Patterico's Pontifications

7/28/2008

Fifth Circuit Decides Ramos/Compean Appeal

Filed under: Court Decisions — DRJ @ 12:33 pm



[Guest post by DRJ]

The Fifth Circuit affirmed the convictions of Ignacio Ramos and Jose Compean with one relatively minor exception. From the Fifth Circuit opinion:

“We conclude. For the most part, the trial of this case was about credibility, and although the jury could have gone either way, it chose not to believe the defendants’ version of the crucial events of February 17. The trial of the case was conducted fairly and without reversible error. The exclusion of evidence relating to the size of the marijuana load and Aldrete-Davila’s alleged involvement in drug-trafficking events of October 2005 did not violate the defendants’ Sixth Amendment rights to present a complete defense nor did it deny them a proper cross-examination of a witness against them. They were denied no right of due process for lack of notice that § 924(c) could be applied to police officers while performing law enforcement duties. Nor was the § 924(c) indictment defective. Moreover, the defendants were properly convicted of substantive crimes, not for violating Border Patrol policies. In instructing the jury, no reversible errors were committed and, finally, the evidence fully supports the jury verdict. We therefore affirm the convictions for counts 1 through 5 and counts 11 and 12.

However, we reverse and vacate the convictions for obstruction of justice under § 1512(c)—counts 6 through 10 of the indictment—because the Border Patrol investigation was not an “official proceeding” within the meaning of the statute. We therefore remand for resentencing not inconsistent with this opinion.”

Bottom line: The Fifth Circuit trusts the jury to make the right decision. In addition, as WLS predicted, the Court refused to overturn the 924(c) sentences of 11 and 12 years “[b]ecause Congress directed a mandatory minimum sentence of ten years for all defendants convicted under this statute, i.e., using a gun in relation to the commission of a crime of violence.” As a result, the Court said the district court had no discretion in imposing these sentences.

Conservative court and a conservative result. As the Court notes, that’s not much consolation to the defendants.

— DRJ

144 Responses to “Fifth Circuit Decides Ramos/Compean Appeal”

  1. Conservative court and a conservative result.

    Well, only if “conservative” means “protect Bush”…and I’m sure it does to these clowns. Had they done the right thing, there would have been a huge investigation that would have been Bush’s legacy.

    Anyone know when Davila will be sentenced?

    j curtis (c84b9e)

  2. Well, no one ever accussed the 5th-Circuit of being an “activist” court, have they?
    But, now the ball is kicked firmly onto the WH lawn – will GW step up and show the same compassion to these agents as he showed to Scooter?

    Another Drew (a28ef4)

  3. Its the right decision under the facts and the law.

    Frankly, the fact that it took them so long convinced me a couple months ago that their conviction would be affirmed. If the Court was going to reverse and order a new trial on the issues presented, it could have done so quickly and easily.

    As I’ve said all along, the jury heard Compean and Ramos’s version of events, and simply didn’t believe it — and there were many many reasons to not believe it.

    WLS (26b1e5)

  4. yeah, I can buy judges appointed by Reagan and Ford deciding their mission on the bench is to ‘protect Bush’.

    and this would be bush’s legacy? in what warped world does this case trump the rest of what Bush has done in office… Iraq, NCLB, Medicare expansion, 9/11, screwing up Katrina, Guantanamo?

    ah, time to unleash the dogs of hyperbole…

    steve sturm (a0236e)

  5. Another Drew — I think you might very well see an 11th hour commutation. That would probably be the right thing to do under the circumstances — the President could look at the mandatory 10 year consecutive terms required by the statute, and say those are inappropriate in this case. Allow the convictions to stand, but cut short the sentences.

    WLS (26b1e5)

  6. I don’t think the Fifth Circuit has any desire to protect President Bush. By “conservative Court and a conservative result,” I meant that this is a court that tends to affirm jury convictions in criminal cases if there is a reasonable basis for the decision under the law. I think all courts should do that, but it’s certainly harder to swallow in a case like this.

    DRJ (de3993)

  7. yeah, I can buy judges appointed by Reagan and Ford deciding their mission on the bench is to ‘protect Bush’.

    Especially 3 months before an election. Of course they will let these agents rot in jail rather than invite a scandal that would lead to an investigation showing that Bush was Mexico’s puppet and that they attempted to cover up the crimes of Mexican drug traffickers.

    These justices had the opportunity to tackle some very serious issues regarding law enforcement at the border as well, but the cowards failed to do it.

    j curtis (c84b9e)

  8. I have many things revolving in my mind about this whole sorry situation, but I dare not write any of them for posterity. I will simply say of Johnny Sutton what I have said previously of Bill Clinton, Joe Wilson, and Fred Phelps; the fact that I am unlikely to ever come within (ahem) spitting distance of him is a good thing for us both.

    L.N. Smithee (e1f2bf)

  9. WLS wrote: I think you might very well see an 11th hour commutation. That would probably be the right thing to do under the circumstances — the President could look at the mandatory 10 year consecutive terms required by the statute, and say those are inappropriate in this case. Allow the convictions to stand, but cut short the sentences.

    I’m sorry, I can’t agree. I don’t know of any reason to think Bush will be reversing field on Ramos & Compean. I lost confidence long ago in W’s integrity when it comes to putting American border security before the selfish demands of Mexico City.

    Remember former DHS undersecretary for Border Security Asa Hutchinson’s dissembling on a 2004 edition of KFI’s John & Ken Show after he stopped a shockingly successful sweep in SoCal by the Border Patrol? That interview said to me all that needed to be said about which President (or, I should say, Presidente) was in charge of the situation. Fox was lifting a back leg next to a Bush.

    L.N. Smithee (e1f2bf)

  10. LN Smithee — just where are the “selfish demands” of Mexico City reflected in the decision to prosecute two BP agents who shoot a fleeing suspect in the back?

    And don’t give me chapter and verse crap about him having a gun in his hand — that is the most bullsheet story I’ve see from a cop accused of wrongdoing, and I’ve seen plenty of them.

    WLS (26b1e5)

  11. WLS: asking for specifics? backed up with facts? from this crowd?

    steve sturm (a0236e)

  12. Bottom line: It can never be said that the judicial process was not given a chance to work. When the president commutes the sentences, his critics would do well to keep that fact in mind.

    Icy Truth (f0c2e6)

  13. WLS,

    Have you noticed that Bush has lost all interest in bringing the murderer of Agent Aguilar to justice?

    I was thinking about what would have happened if Agent Aguilar had shot at the vehicle that was attempting to run him over. After the shot, and if the vehicle continued on to Mexico with a wounded driver, should Aguilar report the incident with no way to prove that the vehicle was attempting to run him down? Wouldn’t that pretty much be asking for a long jail sentence on an attempted murder rap?

    j curtis (c84b9e)

  14. WLS,

    I think this story has a lot of Texans upset with Johnny Sutton.

    DRJ (de3993)

  15. j curtis — more crapola from you on this case.

    Where do you get your info that the Pres. has “lost interest”? Is it the President’s job or DOJ’s job? Do you have info that DOJ is no longer pursuing the matter?

    If its the President’s job, then he’s going to be one busy guy — because if that’s his job then so is inspecting mine shafts in Utah, and grading meat in Texas, and surveying National Forest property in Oregon, and monitoring levels of CO2 from coal power plants, blah, blah, blah.

    Those are just as much the responsibilities of federal officials as investigating the murder of Agent Aguilar.

    And, as I have said repeatedly on this particular case, had Ramos and Compean timely reported the shooting, and had they told their cock&bull story immediately rather than covering up the shooting in the first instance, I’m about 99% sure they would have gotten away with it.

    But all their conduct in the aftermath of the shooting simply exposed the fact that their story was full of holes.

    WLS (26b1e5)

  16. WLS wrote:

    LN Smithee — just where are the “selfish demands” of Mexico City reflected in the decision to prosecute two BP agents who shoot a fleeing suspect in the back?

    And don’t give me chapter and verse crap about him having a gun in his hand — that is the most bullsheet story I’ve see from a cop accused of wrongdoing, and I’ve seen plenty of them.

    I appreciate how you asked a question and then limited how I reply because you’ve already decided a potential answer is “bullsheet.” But that’s OK, I’ll play by your rules.

