personnel were on scene. It would seem to me that the responsiblity for “reporting” this incident (in my memory I seem to recall that incidents of this type were preferred to be reported orally) would fall on the most-senior person on-scene. It seems inconceivable that the “most senior” person on-scene would not be aware that a shooting had taken place, and would not have asked the agents involved “Wassup?”

    Another Drew (8018ee)

  32. By the way, the Fifth Circuit panel for this case consists of Judge E. Grady Jolly (AUSA and DOJ attorney 1964-1969, appointed to the 5th Circuit 1982), Judge Patrick E. Higganbotham (appointed Federal District Judge 1975, 5th Circuit 1982), and Judge Edward C. Prado (appointed Federal District Judge 1984, 5th Circuit 2003). This is a very distinguished panel.

    DRJ (a6fcd2)

  33. Stoo, evidently the jury did not find it plausible.

    SPQR (26be8b)

  34. Might that be because the wasn’t made aware of Davila’s lying, and the false pretense the prosecution put on about him only being a one-time mule, who only did it because he needed to take care of his sick mother?

    The Jury can only make a determination based on what they were told.

    stoo (a1830d)

  35. SPQR
    the jury did not find it plausible

    How dense can you get? His point was that it’s now established that Davila lied to the jury. Your reply to that is “but the jury believed his lies”…yeah, we know the jury believed Davila’s lies.

    j curtis (8bcca6)

  36. j curtis, given your own performance, you really don’t want to ask me the question about how dense one can get.

    So do you have any evidence for this weapon that Davila was aiming while running in the opposite direction?

    SPQR (26be8b)

  37. J Curtis – So should we do away with the jury trial and have decisions made only by judges as is done in many countries? I don’t think so. We have determined over centuries that a jury of 12 gives us the best chance of deciding what the facts were. Davila, Ramos and Campeon all testified in front of the jury. The jury got to watch them and judge their demeanor and truthfulness. On the issue of whether Davila had a weapon or not, either he or Ramos and Campeon lied. The jury decided it was Ramos and Campeon lying. What part of our jury system don’t you accept?

    JayHub (0a6237)

  38. This is ridiculous. They shot an unarmed man in the back as he was running away. Period. Cops are NOT ALLOWED to shoot at people running away from them. This is illegal.

    If this had happened on the Canadian border, people would be calling for the agents’ blood.

    Furthermore, these two agents’ shooting at the drug smuggler prevented the government from prosecuting the smuggler. If they’d done their job right, the drug smuggler could be off the street.

    Dtel (b172b4)

  39. “I hope that your point is that Ramos and Campeon did not violate the rules, not that the rules don’t matter.

    Comment by JayHub ”

    The bureaucracy loves reports but agents in the field who often end up completing reports on off-duty time are less enthusiastic. My information (which, of course, could be wrong) was that agents were discouraged from filing these routine reports unless there was evidence that a suspected drug runner had been wounded. I also suspect that shots are fired all the time from both sides. Only the agents, however are expected to file reports.

    Here is an example from my own experience. Ambulance drivers are expected to fill out paperwork if an emergency victim dies during the time they are in the amblance. Guess what ? Everybody is always breathing when they hit the ER door. It doesn’t matter if the body is a bit cool. Nobody dies in an ambulance unless the monitor is on and being recorded.

    My point is that rules are often evaded in practice and nobody objects until there is a squawk. This time the squawk was from friends of the drug dealer on this side of the border. I think it stinks. Those agents should have been suspended for a day for violating regulations. This was a political prosecution. What do you think the level of enthusiasm for chasing drug dealers at the border is today ? Sheesh!

    Mike K (86bddb)

  40. IIRC, the police CAN shoot someone who is running away if that person presents an on-going threat to the life and safety of others.

    I’ll let the lawyers among us put a fine point on it.

    Another Drew (8018ee)

  41. JayHub,

    The jury got to watch them and judge their demeanor and truthfulness.

    It has just been admitted that the performance that they jury watched from the main witness against Ramos and Compean was riddled with lies. Do you acknowledge this?

    j curtis (8bcca6)

  42. j curtis, now you are exaggerating. But still, where is the evidence of the weapon that Davila was aiming at the agents while running away from them?