    I don’t know of any U.S. body (be it state or federal) that would go out on a limb for an American who got shot in the buttocks obviously trying to smuggle drugs INTO Mexico ESPECIALLY after that “victim” used his immunity as a cover to return and finish the crime.

    Do you?

    What would have been wrong with the Mexican government stood down and said to Aldrete-Davila, “Tough Schtuff! You tried to get over on the Americans, and now you gotta sit on a foam ring. You’re lucky you get to sit up at all when you could be lying down six feet under. Serves you right, punk — clean up your act.” Instead, they set up a series of events that emboldened the weasel to try again.

    Why? Only the Mexicans know why, but I’ll tell you one thing — it’s not because they wanted to engender better relations between Mexicans (all in general, immigrants in particular) and Americans. IMHO, it’s more likely the Mexicans’ insistence on prosecution of Ramos & Compean was intended to intimidate BP agents from doing their jobs effectively, which (surprise!) also seems to have been the goal of George W. Bush since he was elected, 9/11 notwithstanding.

    L.N. Smithee (d1de1b)

  17. DRJ — that is so much WND and Jerome Corsi crap, that is only fanned by idiots like Poe. Yes, I know he’s a retired federal district judge, but I’ve met a lot of idiot district court judges.

    I’m SHOCKED the Mexican consulate would write such a letter to the federal prosecutor about a Mexican citizen being shot by a Border Patrol agent near the border. I can’t imagine the US Ambassador in Mexico would ever raise any kind of similar protest if a Mexican Federale Policeman happened to shoot a US Citizen near the border.

    Demand Mexican authorities prosecute a Mexican law enforcement agent for shooting a US citizen in the back?? Silly. I’m sure the Ambassador would laugh off any such request from the family of the wounded citizen. We can’t be interfering in the Mexican judicial system with such outrageous demands.

    How dare they do that? Especially in a case like this where the shooting was so obviously justified and the agents in question followed well-established procedures to the letter.

    WLS (26b1e5)

  18. WLS,

    Sutton never denied the WND story and I don’t think you know much about Texans. The only governments we care about are in our local communities, Austin and occasionally that far-away one in Washington.

    DRJ (de3993)

  19. LN Smithee — silly me. See, I thought this was about prosecuting two Border Patrol agents who tried to kill a guy because they were pissed off that he ran from them, after the little fat asshat with a gun slipped and fell in the water when the guy ducked and avoided getting brained with a shotgun stock.

    Dirty little secret — the uniformed BP is stocked with some really questionable characters. It is not the “highest calling” among federal law enforcement agencies. You wouldn’t find yourself wanting to interchange too many BP uniform guys for FBI Special Agents.

    They might not want to hear that, but the good guys in the uniform BP know that its true.

    Sorry to disappoint you.

    WLS (26b1e5)

  20. DRJ — I don’t for a moment doubt its true. But the investigation at the US Attorney’s Office was pursued based on the DHS OIG report, not because of some stupid letter from the Mexican consulate.

    Sutton hasn’t covered himself in glory in his various public interviews on this subject — frankly he’s given to many of them to people who are simply never going to believe him.

    Bottom line for me — two BP agents shot a guy in the back, and their story for why they did so is farcical.

    We give them guns and the lawful authority to take a life if necessary.

    That’s not justification for declaring open season on anyone who runs.

    Reminds me of the scene from Full Metal Jacket, where the door gunner in the helicopter is shooting up every rice patty they fly over. His rationale?

    “Anyone who runs is VC. Anyone who stands still is well-disciplined VC.”

    WLS (26b1e5)

  21. The punishment is way too extreme for this crime. Bush set the tone. To him, anything other than extreme punishment here would have been a slap in the face to Mexicans and Presidente Fox.

    Wesson (f6c982)

  22. That should be rice “paddy” — oops.

    WLS (26b1e5)

  23. WLS,

    There is a middle ground between letting them go free and putting them away for 12 years. It could have been handled as a disciplinary proceeding with termination and loss of benefits (which I would not support, but it was an option) or as a criminal prosecution without the 924(c) charges (which I would support).

    Those decisions were Sutton’s to make and he has made harsh examples of every BP agent he has prosecuted. That’s fine with BP agents who knowingly collaborate and conspire with Mexican smugglers for money. That’s not so fine with BP agents who make mistakes, even serious mistakes, but they are trying to do their jobs.

    DRJ (de3993)

  24. WLS wrote:

    LN Smithee — silly me. See, I thought this was about prosecuting two Border Patrol agents who tried to kill a guy because they were pissed off that he ran from them, after the little fat asshat with a gun slipped and fell in the water when the guy ducked and avoided getting brained with a shotgun stock.

    Nice try at changing the subject, but I won’t let you.

    Answer my question: What U.S. body would so doggedly pursue someone who was obviously involved in criminal action? Are you telling me that there are U.S. Ambassadors that would lean upon foreign leaders to punish their LEOs when the American lawbreaker escaped death and made it back alive to the States? If it’s true that such ambassadors exist, it’s not because Americans think we should be able to run roughshod over other nations’ criminal and border laws, which is the official policy of Mexico’s government!

    You wouldn’t find yourself wanting to interchange too many BP uniform guys for FBI Special Agents.

    They might not want to hear that, but the good guys in the uniform BP know that its true.

    Uh huh. Does that include the mysterious guys who made the spectacular (but later quietly retracted) false allegation that Ramos & Compean told somebody they were just itching to shoot a Mexican that day?

    Sorry to disappoint you.

    You have disappointed me, WLS. I expected more than sarcasm and ad hominems (WND and Jerome Corsi crap … idiots like Poe … I know he’s a retired federal district judge, but I’ve met a lot of idiot district court judges”) fired at everyone that disagreed with this decision.

    L.N. Smithee (0931d2)

  25. Using the 924(c) count is a tough call from the standpoint of prosecutorial discretion. Both defendant’s turned down a plea offer to the 242 violation (assault under color of authority) and seemed insistent on going to trial by continuing to profess their innocence.

    At that point, as a prosecutor, my view is that its my job to bring the most serious charges I think the evidence will support, hence the superseding indictment. The defendant’s are showing no remorse or acceptance of responsibility for their misconduct.

    The evidence, as the 5th Cir. concluded, clearly supported the charge. Congress passed and a previous President signed the law creating the mandatory 10 year sentence under 924(c). Its not the role of the prosecutor to frustrate the will of Congress by refusing to prosecute crimes supported by the evidence.

    WLS (26b1e5)

  26. It may well be the law that a fleeing felon who brought a gun to the encounter with federal officers is not to be shot at. That doesn’t mean the law is correct.

    I don’t buy the particulars that R&C spewed in an effort to cover-up procedural screw-ups. They lied.

    However, if anyone needs killing, or simple maiming, it’s scum like the dude they shot. And yes, there are those who need killing.

    I also believe Sutton withheld material facts. At a minimum, as with that scumbag Duke prosecutor Nifong, Sutton should be sanctioned and subject to criminal prosecution.

    If I had the power, I would commute the R&C sentences forthwith and I would direct DOJ to knock themselves out going after Sutton.

    Ed (59b337)

  27. Interesting point of view, WLS. I find it ironic that you have no problem with all but one of the BP who testified against them losing their jobs for false testimony after the trial. I also find it interesting that the only testimony that the smuggler did not have a gun came from the smuggler himself.

    It would be interesting to hear what conclusion a jury would have come to had they been allowed to hear about the smugglers subsequent activities while awaiting the trial.

    The whole thing stinks to high heaven. Considering the other prosecutions of law enforcement officials by Johnny Sutton during the same period, I personally believe that he was being a good little soldier for Bush and his open borders agenda.

    (I voted for Bush twice. Once because he claimed he was going to enforce immigration laws and once because the alternative scared the hell out of me.)

    At least the process can go forward now that the 5th has finally deemed to release their opinion.

    Jay Curtis (cd3c83)

  28. Correction on #24: “pursue” should be “defend”

    L.N. Smithee (0931d2)

  29. If its the President’s job, then he’s going to be one busy guy — because if that’s his job then so is inspecting mine shafts in Utah, and grading meat in Texas, and surveying National Forest property in Oregon, and monitoring levels of CO2 from coal power plants, blah, blah, blah.