    SPQR (26be8b)

  43. Didn’t the agents testify that they “thought” that Davila was aiming a weapon at them. Absent the weapon (or the impact of bullets), there is no proof. Therefore, the argument is absurd. Once again, police are criticized for utilizing their training in a blink-of-an-eye decision that, in monday-morning quarterbacking, appears to have been not prudent.

    Another Drew (8018ee)

  44. Anyone know if the appellate arguments were covered by any legal reporters? Anyone have access to all the legal periodicals through their Westlaw or Lexis subscriptions?

    I’m interested because I think that sometimes the significance of what’s said is misconstrued.

    I thought the most significant quote was not the “got out of hand” comment, but rather from Higginbotham,when he said that evidence that Aldrete made multiple attempts to smuggle drugs across the border “strikes me as very relevant.” I wish we knew the context of that.

    Once Aldrete Davila asserted the 5th, without an immunity agreement, I don’t know how it was going to come in. I do know that the defense had the snitch in the October run under subpoena. Does anyone remember why they didn’t put that witness on? Was a motion to put him on denied?

    Tracy (708d76)

  45. j curtis, now you are exaggerating. But still, where is the evidence of the weapon that Davila was aiming at the agents while running away from them?

    Comment by SPQR — 12/3/2007 @ 7:29 pm

    The relevant question, which has become more relevant with today’s revelations about Sutton’s lying star witness, is: “where is the proof that Davila didn’t pull something out of his waistband or pocket that appeared to the agents to be a gun?”.

    The incident occurred seconds before Davila was to cross the Rio Grande River. Anyone would have instinctively pulled their wallet or gun out so as not to waterlog those things. The burden of proof should have been on the prosecutors all along but with revelations that the prosecution’s star witness was a liar, that burden on the prosecution should be even more distinct.

    j curtis (8bcca6)

  46. Just getting to this today.

    Judge Jolly’s comments are the kind of thing you often hear from judges who have been on the bench too long and are getting up in years.

    Jolly is 70, and has been on the 5th Circuit for 25 years.

    But, when it comes time to sign onto opinions, they understand the law, regardless of their views on the appropriateness of a particular case. There are many trial outcomes that appellate court judges disagree with but find no legal basis to set aside.

    wls (bafbcb)

  47. Another Drew, that is equally absurd. We can’t just accept without question every assertion of “I thought I saw a weapon”. Especially if it is asserted about someone running away.

    At this point, the jury evaluated the credibility of the claim by R&C and evidently discounted it.

    Absent the appellate court finding some technical error in the jury instructions, or a finding that some important exculpatory evidence was excluded, it is unlikely that their convictions will be overturned. So far, I’ve not seen any convincing arguments that such occurred. It is difficult to imagine that the appellate court will find that no jury could conclude that the elements of the crime were proven.

    All the smoke and mirrors about motive, who was given what in exchange for testimony etc., don’t undermine the core questions – did R&C fire at and injure a fleeing suspect without justification?

    SPQR (26be8b)

  48. j curtis, so you have no evidence? That’s what I thought. Evidently, the defense was not able to present enough evidence to raise reasonable doubt in the jury’s mind. The prosecution met its burden of proof for the elements of the crime.

    SPQR (26be8b)

  49. SPQR,

    Both Ramos and Compean testified they thought Aldrete-Davila had a gun or something they thought was a gun in his left hand that he pointed at them as he ran away. In addition, the medical testimony and evidence regarding the path of the bullet was consistent with the claim that Aldrete-Davila was turned or slanted sideways to the left (toward the shooter, Ramos) when he was shot.

    The medical testimony and evidence was not conclusive since Aldrete-Davila was running and the medical witness could not reliably determine the angles involved. However, while the medical testimony obviously did not prove Ramos’ and Compean’s stories were true, it didn’t disprove them and could arguably offer some support for what they claimed.

    DRJ (a6fcd2)

  50. Here is why “not filing their reports” is about more than just some administrative failure on their part.

    If they had filed the reports, they would have been asked to justify their decision to shoot. They would have offered up a justification, and it would have been recorded in the internal investigation of the shooting. They would have been “on record.”

    If/when Davila’s story came to light — and lets assume it would have came to light in the same manner of his mom saying something to someone else’s mom whose related to a BP agent, etc. — Davila’s version would have been different than Ramos and Compean, but it would have come second in time.

    Any investigator would have looked at the two, done some cursory examination to see if it was more likely true that one rather than the other was telling the truth, and then closed the investigation without a recommendation. It would have been Davila’s word against Ramos and Compean.

    But, what happened instead, was that Ramos and Compean did not report what they had done. When Davila’s story came to light, the OIG investigator was first told “There was no shooting.” He says, “Why does this guy have a BP weapons slug in his ass then?”

    Now, the failure of Ramos and Compean to file reports looks like an attempt to prevent discovery of what they had done. Combine that with their own admission about picking up their shell-casings. Now you have solid “consciousness of guilt” evidence. Their actions in the aftermath of the incident are consistent with a person who knew they had done something wrong and were trying to keep it from being found out.

    Now the investigator shifts to questioning other BP personnel to see if Ramos and Compean’s story — actually just Compean’s story since Ramos never talked with the investigator — holds up under scrutiny. And it didn’t.

    In fact, Compean’s story at trial is inconsistent with Compean’s own handwritten statment given to the OIG investigator on the night he was arrested.

    Their story was a fabrication and it came apart like a cheap suit in an El Paso rainstorm.

    Do we have any info from the press coverage as to what the issues raised on appeal are?

    wls (bafbcb)

  51. The first mention they made that they thought Davila had a weapon was a month after the fact, long after they had sanitized the scene and removed any evidence that would have supported or contradicted their claim. Thus their lack of credibility. Are you saying that they thought the incident was serious enough to try to end a man’s life, but not serious enough to file a report?

    Vatar (55055f)

  52. DRJ, what I find more interesting than the case itself is that j curtis is convinced that they should not be convicted, but really isn’t convinced that they are innocent of the shooting. Ie., his arguments seem more rooted in that they should get away with a bad shooting. So I’m finding it more fun to explore j curtis’ version of the case than the real one.

    ** shrug **

    SPQR (26be8b)

  53. Everything you say may be true, WLS, and that can and should be raised at trial or retrial. I think the point of this appeal is that evidence about Aldrete-Davila should have come out, too. Specifically, I’m referring to Nolan Blanchette’s concerns about Rene Sanchez and his relationship with Aldrete-Davila. I also think the defense should have been given more latitude to question Aldrete-Davila about his smuggling that day and how likely it was that OAD didn’t have a cell phone or gun.

    DRJ (a6fcd2)

  54. Re “failing to report”.

    The facts as established at trial — and for purposes of appeal the court considers the evidence in the light most favorable to the verdict — showed that while supervisors did arrive at the scene, they were probably not at the scene yet when the shots were fired, so they were not necessarily aware that a shooting had taken place. They both testified consistent with that.

    So, the question of “reporting” the shooting remained.

    The policy provided that no “written” report was to be filed, because of concerns about a law enforcement agent’s 5th Amendment rights under Garrity.

    The policy is that the agent must orally inform/report to his supervisor that he had discharged his weapon, and nothing more. That report would then prompt a field shooting investigation during which the agent would have the opportunity, under appropriate cautions and protections, to explain the circumstances of the shooting.

    The fact that nothing like this was ever done is pretty good circumstantial evidence that neither Compean nor Ramos ever told their supervisors of having discharged their weapons.

    wls (bafbcb)

  55. I’m not aware of any meaningful limitation on what they were allowed to ask Davila about the day of the shooting and his condcut in connection therewith, including whether or not he had a cell phone.

    But, the fact remains, that neither Ramos nor Compean attempted to justify their decision to discharge their weapons on the basis of Davila pointing anything at them resembling a weapon until weeks/months after the incident. Ramos says he never saw any weapon, he shot only because Compean had shot.

    Ramos should blame Compean for every day he has to spend in jail — except Ramos had an independent duty to assess the present risk himself and he didn’t. HE shot becuase Compean was such a piss-poor shot he failed to hit him with a complete magazine.

    wls (bafbcb)

  56. wls,

    The star witness for the prosecution is a liar and the prosecution admits that he lied on the witness stand.

    Name for me some other cases where the prosecution admitted that their star witness, the “victim” no less, lied on the witness stand where that verdict was allowed to stand without a retrial or a verdict being overturned. This trial came down to the agents’ word against a liar who it is acknowledged lied on the witness stand.

    j curtis (8bcca6)

  57. j curtis, unfortunately for your attempt to argue this case, the trial really does not just come down to the agents’ word against Davila. And most of the key elements are really undisputed, R&C did shoot at Davila and injured him. Their excuse for doing so lacks any corroboration.