    There are people who do those other jobs. There is only one American who can authorize US authorities to go into Mexico and bring back the murderer of a US Border Patrol Agent. It ain’t the guy inspecting mine shafts in Utah, WLS.

    j curtis (c84b9e)

  30. LN Smithee — notice my respect for the reasons expressed by DRJ for her discomfort over this decision. While I don’t agree, I understand her.

    My derision is reserved for the J. Curtis’ of the world who see a grand conspiracy in furtherance of a MexiAmericanada, and rely on Jerome Corsi for their facts.

    And Poe and the other idiot Congressman whose name escapes me are simply impervious to the facts.

    Me — I continue to return to the facts about why Ramos and Compean were prosecuted by career AUSAs in the WDTX. A letter from the Mexican consulate — while a great story for WND — is a big fat nothing for a US Attorney.

    But, the reason we prosecute people like Ramos and Compean is that they had NO KNOWLEDGE that A-D was a Mexican citizen when they opened fire on him. He might just as easily have been born in El Paso as Juarez.

    Same for the other case mentioned in the letter, where the BP agent attempted to shoot out the tires of a van fleeing from him, only to have a fragment of the bullet strike one of the van’s passengers in the face. He had NO KNOWLEDGE of who was in the van, and it wasn’t a threat to his safety when he opened fire. He might just as easily been shooting at a van full of kids on their way to a fishing hole.

    Bottom line is I don’t give a sheet about who wrote the letter or why they wrote the letter. I read SA Christopher Sanchez’s OIG investigation, and it showed the shooting by Compean and Ramos stunk to high heaven.

    Good riddance to a couple of trigger-happy cowboys who couldn’t manage their tempers, and then didn’t have sense enough to get in front of the story before it rolled over them.

    WLS (26b1e5)

  31. #29
    “The court noted that “The jury was the fact-finder. The jury heard all of the evidence. The jury returned the verdict. The jury did not believe the Border Patrol agents. It convicted them. The government’s evidence, if believed, is sufficient to uphold the convictions. And that is pretty close to the bottom line on guilt or innocence of these agents.” ”

    Like I said, it would have been interesting to see what the jury believed if the prosecutor had not allowed the smuggler to lie when on the stand. Since they knew at the time of the trial that he was lying, it seems that there should have been a responsibility of the prosecutor to make sure that the jury was made aware of the lies.

    Also, since the BP agents who testified against them lost their jobs for making false statements, it would be interesting how much credence the jury would have given their testimony had they been made aware of those false statements.

    I would have hoped that the 5th would have sent it back for a new trial at the least.

    Jay Curtis (cd3c83)

  32. Ed — who said A-D brought a gun?

    No one said they saw it — not even Compean and Ramos. They first mentioned it only after they were charged with a crime.

    They didn’t cover up their “procedural screwups” — they covered up the fact that there had been any shooting at all.

    What material facts did Sutton withhold? That’s a bold charge, now back it up.

    It wasn’t info about the subsequent load — Oct. 2005 — as that was litigated in court and the judge ruled against the defense.

    WLS (26b1e5)

  33. My derision is reserved for the J. Curtis’ of the world who see a grand conspiracy in furtherance of a MexiAmericanada, and rely on Jerome Corsi for their facts.

    Seriously, don’t you feel like a pathetic little worm much of the day? You don’t address my questions but whine about me to third parties.

    Didn’t you once whine about about the authenticity of a court document that Corsi posted at WND until I posted that I was the one who pulled the document off PACER and sent it to Corsi, at which time you ran away from the argument? Just what is your angle? There must be something you are gaining for willingly disgracing yourself so often in this case. Tell the truth, do you know Sutton?

    j curtis (c84b9e)

  34. Woe there big fella — I think the issue of the court document was resolved in my favor, and we can go back and find it exactly. I recall it had to do with the date it was filed — I think it was the criminal complaint.

    The second issue you and I crossed swords on was when you confused a “bullet” analysis with a “ballistics” analysis.

    If you want to revisit them, I’ll be happy to.

    As for some challenge you have made in this thread, you’re going to have to narrow it down. I think I responded to the one about whether Bush has “lost interest” in Agent Aguilar’s murder.

    I don’t think anyone here takes seriously your response that only the Pres. can authorize a cross-border raid to seize someone suspected of a crime in the US. Frankly, that’s not the way its done, and I only know of two instances in which it has been done — the docter accused of participating in the murder of DEA Agent Kiki Camarena; and the arrest of Manuel Noreiga. I hope you’re not suggesting we invade Mexico?

    WLS (26b1e5)

  35. Don’t know Sutton, never met him, never spoke to him. Don’t know either prosecutor on the case either.

    As for “disgracing myself”, I think I’ve pretty much taken you to the cleaners on every issue you’ve ever raised. You’re simply a brick wall against whom facts only bounce off of and fall to the ground.

    WLS (26b1e5)

  36. WLS #25:

    “At that point, as a prosecutor, my view is that its my job to bring the most serious charges I think the evidence will support, hence the superseding indictment. The defendant’s are showing no remorse or acceptance of responsibility for their misconduct.”

    I guess we disagree about this but it’s a respectful disagreement. To me, a prosecutor should be absolutely certain that a law enforcement officer is dirty before doing this and I don’t think we can say that with certainty in this case, even now.

    I know many local West Texas and Western District of Texas law enforcement and they all tell me that smugglers like Aldrete-Davila carry guns with shipments of this size in remote areas. I also called the press officer at the El Paso Border Patrol Office and told him I was interested in whether smugglers like the one in the Ramos/Compean case carry guns, and he told me that “drugs seized in remote border areas involve guns and weapons.” I honestly didn’t expect to get an answer from the BP office on this, and I was even more surprised when the press officer pointedly told me this answer came from the Director of the El Paso Division.

    Does any of this matter in the Ramos/Compean case? No. I’m a law and order person who believes in juries and this was a valid verdict. But that doesn’t mean it was a good prosecutorial decision. In addition, I think you underestimate the role the Bush Administration and the Mexican government played in the prosecutor’s decision.

    DRJ (de3993)

  37. WLS wrote:

    Me — I continue to return to the facts about why Ramos and Compean were prosecuted by career AUSAs in the WDTX. A letter from the Mexican consulate — while a great story for WND — is a big fat nothing for a US Attorney.

    You want to talk about “facts”? OK. It’s a fact that Mexican consular officials demanded prosecutions, and lo and behold, prosecutions came, courtesy of Bush’s buddy Johnny Sutton (unless you want to say Jerome Corsi forged those letters).

    You insist that’s a “big fat nothing.” Well, why have you heretofore have refused to state that an American ambassador would do the same “big fat nothing” for an American criminal? Is that because you think one would? Is that because one already has?

    The only case that comes to mind close to being similar is that of the American kid who got caught stealing street signs in Singapore and was sentenced to caning. Can you think of an example better than that?

    My derision is reserved for the J. Curtis’ of the world who see a grand conspiracy in furtherance of a MexiAmericanada, and rely on Jerome Corsi for their facts.

    If I were Johnny Sutton, I wouldn’t be inviting credibility match-ups even with Jerome Corsi. And Corsi would be a lot less credible if President Bush had a record of standing up for his country when Mexican leaders boldly assert their citizens’ perceived “right” to violate American laws.

    L.N. Smithee (d1de1b)

  38. “The exclusion of evidence relating to the size of the marijuana load and Aldrete-Davila’s alleged involvement in drug-trafficking events of October 2005 did not violate the defendants’ Sixth Amendment rights to present a complete defense nor did it deny them a proper cross-examination of a witness against them.”

    Absolutely stunning. I spoke to Congressman Dana Rhorbacher personally about this case the other day. He stated “If its the last think I do, I’ll get these guys out of prison.” Not much chance I’m sad to say.

    Stan Switek (7cfd24)

  39. LN Smithee — I have no idea if a US Ambassador would do the same thing for a US national accused of criminal activity in Mexico. I suspect not.

    But so what?

    This case is not about vindicating the interests of A-D or the Mexican gov’t. It was about prosecuting two BP agents who shot a guy running away from them. They didn’t know if he was armed or not; they didn’t know if he was a US citizen or a Mexican citizen; they didn’t know anything other than he had pissed off Compean when Compean fell in the ditch.

    Ramos heard Compean firing, and fired once himself. Ramos had the misforture of being a good shot with his service weapon. Had he not hit A-D, there never would have been a case.