    SPQR (26be8b)

  58. the trial really does not just come down to the agents’ word against Davila.

    Now you are saying that if Davila had said on the witness stand “yeah, I pulled my gun and they started shooting at me” that Ramos and Compean would still be convicted and that testimony would have been irrelevant.

    Try harder.

    j curtis (8bcca6)

  59. Along this line, I might add that I contributed money to Stacey Koon’s family while he was in jail and I believe that Koon saved Rodney King’s miserable life. While never having been a policeman, I have spent many years making irreversable decisions in the operating room. Some of those patients died. I can remember a couple of decisions that were probably wrong. Fortunately, no ambitious prosecutor ever got interested in me. This is all about second guessing. Those guys did something wrong that should have been an administrative matter. I wonder how many of the hanging enthusiasts here have ever been forced to make a similar decision.

    Mike K (86bddb)

  60. Arguments aside, I think this case is a tragedy for the agents involved. I worry that what may have happened is that Agent Campeon tried to stop the fugitive as he came out of the ditch, but wound up falling in, losing his shotgun. Aldrete gets around him and goes up over the levee. Campeon is pissed because he looks like a fool. When he reaches the top of the levee he sees Aldrete running for the river and decides to throw a scare in him. He starts firing multiple shots in Aldrete’s general direction, but not intending to hit him, and he doesn’t. He scrambles down the levee and kneels to reload. Ramos comes over the levee and sees his fellow officer, thinks he’s been shot, and fires once, hitting Aldrete. Ramos goes to assist Campeon and finds he’s uninjured. They see Aldrete crossing the river. Campeon says something like, “Jeez, I was just trying to scare the guy,” and they’re in big trouble. They decide the best thing to do is to remove all the evidence and make like nothing ever happened. Unfortunately, things do come out and they’re prosecuted. Campeon comes up with the “He had a gun” story, and Ramos goes along because he won’t rat on a fellow cop. That’s the explanation that makes the most sense to me. If it’s true, it’s a tragedy of errors.

    JayHub (0a6237)

  61. Mike K:

    You couldn’t be more wrong. These guys put that gun on their waist knowing they have the lawful authority to end the life of another human being.

    But they can only do so if they are truly in fear for their own life or safety or the life or safety of another.

    The evidence here overwhelmingly shows that Compean was not in fear for his life or safety when he fired 14 shots at a hispanic male running away from him. The truth is that Compean was just flat pissed off that his encounter with this hispanic male in a nearby ditch ended with Compean face down in the ditch-water, his uniform muddy and dirty. Compean swung the butt of his shotgun in an attempt to strike Davila in the head while Davila had his hands up and was walking up the ditchbank to give up. Compean lost his balance when his swing missed, and fell into the ditch. Davila took the opportunity to make a run for the border. By the time Compean drug his fat little ass out of the ditch and took off in pursuit of Davila, it was clear that he would never catch him before Davila got to the river, so Compean took out his service weapon and began shooting — 14 misses, which means he had to stop, change magazines, and start shooting again.

    Ramos shot because Compean made it sound like a small war had broken out.

    But Ramos was no more certain that Davila constituted a threat than was Compean.

    It was vigilante justice on their part, nothing more.

    wls (d93e70)

  62. No, j curtis, I don’t need to try harder, instead you need to look more realistically at the evidence instead of arguing by making up evidence. The reality is that the jury saw a case of R&C shooting at someone without a justification. They destroyed their own credibility.

    SPQR (26be8b)

  63. WLS,

    Thanks for all your comments on this issue. Well put and easy to understand.

    voiceofreason (832e7f)

  64. For me, the macro issue is the preservation of the rule of law, as imperfect as the law and the supporting administrative reporting requirements are.

    From a pure “rightness” viewpoint, Davila is fortunate to be alive. He can expire tonight as far as I’m concerned. He got a small taste of what he richly deserves.

    But properly licensed police and military simply must follow the regs. If, at a point in time, a given officer/soldier finds that he cannot agree to the regs/rules of engagement, he needs to take himself out of position to fire. R&C and their families and many fellow border agents are in full agreement that the regs, as administered, are farcical. I agree. But it can’t be up to the individual agent to alter such. I don’t get to take out those ludicrous red light traffic cameras, and border agents don’t get to take out scum who do not present a clear and present mortal threat.