    Is those the kinds of guys you want carrying guns on your behalf?

    How about an FBI Agent who comes upon the scene of a bank robbery in Dallas, and sees a white guy around 30 running out the doors of the bank and down the sidewalk. The agent jumps out and shoots at the guy 15 times and hits him. But when the agent approaches he sees that what he thought was a holstered .38 is in fact a Blackberry on the guy’s belt, and the guy is an accountant running to get a look at the getaway car’s license number.

    Was that good police work by the FBI Agent? Is that the judgment of someone you want entrusted with the authority to kill on your behalf?

    WLS (26b1e5)

  40. “To me, a prosecutor should be absolutely certain that a law enforcement officer is dirty before doing this and I don’t think we can say that with certainty in this case, even now.”

    You’re absolutely right — a prosecutor SHOULD be absolutely certain that a law enforcement officer has committed a crime before prosecuting them, the same way they should be absolutely certain that any civilian has committed a crime before prosecuting them.

    But though you might not think that there’s certainty in this case, the prosecutors, who have much more experience than you in this sort of thing, clearly did. So did Border Patrol supervisors, who also have more experience than you. And, eventually, so did a jury.

    And yes, there is a slight difference in the way prosecutors should and do typically consider charges against law enforcement. Namely, they proceed very cautiously and consider carefully whether the officers involved acted reasonably. In part, they do this because they’re prosecuting their colleagues and potentially making their jobs more difficult. Moreover, they know it’s exceptionally difficult to obtain a conviction against a law enforcement officer, especially in a case like this one. But in this case, the prosecutors did proceed, and they got a conviction.

    So (and I don’t mean this personally or intend any offense) maybe you should step back and consider whether your certainty or lack thereof is warranted, and whether it’s worth anything at all.

    Alex (1280ee)

  41. WLS – my opinion is that Sutton withheld, with a foolish trial judge, the material fact that A-D is/was a known drug runner which directly would tend to impeach (haha, more like destroy)A-D’s credibility. Screw the adversarial nature of trials. Sutton knew that A-D was a habitual POS and his people in court did everything they could to prop up his character. I want a special prosecutor to look at this.

    The following is from: http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=54534

    “Conclusion

    Reviewing this piece prior to publication, lawyer Jeri Ward commented: “It is unseemly, in my opinion, for a federal prosecutor, after fighting to exclude damaging information about the drug smuggler, to then portray him as simply a poor Mexican driving a truck filled with drugs to fulfill family obligations.”

    “It is troubling that a prosecutor put a witness on the stand who would testify that he detected no odor in van filled with 743 pounds of marijuana,” Ward observed. “That simply defies reality.”

    “Even if the judge’s ruling that the damaging information about the drug smuggler is irrelevant under the rules of evidence,” Ward concluded, “it is in violation of the spirit of ‘fair play and decency that should animate the federal prosecutor,’ as Attorney General Robert H. Jackson discussed in his famous 1940 speech entitled ‘The Federal Prosecutor.'”

    Especially in cases where no criminal investigation was ongoing until the Mexican government demanded prosecution, the Ramos-Compean case forces us to wonder how far Sutton was willing to go to get convictions.”

    Ed (59b337)

  42. Interesting thing about Justice and the Letter Of The Law. I don’t think these were a couple of “trigger happy” BP’s anymore than I think poor old Davila was just some schmuck who was trying to make a few extra bucks.

    There is one sentence in the Appellate Court’s response that struck me and I wish I had bothered to write the page and number down, but in essence it said they found that a previous trip by Davita showed he had no gun therefore there was no reason to think he had one this time.

    WTF???

    How in heck did they determine that?

    Somehow I get the impression this court is just like so many others that are very reluctant to overturn cases no matter how unjust they are.

    I, long ago, worked for a firm that specialized in Appeals, I was just a lowly assistant with little legal training but I stayed there for several years, and that was one thing I did pick up, that courts routinely stick so close to the letter of the law vs intent of the law to make you want to throw up and so long as the AUSA crossed his “T”s and dotted his “I”‘s he wins.

    It reminds me of Rhenquists wonderful statement about “Actual innocence is no bar to execution” so long as all the T’s and I’s had been taken care of. As long as procedure was done correctly, innocence has no place in court.

    I used to read cases and become sick and appalled at what had happened but because of politicians with no brains (most of them) and court’s who refused to see a difference between letter and intent, people are spending more and more time in prison.

    I am usually a harsh critic of law enforcement because of the things I saw while working appeals, but in this case I have nothing but contempt for the AUSA and his over zealous attacks on BP’s which seems to be his MO.

    I can only hope he finds himself unemployed soon when we get a new president. And no firm hires him because of his record and finds himself without a future…just like he has done to so many others. Sutton is a disgrace to his profession. There are cases and there are cases.

    And as why Bush wouldn’t pardon or commute sentences? Simple…at heart he’s a coward.

    Buzz Anderson (3781e7)

  43. 40

    “You’re absolutely right — a prosecutor SHOULD be absolutely certain that a law enforcement officer has committed a crime before prosecuting them, the same way they should be absolutely certain that any civilian has committed a crime before prosecuting them.”

    This is silly, nothing is absolutely certain. Guilty beyond a reasonable doubt is the standard.

    James B. Shearer (fc887e)

  44. Another thing about this letter that seems to be the subject of such controversy.

    The letter was written on 4/15/05.

    But the initial indictment was returned by the GJ on 4/13/05.

    And the criminal complaint was filed against them on March 18, 2005.

    So how does a letter from the Mexican consulate dated nearly a month after Ramos and Compean were arrested show that Sutton was acting at the insistance of the Mexican Consulate?

    WLS (26b1e5)

  45. Stan Switek — why not put in the Court’s other comments that justified this holding:

    “At trial, evidence—both testimonial and photographic—was introduced showing that the van abandoned by Aldrete-Davila contained a large amount of marijuana. Although he denied knowing the exact quantity of the drugs he was carrying, Aldrete-Davila admitted that he was aware that he was transporting drugs and that he was committing a serious offense. Notwithstanding the arguments they now make, however, the record shows that the defendants in fact made specific arguments to the jury based on the large size of the load itself and Aldrete-Davila’s possible motives. Thus, the specific weight and value of the marijuana load would have added little more to the case of the defense and reasonably could be seen as cumulative; Aldrete-Davila’s admission of the seriousness of the offense and the evidence of the size of the load demonstrated the point that the defendants were attempting to show by this further evidence. The exclusion of this evidence certainly placed no Sixth Amendment limitation on the defense.”

    WLS (26b1e5)

  46. DRJ — can you fix 45 for me with a block quote. Thanks.

    WLS (26b1e5)

  47. WLS wrote:

    LN Smithee — I have no idea if a US Ambassador would do the same thing for a US national accused of criminal activity in Mexico. I suspect not.

    But so what?

    “So what” is that you can’t credibly suggest it’s “a big nothing.” It means Mexico knew they had an amigo in Le Casa Blanca that would do for its criminal citizens what it most likely wouldn’t do on behalf of its own. Does that seem equitable to you?

    Is (sic) those the kinds of guys you want carrying guns on your behalf?

    How about an FBI Agent who comes upon the scene of a bank robbery in Dallas, and sees a white guy around 30 running out the doors of the bank and down the sidewalk. The agent jumps out and shoots at the guy 15 times and hits him. But when the agent approaches he sees that what he thought was a holstered .38 is in fact a Blackberry on the guy’s belt, and the guy is an accountant running to get a look at the getaway car’s license number.

    Was that good police work by the FBI Agent? Is that the judgment of someone you want entrusted with the authority to kill on your behalf?

    I don’t accept the premise that this is a valid parallel, and frankly, I find it startling that you do. Is Aldrete-Davila supposed to be the innocent accountant trying to CATCH the crooks? You would have to make him the bank robber for this to be accurate. Come on, you can’t do better than that?

    My objection to this entire situation is not that Ramos & Compean were investigated, but that the nation on this side of the border was so determined to punish them for a non-lethal event, they knowingly gave cover to a foreign national they durn well knew was guilty as sin AND unrepentant, to the extent of painting a false portrait of his innocence before a jury.