    I sincerely hope R&C get a commutation and are released forthwith. But they should never again carry a firearm in my name. And all other like-minded agents need to quit. Tonight.

    Now, don’t get me started as to Congressional and Executive complicity in promulgating horrific border policies.

    Ed (ed25ca)

  65. SQPR

    The reality is that the jury…

    The jury you are holding up as an authority was tainted by the “victim’s” perjury. Anyone with hindsight is a better authority than that jury.

    You are the sort of person who would enter a discussion about the OJ Simpson case declaring “…hold on fellas, the reality is that a jury heard the case and….”

    j curtis (8bcca6)

  66. j curtis, your condemnation of the jury fails to convince specifically because you ignore evidence rather than actually argue against it. Your focus is upon peripheral issues, not the core questions.

    SPQR (26be8b)

  67. The prosecution’s start witnesses were Ramos and Compean. They were convicted based on their own testimony. Davila’s testimony isn’t all that relevant. It is telling that the jury didn’t find Ramos and Compean’s story any more convincing.

    14 Q. Now, you testified earlier that you didn’t think — you saw
    15 the driver limping off, but you didn’t think that he had been
    16 hit. Is that true?
    17 [Compean] Yes, sir.
    18 Q. Now, why don’t you go ahead and look at your statement
    19 again, page 2. Go six lines up from the bottom of page 2.
    20 [Compean] Yes, sir.
    21 Q. What did you tell Agent Sanchez when you — this — and
    22 this is your handwritten statement, correct?
    23 [Compean] Yes, sir.
    24 Q. And you signed it as yours, and no one forced you to make
    25 this statement, correct?

    1 [Compean] Correct.
    2 Q. All right. What did you tell Agent Sanchez about the
    3 driver being shot?
    4 [Compean] Do you want me to read it?
    5 Q. Yes, sir.
    6 [Compean] Agents Mendoza and Jacquez asked what had happened.
    7 I told them, I think Nacho might have hit him.
    8 Q. Okay. And yet today you’re telling this jury, a year after
    9 this statement was taken, that the driver was not hit. But yet
    10 a year ago, you said he had been hit. Is that fair?
    11 [Compean] What I told Agents Mendoza — well —
    12 Q. No, sir. I asked you: Is that what you said?
    13 [Compean] That’s what I wrote down, sir. That’s not what I meant to
    14 put, but yes.

    Vatar (75417a)

  68. 66

    Do you admit or deny that the jury heard perjured testimony from the “victim”?

    67

    Why do you think the agents shot at your drug trafficker? Do you believe they wanted to have an unarmed corpse on their hands?

    j curtis (8bcca6)

  69. “Why do you think the agents shot at your drug trafficker? Do you believe they wanted to have an unarmed corpse on their hands?”

    Why, j curtis, that’s brilliant. The fact the suspect was unarmed proved the border guards thought he was armed.

    Christoph (92b8f7)

  70. 69

    The fact the suspect was unarmed

    How is that a “fact”, because the perjuring witness said so?

    j curtis (8bcca6)

  71. j curtis, I think the jury heard a lot of perjury from witnesses and figured that out. What you refuse to see is that R&C’s conviction does not depend upon Davila’s testimony as much as you wish it did. As for why they shot at Davila, JayHub and WLS have put forward an explanation that you’ve repeatedly ignored.

    SPQR (26be8b)

  72. j curtis #70, you seem to not understand that Christoph was not asserting that Davila was unarmed but showing how your logic was circular.

    SPQR (26be8b)

  73. “Mike K:

    You couldn’t be more wrong. These guys put that gun on their waist knowing they have the lawful authority to end the life of another human being.

    But they can only do so if they are truly in fear for their own life or safety or the life or safety of another.”

    Spoken like a man who has never been there. Of course, your certainty makes it sound as though you were a witness so maybe I’m wrong and you were there. I wasn’t.

    My point was not that they shouldn’t be punished but that it did not rise to the level of a prison term. I have no objection to them being fired and not “strapping on a gun again.” My family has a ranch near the Arizona-Mexico border. There is shooting all the time and no one goes out at night. The border is a wild west zone and I suspect these guys have been shot at before.