    L.N. Smithee (0931d2)

  48. Ed @ 41 — no, a Federal District Judge in the Judicial Branch of the US Gov’t ruled under Rules 403 and 608(b) of the Federal Rules of Evidence, that because A-D had asserted his Fifth Amendment rights as to questions concerning the Oct. 2005 load, and because he had not been given immunity by the gov’t with respect to that alleged crime, the defense could not ask him questions about his involvement there because no answers would be forthcoming from the witness.

    WLS (26b1e5)

  49. Does anyone know how many 5th circuit judges are from Texas? I’m working a hunch here.

    If there are more than two or three, there is no way that this court would rule against Bush/Sutton. Simply no way.

    j curtis (c84b9e)

  50. LN Smithee — but Ramos and Compean knew nothing about A-D when they opened fire. Don’t confuse what we know now about what they knew then. They didn’t even know what was in the back of the van.

    Compean was on the far side of the ditch when the van got stuck. A-D crossed through the ditch and was coming up the other side of the levee when he saw Compean standing on the levee road above him with a shotgun. Compean swings the shotgun butt at A-D but misses, loses his balance, and falls into the knee-deep water. A-D scrambles the rest of the way up the side and takes off running. Compean climbs out of the ditch and takes off after him, and when its clear he can’t catch him, Compean empties his .40 Glock and then reloads.

    So, FROM COMPEAN’S PERSPECTIVE ON THAT DAY, how is A-D different from the white guy running down the street away from the bank with something in a holster on his hip?

    Don’t give Compean the benefit of facts he didn’t know when he fired.

    WLS (26b1e5)

  51. WLS #44,

    According to the WND article, the April 2005 letter from the Mexican consulate concerned the Gilmer Hernandez prosecution.

    In the Ramos/Compean case, the IG’s office briefed US Congressmen that the Mexican consulate contacted the US consulate sometime between February 17, 2005 (when the shooting occurred) and March 4, 2005. March 4 was the date the DHS opened its investigation of Ramos and Compean.

    DRJ (de3993)

  52. Aldrete-Davila was in a desolate and known drug smuggling area fleeing from law enforcement. That’s not the same as a crowded Dallas sidewalk during business hours.

    DRJ (de3993)

  53. DRJ at 51 — I don’t see that in the article. I see this reference:

    According to the notes obtained by WND, the congressmen were told:

    Several weeks later (after the February 17, 2005 event near Fabens, Texas), the Mexican Consulate contacted the U.S. Consulate in Mexico saying that they have a person who claims to have been shot by a Border Patrol agent. On March 4, 2005, the U.S. Consulate contacted the U.S. attorney.

    And, has WND ever published the notes that it has? They publish everything else they get their hands on.

    WLS (26b1e5)

  54. Lets say the bank was in Fabens, and the guy running away was Hispanic.

    Justified?

    WLS (26b1e5)

  55. How would the US consulate contacting the US Attorney’s office get the ball rolling in Phoenix by a BP agent who gets a call from his mother-in-law?

    C.Sanchez testified that all he was given to start his investigation was the IA memorandum and R.Sanchez’s report of what he had learned from his relatives and friends of his relatives.

    Is there a serious suggestion being made that there is an underground secret paper-trail of contacts between the State Dept. (US Consulate) and the Justice Dept. (US Attorney) which happens to neatly coincide with an investigation launched by DHS Internal Affairs about 500 miles from where the incident happened?

    WLS (26b1e5)

  56. In Fabens? You’ve clearly never been to Fabens, WLS, so good luck with that one.

    As for the date of the Mexican consulate contact in Ramos/Compean, I’m stumped. All the Texas Congressmen say it was in the time between the shooting and the initial investigation but I can’t find exactly when. However, I think it’s clear that the April 2005 letter in the WND article related to the Gilmer Hernandez case. Could there be a second April 2005 letter? Maybe, but no one has said that was the case.

    DRJ (de3993)

  57. The conclusion of the Fifth Circuit’s opinion summarizes the comments I have consistent had about this case:

    But, once again, we must
    remind the defendants that the jury did not believe the defendants’ testimony
    that Aldrete-Davila possessed an object in his hand. Aldrete-Davila’s own
    testimony, the behavior of the defendants after the shooting, and the
    inconsistent testimony offered by both defendants and other Border Patrol
    agents allowed the jury to conclude that the defendants faced no credible threat
    and, consequently, there was no justification for their firing upon Aldrete-Davila.
    Although disputed, the evidence, taken in the light most favorable to the jury
    verdict, supports the scenario that Aldrete-Davila fled toward the Mexican
    border after Compean took a swing at him with his shotgun and that, while he
    was in flight, the defendants without provocation fired their weapons at him
    several times.

    Its really no more complicated than that.

    So, what’s the compelling case that these three Appeals Court Judges are all part of some grand conspiracy to keep two heroic BP agents unjustifiably jailed for 10+ years?

    WLS (26b1e5)

  58. DRJ — I think the conclusion that it happened before March 4, 2005 comes from the suggestion that the US Consulate in Mexico contacted the US Attorney on March 4, 2005. THis would have required the US Consulate have a reason to contact the US Attorney, i.e., contact by the Mexican gov’t on A-D’s behalf.

    But, in reading over some of the testimony, I thought R. Sanchez told A-D to contact the Mexican gov’t and have them report the shooting to the US Consulate because A-D was not willing to talk with R. Sanchez due to his exposure to criminal prosecution. That way R. Sanchez could at least get A-D’s version of events without A-D having to implicate himself. The contact between the consulates eventually led C. Sanchez to go to Mexico to interview A-D and present him with the immunity letter from the US Attorney.

    WLS (26b1e5)

  59. Isn’t it interesting how quick they were to offer blanket immunity to this smuggler in an attempt to prosecute BP agents?

    If a cop shot me, do you think Johnny would offer me immunity to testify against the cop? Doubtful at best.

    And I still want to know whether A-D gets to keep his blood money (settlement) since he has plead guilty to smuggling yet another load of pot into the country?

    Jay Curtis (cd3c83)

  60. Yes, I know he’s a retired federal district judge, but I’ve met a lot of idiot district court judges. WLS at comment #17.

    Ed @ 41 — no, a Federal District Judge in the Judicial Branch of the US Gov’t ruled under Rules 403 and 608(b) of the Federal Rules of Evidence, that because A-D had asserted his Fifth Amendment rights as to questions concerning the Oct. 2005 load, and because he had not been given immunity by the gov’t with respect to that alleged crime, the defense could not ask him questions about his involvement there because no answers would be forthcoming from the witness. WLS at comment #48.

    Heh.

    nk (c1e92f)

  61. WLS #17 —

    In defense of the Federal judiciary, let me just note that Rep. Poe was never a federal district judge. He was a state district judge.

    There are certainly a few federal district judges who leave a lot to be desired, as you suggest. But let’s not slander the federal judiciary by associating them with Poe.

    DWF (f8a6d0)

  62. DWF — thank you for clearing that up. For some reason I was under the impression that he had been a federal judge before running for office, and when I listened to him my reaction was “Good God — you’ve got to be kidding? He got past Senate confirmation?”

    WLS (26b1e5)

  63. WLS,

    I agree that the trial testimony indicated this case began with Rene Sanchez. Specifically, it began when Chris Sanchez received a memo from Oscar Benavides of the Border Patrol Office of Internal Audit. (Transcript VI, pp 265-266.) Supervisor Benavides was a witness in the Ramos/Compean trial. As Supervisor of the Office of Internal Audit, Benavides was head of the El Paso office also known as Internal Affairs. (Vol. VIII, pp 95-135.) Benavides’ testimony did not cover how he obtained or prepared his memo to Chris Sanchez, although Chris Sanchez testified that he received a memo from Benavides that included Rene Sanchez’s memo about Aldrete-Davila and a cover memo from Rene Sanchez’s supervisor in Wilcox, AZ.

    However, apparently the Congressmen who were briefed about this case by the Inspector General’s office believed it was triggered in whole or in part by a Mexican Consulate letter. In fact, in September 2006, at least one of the Congressmen requested that the IG’s office produce copies of all DHS-Mexican Consulate correspondence. To my knowledge, that has never been done.

    As the IG’s response states, the Congressional briefing was oral and there were no documents provided to the Congressmen. The focus of the IG’s response was an attempt to explain misstatements made by the IG’s office to the Congressmen that reflected negatively on Ramos and Compean.

    In March 2007, Johnny Sutton told Lou Dobbs how this case originated. At first he said the Mexican Consulate wrote a “standard letter that they always write in these kind of cases” to Homeland Security (DHS). Then Sutton said he wasn’t sure if it was a standard letter but that “the case originated like any other we try in El Paso.”

    DRJ (de3993)

  64. WLS #58 – I think that could also be true. We don’t know because, as far as I know, the Mexican Consulate documents have not been released.

    DRJ (de3993)

  65. Jay Curtis @ 59 — they didn’t offer him “blanket immunity.” Go read the Appellate Court opinion on the issue of the immunity agreement.

    And, what was Sutton giving up? How were they going to prosecute a guy in Mexico that had not been apprehended? They couldn’t identify him until he identified himself in his telephone conversation with Sanchez.

    WLS (26b1e5)

  66. WLS,

    I’m surprised at your hostility toward Rep. Ted Poe. Is it solely based on the Ramos/Compean case or is there something else? As a former chief felony prosecutor of Harris County for 7 years, I suspect Poe is sensitive to the concerns of law enforcement and some law enforcement officers are concerned about this case.

    DRJ (de3993)

  67. I’ve been hacked-off at all the Congressman that have gone on TV looking for votes over this case, while remaining completely ignorant of the facts. They’ve done little more than spout the talking points of the defendant’s families and their supporters, while impugning the motives of federal law enforcement agents and prosecutors who have absolutely no reason to want to go out of their way to needlessly harm two BP agents if they weren’t guilty.

    The supporters of Compean and Ramos have at all times wanted this case to be about whether or not A-D was a piece-of-sheet — but it has nothing to do with that. The case is about two BP agents who shot a guy in the back and then covered up the fact that they had done so.

    Those among their defenders who simply say “He was a drug dealer therefore Compean and Ramos couldn’t have done anything wrong” simply invite the world to partake in vigilante justice.

    WLS (26b1e5)

  68. The Congressmen were mad because the IG’s office gave them false information and I don’t blame them for being mad about that.

    DRJ (de3993)

  69. DRJ — re Poe, its stuff like this:

    Poe said he plans to introduce legislation immediately to clarify Section 924(c).

    “It was never the intent of the Congress to have U.S.C. Section 924(c) apply to law enforcement officers,” he said.

    That’s a crock. Go look at the opinion where that very issue is addressed — many law enforcement officers have been convicted under 924(c), both in the 5th Circuit and elsewhere. Poe doesn’t know what he’s talking about.

    WLS (26b1e5)

  70. WLS,

    Do you remember the movie Clueless? As Cher would say, that was way harsh, WLS.

    DRJ (de3993)

  71. WLS – under 403 and 405, does a witness who perjured himself on the stand retain immunity protections? Does the opposing side not get to inquire (out of the jury’s presence) as to perjurious testimony?

    Does not a witness who wishes to assert the 5th have to, you know, assert the 5th? In the records I have read, there is no mention of A-D asserting the 5th on the stand in this trial.

    I plead ignorance to nuts and bolts of Federal Procedure. But, it seems an obvious mistake that this judge denied the jury the opportunity to watch a full impeachment of A-D.

    Also, WLS, thank you for sticking to the argument and not attacking those who are engaging you. Good show.

    Ed (59b337)

  72. Ed,

    The 5th Circuit upheld the trial judge’s ruling that Aldrete-Davila had limited immunity, could invoke the 5th, and could not be compelled to testify if he invoked his right against self-incrimination. At the end of Vol. VII of the trial transcript, it was represented to the Court that Aldrete-Davila was invoking his 5th Amendment rights. It happened outside the presence of the jury so it might not have been highlighted as much as the testimony.

    DRJ (de3993)

  73. Thanks, DRJ.

    That procedure does not seem “right” or “just” to me. Let the jury weigh the character of all witnesses. Wasn’t the lynchpin of the Fifth Circuit’s opinion all about the jury weighing the evidence? Who the heck could know if A-D taking the 5th in front of the jury wouldn’t have been enough to sway the verdict?

    This “loophole” made it all the more imperative, imo, that Sutton and Co. not allow such a nefarious witness to testify on their behalf, knowing full well he could not be impeached by the defense and/or compelled to take the 5th in open court. An honorable and righteous man does not resort to this baloney (highly technical legal verbiage).

    YMMV

    Ed (59b337)

  74. Ed, the jury isn’t supposed to draw any inference from a witness taking the 5th.

    DWF (f8a6d0)

  75. Ed — taking the Fifth is based on every person’s right to be silent. No inference should be drawn one way or the other. Having a witness take the Fifth in front of the jury only invites them to speculate, without contributing any evidence on the question as to whether Compean and Ramos were guilty of the crimes with which THEY were charged.

    Its reversible error to force a defense witness to take the Fifth in front of the jury. Its prejudicial and has no probative value.

    WLS (8b22c0)

  76. I get that no inference, by rules of procedure, ought be drawn. I am saying that with this loophole, justice may be denied.

    If A-D were on trial and his liberty were in jeopardy with this jury, I’d scream and holler until I was hoarse that he have that right. Just as he has the right to not testify without drawn inferences.

    Is it not allowed for opposing counsel to inquire of any witness as to any immunity or deals that may have been made, in return for testimony? It seems to me that if a witness’ credibility can be impugned by this line of questioning, then the invoking of the 5th by a witness ought to be made before the triers of fact.

    I hate this case. Thanks again, WLS and DRJ.

    Ed (59b337)

  77. The defense established Aldrete-Davila was testifying under immunity and also that he was smuggling drugs. They hammered on it as much as they could. Apparently it didn’t matter much to this jury.

    DRJ (de3993)

  78. Having a witness take the Fifth in front of the jury only invites them to speculate, without contributing any evidence on the question as to whether Compean and Ramos were guilty of the crimes with which THEY were charged.

    It’s the supposed victim taking the Fifth on matters that might determine the verdict.

    Does the Confrontation Clause mean that the victim/accuser can be confronted only if the alleged victim doesn’t take the fifth? How many cases do you know of where the victim was allowed to assert the Fifth?

    j curtis (c84b9e)

  79. “The exclusion of evidence relating to the size of the marijuana load and Aldrete-Davila’s alleged involvement in drug-trafficking events of October 2005 did not violate the defendants’ Sixth Amendment rights to present a complete defense nor did it deny them a proper cross-examination of a witness against them.”

    ARE YOU KIDDING! This directly relates to credibility of the drug smuggler:

    “the jury could have gone either way, it chose not to believe the defendants’ version of the crucial events of February 17.”

    C’mon, do any of you have any legal training whatsoever?!!

    Allessio (ec6bb6)

  80. WLS, sorry I misspoke by saying “blanet” immunity. From a layman’s perspective, it is difficult to see the difference in this case.

    I still come back to the fact that all the other BP agents who testified except the supervisors were dismissed for false statements. So we have to ask “Are we sure the testimony given by the agents at the trial was true or was it simply the agreed upon party line that kept them from being charged with crimes themselves?”

    And I still don’t understand how the prosecution can allow their witness lie on the stand without it being a reason for a new trial.

    Are their no rules for the prosecution? No ethics? Would someone please explain the “ethics” that allow the prosecution to know that their case hinged on credibility but not to ensure that their witness was treeling the truth?

    Jay Curtis (8f6541)

  81. blanet = blanket
    teeling = telling

    I guess this case has pointed out to me as a citizen the very real possibility the rules of law actually being used to keep an innocent person from being able to get a fair trial.

    (Forget about Ramos and Compean when reading the previous sentence. If the rules are such that the defense can be absolutely sure that the person testifying is lying but not be allowed to prove that point for whatever reason, then the Justice system has become a farce.)

    I now have absolutely no faith in truth and justice as it relates to legal proceedings.

    Jay Curtis (cd3c83)

  82. Hmm. I think 924(c) needs to be revised or extended.
    There is a difference between

    a) someone who lawfully carries a gun is part of his duties and commits a crime

    and

    b) someone who carries a gun for the purpose of carrying out a crime

    AIUI, 924(c) is intended to deter criminals from carrying guns. It cannot possibly have that effect on people who are expected or required to carry guns and use them. LEOs who commit crimes must be dealt with, of course. But ISTM that 924(c) as applied creates automatic sentence enhancement for any LEO – which is not the intent of the statute, and could lead to perverse results, when juries refuse to convict because the add-on would be clearly excessive.