    Mike K (86bddb)

  74. 71

    As for why they shot at Davila, JayHub and WLS have put forward an explanation that you’ve repeatedly ignored.

    Ignored? They are just repeating the scenario I offered only minutes after reading the transcripts. Post #12:

    http://patterico.com/2007/02/13/border-patrol-shooting-trial-transcripts-available/

    72

    Is it your belief that the agents expected to have an unarmed corpse on their hands when they decided to fire their weapons at the drug smuggler? If not, why not?

    j curtis (8bcca6)

  75. j curtis, you are not improving your logic.

    SPQR (26be8b)

  76. Oh, come on. The government proved that these agents shot an unarmed man who was just trying to feed his family. Not a drug smuggler who tried to bring in 750 pounds of marijuana, fought the agents violently and tried to run back across the border to his waiting drug-running friends just so he could do it again. Where’s your sense of compassion and justice?

    nk (19e0fd)

  77. That’s a good summation of most arguments for R&C, and while I have some sympathy for the position, it is simply not the law of the use of deadly force.

    I’d be open to changing it but that does not make R&C innocent.

    SPQR (26be8b)

  78. The government proved that these agents shot an unarmed man who was just trying to feed his family. Not a drug smuggler who tried to bring in 750 pounds of marijuana, fought the agents violently and tried to run back across the border to his waiting drug-running friends just so he could do it again.
    Wow, had it been just a little more serious, they might have reported the incident.

    Vatar (75417a)

  79. 74. J Curtis is correct. He did write in February a description of a similar scenario to what I and WLS have suppposed.

    And I agree with his basic conclusion that even if you assume the situation resulted from foolish, stupid, or genuine mistakes made by these officers, their actions should not have resulted in such long prison terms.

    If at the time they simply had reported the incident happening as we suppose, I’m assuming Campeon would have been fired and Ramos would, at most, have been disciplined.

    Why should the addition of the coverup result in such severe sentences. To my mind, it may be legally correct, but it’s unjust.

    Comment by J Curtis — 2/14/2007 @ 8:33 pm

    JayHub (0a6237)

  80. It seems simple to me. Mr. Aldrete lied at the trial. Mr. Sutton knew he would. Ramos and Compean should have gotten a 30 suspension for breaking the rules. Mr Aldrete and Mr Sutton belong in jail.

    Ken Hahn (7742d5)

  81. Ken Hahn, what did he lie about? How did it change the basis for the conviction on the actual crimes charged?

    SPQR (26be8b)

  82. JayHub

    Why should the addition of the coverup result in such severe sentences. To my mind, it may be legally correct, but it’s unjust.

    Comment by J Curtis — 2/14/2007 @ 8:33 pm

    You appear to be falsely attributing this quote to me. Did you do it accidently?

    j curtis (8bcca6)

  83. J Curtis, Yup. Sorry, I’d copied your some of your comments from the February discussion, but then decided just to summarize what you’d said, not quote it. I deleted the quote, but not the tag. The comment as to the sentences is mine.

    JayHub (0a6237)

  84. WLS
    “The evidence here overwhelmingly shows that Compean was not in fear for his life or safety when he fired 14 shots at a hispanic male running away from him. The truth is that Compean was just flat pissed off…”

    There seems to be a difference of opinion as to whether the evidence shows what you say it shows. A good sized group of people find it totally plausible that Davila could have had a gun or “shiny object” in his hand when the shooting took place. The medical analysis was interesting because it seems to be consistent with Compean’s testimony. Also, as has been pointed out, the only “proof” that Davila was unarmed is his own testimony. Had the defense been allowed to point out the “lies told to investigators”, the level of credibility he had would have been much lower. Had the jury been allowed to hear evidence about his other activities, then they might have put more value on Compean’s testimony to this effect.

    “Compean swung the butt of his shotgun in an attempt to strike Davila in the head while Davila had his hands up and was walking up the ditchbank to give up.”

    Once again, only Davila’s testimony to establish these “facts” and this is a direct contradiction to the testimony of the only other person who was there, Compean. He said, he said. Once again, without the ability to bring up other incidents that prove Davila’s other testimony is false, you are not allowing the jury to make an informed decision as to the truth of either man’s testitmony.