    For instance, misdemeanor possession of painkillers or amphetamines for personal use should not become a major felony because the defendant is a LEO.

    I am all for punishment of LEOs who abuse their authority or are corrut, and I believe that the special authority granted to LEOs requires that they be held to higher standards. But 924(c) as written doesn’t fit.

    There should perhaps be a separate statute for misuse of firearms by LEOs.

    Rich Rostrom (09ec82)

  83. WLS (who seems to have a particular bias – not saying that it is good or bad, just a bias – on this matter) said @ #67:
    “…while impugning the motives of federal law enforcement agents and prosecutors…”

    The aforementioned segments of our Government seem to have a knack of shooting themselves in the foot at least once overy Presidential Term.
    Bush 41 – Ruby Ridge;
    Clinton – Waco;
    Bush 43 – The R-C mess.

    The one thing positive that can be said of what happened at Fabens, is that no-one died;
    but, it seems to have generated a lot of collateral damage.

    Another Drew (8018ee)

  84. Sorry, “overy” should be “every”.

    Another Drew (8018ee)

  85. j curtis – how does the issue of whether A-D was involved in smuggling MJ 8 months after he was shot involve “matters that might determine the verdict.”

    That’s one of the reasons why the district court precluded the evidence and the Fifth Circuit agreed — it would have turned the case into a trial of A-D over the Oct. 2005 load.

    Any witness, victim or otherwise, can take the Fifth if that witness has a reasonable belief that answering the question posed to them might tend to put them at risk of being prosecuted.

    A-D had no immunity for the Oct. 2005 load, so for him to answer questions concerning that load was tantamount to giving a confession or committing perjury if he chose to lie.

    And the Appeals Court discussed what happens when the 6th Amendment right to confront a witness comes into conflict with the witness’ 5th Amendment right to not incriminate himself. Go read it and educate yourself.

    WLS (8b22c0)

  86. Jay Curtis — I’m not sure what “lies” from A-D you are talking about. I’m not defending his testimony as 100% true, but it would help this conversation if you were more specific.

    If you’re claiming the part about him being a one time driver was a lie, is there any evidence of his involvement in smuggling BEFORE Feb. 2005? The Oct. 2005 load doesn’t make it a lie for him to say he was not involved prior to Feb. 2005.

    I haven’t committed his testimony to memory, so I’m not 100% sure I know what you are referring to.

    WLS (8b22c0)

  87. Rich Rostrum — you’re incorrect in your application of 924(c). It only applies if the underlying crime to which the possession or use is related is a crime of violence or a drug trafficking crime that are felonies. Misdemeanor possession is neither.

    WLS (8b22c0)

  88. WLShow does the issue of whether A-D was involved in smuggling MJ 8 months after he was shot involve “matters that might determine the verdict.”

    Dude, we’ve gone over that a dozen times in these R&C threads. Didn’t at least one juror come forward and say that he wouldn’t have convicted if he had known that Davila wasn’t the innocent little flower that Bush Team deceptively made him out to be?

    Were you able to think of another case where the victim asserted the Fifth or not? I don’t think you answered that one.

    While you are at it, name for me another case where the “victim” was allowed to shield material witnesses. Davila stated on the witness stand that his associates watched the whole thing. These were material witnesses whose indentities Davila refused to divulge. The judge should have dismissed the case right there and then. Did the Fifth Circuit have anything at all to say about that?

    j curtis (c84b9e)

  89. Any witness, victim or otherwise, can take the Fifth if that witness has a reasonable belief that answering the question posed to them might tend to put them at risk of being prosecuted.

    It is unethical to call a witness if you have reason to believe he will take the Fifth. It seems to me that the prosecution tailored their immunity agreement to let in A-D testimony which would help them and keep out that which would hurt them. Sure, the witness cannot be compelled to give up his Fifth Amendment rights, but if the cross-examination was within the scope of direct, there should have been sanctions against the prosecution up to and including striking A-D’s testimony.

    nk (c1e92f)

  90. J Curtis — “name another case” is a stupid response. There are literally thousands of federal criminal trials every year, and there are hundreds of thousands of Circuit Court opinions about those trials going back over decades. I’m certain that if all I had to do was respond to your claims I could find many.

    But the Fifth Amendment applies to all witnesses at trial, victim or otherwise. It even applies to unindicted co-conspirators. I had an unindicted coconspirator who was testifying for the government take the Fifth about his prior drug trafficking while under cross-examination, and the Judge allowed him to do so because the jury knew he was a drug trafficker because he admitted being involved in the drug deal for which the defendant was on trial. How does it add to the jury’s understanding to have that person confess to prior drug trafficking? They already knew he was a drug trafficker and they could consider that fact in evaluation his testimony. In fact, the jury is instructed they MUST consider such testimony with extreme caution because such a witness has a reason to slant his testimony to favor the government’s case. That’s why the key to using such witnesses is to corroborate the things they testify to with other evidence that is not vulnerable to a claim of bias. In my case I had all kinds of physical evidence that matched up to what the cooperator testified to.

    I’m going to go back through the transcripts of Compean’s trial again and see if the jury instructions are included. Sometimes the court reporter will not transcribe the reading of the instructions because the judge makes the “as read” instructions part of the record of the trial. If someone has access to PACER in the WDTX, they can pull the instructions from the case file.

    WLS (8b22c0)

  91. nk — its unethical to call a witness you know will take the Fifth for the purpose of having the witness do so in front of the jury.

    Don’t auhtoritative statements on things you don’t fully understand.

    Its NOT unethical to call a witness who will testify about certain issues but who has expressed an intent to take the Fifth on other matters, so long as that fact is disclosed to the Judge and opposing counsel so the matter can be dealt with outside the presence of the jury.

    That’s exactly what happened here. The defense asked the judge to allow questioning of A-D about the Oct. 2005 load, and the Gov’t told the Court that A-D did not have immunity for that load, and he would invoke his 5th Amend rights.

    The 5th Circuit fully addressed the Trial Court’s decision to not allow the questioning and the reasons why that was a correct decision.

    Your claim about how the immunity agreement was “tailored” is nonsense. The immunity agreement was drafted and signed in March 2005. The second load didn’t happen until 7 months later.

    Are you claiming that there was some magical fortune telling by the prosecution — before a case was ever filed against Ramos and Compean — to prepare A-D to be able to take the Fifth about a crime he would not commit for another 7 months?

    WLS (8b22c0)

  92. 90

    Do you believe that an accuser/victim should be able to shield the identity of material witnesses in all criminal cases or just this one?

    j curtis (c84b9e)

  93. WLS, you continually narrow the focus of this hydra-like situation to simply whether or not Ramos & Compean were being truthful. My outrage at this entire situation is based more in what DRJ — who I presume is an attorney, unlike moi — has posted earlier:

    …I’m a law and order person who believes in juries and this was a valid verdict. But that doesn’t mean it was a good prosecutorial decision. In addition, I think you underestimate the role the Bush Administration and the Mexican government played in the prosecutor’s decision.

    Comment by DRJ — 7/28/2008 @ 4:29 pm

    If R & C are bad cops, they’re bad cops. But the actions of President Bush’s “[D]ear friend … from Texas,” “fair guy”, and “even-handed guy” Johnny Sutton and the USA’s prosecuting this case indicate that they were MORE than just bad cops to them; they were a warning shot from the White House to every BP officer who even thought for a second that they were more valuable to the nation than a well-connected drug-running weasel.

    L.N. Smithee (ecc5a5)

  94. WLS wrote: Your claim about how the immunity agreement was “tailored” is nonsense. The immunity agreement was drafted and signed in March 2005. The second load didn’t happen until 7 months later.

    Did that violate the terms of Aldrete-Davila’s immunity agreement? Yes, or no?

    If the answer is “Yes,” why did Sutton et al continue to embrace him as their star witness? If the answer is “No,” what WERE the terms of his immunity, and are they on the record?

    L.N. Smithee (ecc5a5)

  95. LN Smithee —

    But the actions of President Bush’s “[D]ear friend … from Texas,” “fair guy”, and “even-handed guy” Johnny Sutton and the USA’s prosecuting this case indicate that they were MORE than just bad cops to them; they were a warning shot from the White House to every BP officer who even thought for a second that they were more valuable to the nation than a well-connected drug-running weasel.