    For some reason, I had always believed that it was a responsibility of the prosecutor to make sure that any testimony given on the stand, by the witnesses they called, was factual. Is there any rule governing a prosecutor’s actions upon hearing perjury from one of their witnesses? If a prosecutor has reason to believe that their witness has committed perjury, what are his ethical responsibilities?

    “..his encounter with this hispanic male in a nearby ditch ended with Compean face down in the ditch-water, his uniform muddy and dirty. Compean swung the butt of his shotgun in an attempt to strike Davila in the head while Davila had his hands up and was walking up the ditchbank to give up. Compean lost his balance when his swing missed, and fell into the ditch. Davila took the opportunity to make a run for the border. By the time Compean drug his fat little ass out of the ditch and took off in pursuit of Davila, it was clear that he would never catch him before Davila got to the river, so Compean took out his service weapon and began shooting — 14 misses, which means he had to stop, change magazines, and start shooting again.”

    Pretty high level of animosity here from my reading of your posts. Do you know Compean personally? What has caused all this vitriol? It almost sounds like you have a personal stake in this and are offended that anyone could see things differently.

    I enjoy reading your posts because you have a firm grasp of the legal system and are good at articulating your points. I wonder about the vehemence exhibited in your posts regarding this case. Seems that like J. Curtis, you have your mind made up and are not willing to entertain other perspectives any longer.

    Personally, I believe that this was a politically motivated prosecution. There are several reasons I believe this.

    Take a look at the other cases filed by Johnny Sutton’s office during the same few months.

    Deputy Hernandez prosecuted for violating the 4’th amendment rights a a van load of illegals who had tried to run him over.

    Ramos and Compean prosecuted for shooting at a drug smuggler.

    The BP agent, Noe Aleman, that was prosecuted for an immigration fraud charge because of a paperwork error when trying to bring his legally adopted daughters into Texas.

    Seems to me that a clear message is being sent to L.E. in west Texas.

    Jay Curtis (8f6541)

  85. “There seems to be a difference of opinion as to whether the evidence shows what you say it shows. A good sized group of people find it totally plausible that Davila could have had a gun or “shiny object” in his hand when the shooting took place.”

    They don’t appear to have been on the jury.

    Christoph (92b8f7)

  86. They don’t appear to have been on the jury.

    At least three of them were. Their affidavits given after the trial seem to indicate that some of them believe they were mislead in a number of ways. Yes, I know that these affidavits mean nothing to the appeals court judges but they indicate that at least 3 people could have voted the other way if the jury foreman had not told them that the judge would not accept a hung jury.

    http://www.dailybulletin.com/news/ci_4508579

    Jay Curtis (8f6541)

  87. Another thing that we discovered during the trial that should have been brought to the attention of these judges at the hearings is that Davila’s immunity agreement apparently allowed him to refuse to reveal the identities of material witnesses to the alleged crime.

    Another new dangerous precedent brought to us by Johnny Sutton.

    j curtis (8bcca6)

  88. Another thing that we discovered during the trial that should have been brought to the attention of these judges at the hearings is that Davila’s immunity agreement apparently allowed him to refuse to reveal the identities of material witnesses to the alleged crime.
    Welcome to the 5th amendment.

    Vatar (187c4a)

  89. Over and over J Curtis states that the feds admitted OAD lied on the stand. He gets his information from World Net Daily and writer Jerry Corsi.

    The only information to come out on this was from an AP writer who related that feds said OAD had told some lies to investigators, presumably during intitial interviews.

    Nobody knows what lies were told, how important they were or if they ever reached the jury. But the fact is Jerry Corsi mistated the facts to sensationalize the story and sell some papers. There is no evidence the feds “admitted OAD lied in court”.

    That J Curtis swallowed the whole thing and repeats it over and over (not to mention trusting WND) only proves his statements cannot be trusted with any degree of assurance. He does not check his facts and is willing to repeat any kind of nonsense he reads from suspected sources.

    Bob J (da8f84)

  90. The only information to come out on this was from an AP writer who related that feds said OAD had told some lies to investigators, presumably during intitial interviews.

    How do you come to the presumption that it was only “during initial interviews”? It’s obvious that Davila was lying to prosecutors about the October involvement because if he had confessed there would be no need to further investigate his involvment in the matter for the next two years. Wouldn’t you agree?

    j curtis (8bcca6)

  91. Because the statement was “told some lies to investigators”, not “told some lies to prosecutors”.

    Second, you know nothing about what OAD might have or might not have told prosecutors about that, third, if they asked he would probably have taken the 5th, and fourth, his immunity agreement did not cover any actions outside the shooting incident at Fabens.

    Bob J (da8f84)

  92. BTW – Since you did not mention it I assume you agree the WND is full of hooey.

    Bob J (da8f84)

  93. 92

    I’m absolutely positive that your beloved AP is “full of hooey”. What was the context of the admission that Davila lied? Did he tell a fib to investigators about the 100 lb catfish he caught? Probably not, it was probably something relevant to the matters before the 5th circuit.

    One thing is certain, Davila was a professional drug trafficker. Bush’s strategy was to prevent “the truth, the whole truth and nothing but the truth” from coming out at the trial. They used a gimmick to deny the agents their due process rights. That gimmick was “you don’t get due process because giving you due process will jeopardize an ongoing investigation!”.

    The defense spent hours trying to establish Davila’s hardened criminality to the jury with more difficult approaches since they were forbidden to use the obvious approach. Showing their true intent, in the closing statements, Team Bush characterized these approaches as a waste of the court’s time, a witch hunt and so forth, while knowing full well that they succeeded with their malicious strategy of keeping the best and most obvious evidence of Davila’s criminality under wraps.

    j curtis (8bcca6)

  94. The thing is, j curtis, it has already been well established that the reporter you rely upon is the one “full of hooey”. You’ve convinced yourself independant of any facts of what you want to believe in this case.

    SPQR (26be8b)

  95. “Bush’s strategy was to prevent “the truth, the whole truth and nothing but the truth” from coming out at the trial.”

    Bush was stategerizing throughout the trial? Who knew Bush was an evil legal mastermind too. Will that man’s massive intellectual capabilities in the pursuit of darkness ever cease to amaze me?
     

    Comment by SPQR — 12/10/2007 @ 4:10 pm

    Hear, hear!

    Christoph (92b8f7)

  96. You’ve convinced yourself independant of any facts

    I read the trascripts multiple times and read the court documents from my PACER account. I don’t expect you’ll be making any head on challenges to what I’ve written but will instead continue to try to discount my points by other means.

    Let’s see if you can challenge my points without referring to WND, just for fun. I’ll take any refusal to do this as an admission that you can’t do it.

    j curtis (8bcca6)

  97. Ramos and Compean should have gotten in trouble, but only for not reporting the shooting. Getting 10 years plus for shooting the drug smuggler is ridiculous. They testified they believed the smuggler had a weapon and that’s all they need to justify the shooting. Even though they never found the weapon it becomes a moot point because the smuggler was never caught so only God and the smuggler knows if he had a gun. [I guess the smuggler wouldn’t lie under oath] Everyone that knows anything about law enforcement knows that drugs and weapons go hand in hand. Why because they need weapons to protect the load from other drug traffickers. So why take the word of a drug smuggler? The thing that pisses me off the most is that a jury found these agents guilty. What I do know is that this case has demoralized the law enforcement community. From what I have read I really feel this was a justified shooting just for the fact that the subject was never caught so how can anyone know he was armed. Now with the death of Agent Aguilar I believe he could have used deadly force but this case might have come to his mind. I know it does to me when ever I pull out my weapon. I believe this case has open the doors for drug traffickers by agents not doing their job for the purpose of not losing a decent paying job. As law enforcements officers say [no cases-no problems; big cases-big problems] And what I see now is the no problem effect.

    LEO (e73d93)

  98. It’s been over 90 days, does anybody know why the court hasn’t ruled on this?

    I’m hoping Compean and Ramos will prevail, how can this be affirmed when the prosecution’s star witness lied on the stand, by their own admission?

    Cheryl D. (ad8087)

  99. Three of the twenty-two judges on the Fifth Circuit were former U.S. attorneys or Assistant U.S Attorneys. Two of those three (Prado and Jolly) were on this panel. One of those two (Prado) was the predecessor to the prosecuting U.S. Attorney in this case. Same office, the U.S. Attorney for the Western District of Texas. Both appointed (to the Fifth Circuit, and the U.S. Attorney’s Office) by the same man.

    Does this seem odd to anyone?

    David Rogers (9a64de)


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