    This is the EXACT kind of baseless and factually unsupported crap that has me agitated over this case, and less sympathetic tham I might otherwise be. Its the product of internet based conspiracy theorists and nutters on this subject like Glenn Beck.

    The FACT is that DOJ prosecutes law enforcement officers — federal, state, and local — who shoot fleeing suspects in the back when the EVIDENCE shows that those suspects did not represent an immediate threat to the officers or the public.

    WLS (26b1e5)

  96. The agreement is set forth in detail in the 5th Circuit’s opinion. How did A-D’s subsequent conduct — which at the time of the trial had not be conclusively established — violate his immunity agreement?

    You seem to have a significant misunderstanding as to what an “immunity” agreement involves — especially an “informal” immunity letter as was used here.

    The immunity agreement was nothing more than a promise to not use the information he provided or his testimony against him. It stated

    “… no testimony or other information provided by you, or any information directly or indirectly derived from taht testimony, or other information will be used against you in any criminal case in this district, provided you do not violate the terms of this agreement.”

    A-D’s obligation under the agreement was to testify truthfully.

    The FACT is that the Oct. 2005 load had nothing to do with his immunity agreement, because the immunity agreement predated the Oct. 2005 load.

    WLS (26b1e5)

  97. #96
    “A-D’s obligation under the agreement was to testify truthfully.

    The FACT is that the Oct. 2005 load had nothing to do with his immunity agreement, because the immunity agreement predated the Oct. 2005 load.”

    And you still contest that A-D “testified truthfully”? What are you basing this on? Where are the supporting facts? How do you determine that what he said was factual? Are you SURE that he was unarmed? Do you believe that this was his first load that he smuggled? Do you believe that he didn’t know what pot smelled like?

    I know of very few people who do not know what pot smells like. Even people who have never smoked it themselves know what it smells like.

    Normally I make fun of conspiracy theories. But with all the other prosecutions of LEOs during the same time frame in this one district, and the job history of working closely with Bush before taking this position, then Bush taking the stance he did on top of all the open borders agenda that he and his cronies have been pushing… I think there is something to this one.

    You know, for years, the far left fruitcakes have wanted to impeach Bush for various reasons. If they had pressed for impeachment over his obstructionism of border security, I would donate to the cause and cheer loudly. As it is, I believe he made it clear to “his good friend” that he wanted examples made, so Johnny pushed the limits and ruined several good peoples lives.

    And would somebody explain to me why the DOJ couldn’t have allowed Ramos and Compean to be imprisoned in a minimum security prison where they would not have to spend their entire sentence in solitary confinement? And if they must be in solitary, why are they being restricted to all the same rules as the gang banger who is among the worst and most violent offenders? One shower a week? Visitation only once a month? Draconian restrictions on the books and personal items in their cells far more rigid than the people who assaulted them have to deal with? How is any of this Justice in any form?

    Jay Curtis (8f6541)

  98. Frankly I don’t like the decision. I wrote about it on my Blog – Politics is Not a Sport. Here’s the link:

    http://usacopywriter.wordpress.com/2008/07/29/ramos-and-compean-injustice-for-all/

    Shelly Borrell (bcd191)

  99. Why is everyone so outraged over this decision, the Government prosecutes everyone the same way, prosecution by ambush, no it’s a fair trial by any means, but I don’t remember any one whining when John Gottis lawyer was pulled, by naming him as an unindited coconspirator, or when a person in California was sentenced to life in prison for stealing a golf club under 3 strikes law.
    Please remember that Ramos & Compean tried to cover up their mistakes and didn’t report the shoot out.
    Why should they be treated any different than all the rest of us, every is Ok when the Government overreaches the law (like in the California case mentioned above) they did the same with Ramos & Compean by charging them with using a firearm while committing a felony, thats the law and it applies to everyone, cut & dry.
    Jonny Sutton only did what he was trained to do.
    Even the ruler must follow the rules.

    sailingwindward (c2b733)

  100. DRJ,
    Your comment #77 that the defense hammered on Davila’s drug smuggling as much as they could and that it didn’t matter to the jury puzzles me. Davila’s drug smuggling was couched in the scenario that he was some poor schmuck doing a one time run to help his mother. Why did jurors subsequently state after the trial that had they been aware that Davila was a habitual drug runner their decision would have been much different.

    WLS,
    You stated that Davila’s immunity was predicated on truthful testimony. It seems that Johnny Sutton knowingly committed gross prosecutorial misconduct by presenting Davila to the jury in this manner. Davila’s testimony was riddled with lies and falsehood. And we are supposed to accept the statement from Davila that he was unarmed? Where is the justice in giving a known drug smuggler immunity to testify against these agents and allow impeachable testimony to send them to prison for 11 years. The farthest this should have gone was for Ramos and Compean to get an administrative slap on the hand. These agents made a bad decision not to report this incident, but when in this country did we decide it is so important and so righteous to offer immunity to a scumbag drug runner who probably has committed a number of murders in the course of his business, not to mention the deaths of citizens in this country due to drug overdoses and drug related crime and accidents. And we are expected believe any of his testimony while we assail every detail of the testimony of these agents? Justice in this case would have been that this piece of dung would be left in Mexico to nurse his rightfully received wounds and the agents would have gotten their slap on the hand.

    Pardon me for being some uneducated schlub. It is obvious from your writings, WLS, that you are so superior in your logic by the way you quote legal references chapter and verse and the condescending way that you preach your legal gospel to common American citizens like me, but most Americans probably agree that your superior parsing of words and law are what gives us no confidence in our legal system to dispense justice for our citizens and this has led to the present anarchy in this country today.

    These agents have been maliciously prosecuted and should be freed today. They deserve administrative punishment and a blot on their record, but this trumped up presecution is a travesty and Johnny Sutton should be charged for prosecutorial misconduct for the way this witness was portrayed to the jury and he should be disbarred.

    rwl (523332)

  101. rwl…
    I can support the thrust of this post, if not all of the particulars.
    Amen!

    Another Drew (8018ee)

  102. Good riddance to a couple of trigger-happy cowboys who couldn’t manage their tempers,
    Comment by WLS — 7/28/2008 @ 3:42 pm

    Wait a sec, your scenario had Ramos firing a shot in a tragic mistake as he came over the hill and expected a gun fight was in process. Why “good riddance” to someone who was caught up in a tragic mistake?

    That makes you an extremely twisted person.

    j curtis (c84b9e)

  103. rwl,

    As the Fifth Circuit opinion stated, this case involved two dramatically different narratives – the government case that the agents wrongfully shot an immigrant and then tried to cover it up, and the defense case that the agents were doing their job and failed to report what happened, something they claimed was the norm in this remote Border Patrol district. I read the transcript and I assure you that both sides vigorously presented their view of what happened.

    From a legal standpoint, it doesn’t matter what you and I think happened. All that matters is what the jury thought and this jury decided the agents did something wrong. Many people were surprised by that verdict. I said then and I still believe that a jury in my community would never have rendered this verdict.

    However, from a practical standpoint, the verdict isn’t a complete surprise if you know El Paso. It sits on the far western border of Texas, the southeastern border of New Mexico, and abuts the international border with Mexico. It adjoins the Mexican city of Juarez and its citizens have close ties to Mexico and Mexicans. El Paso is not a typical American city, and I think the following statement in the prosecutor’s closing argument unintentionally highlighted that fact:

    “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 15 p 102.

    That statement shocked me when I first read it in the transcript, and I want you to think about that for a moment. Here was a prosecutor who talked about how common dope dealers are in her community, but she didn’t say it because she wanted the jury to punish them. She said it because she lives there and she knew that jury would identify with dope dealers, or families of dope dealers, because there are so many people in their neighborhoods who are dope dealers.

    There are neighborhoods in every community that have dope dealers but typically it’s the defense counsel who are asking you to identify or sympathize with them and their lives, not the prosecutors. However, in El Paso, it appears that many people in the community understand what it’s like to make their living from illegal activity. Thus, it may not be surprising that this jury sympathized more with Aldrete-Davila than with the Border Patrol agents.

    If you are interested, the comments on the El Paso Times’ story about the Ramos/Compean decision discuss this, too. There were several comments that appear to be from El Paso residents indicating it’s not unusual for El Pasoans to identify more with Mexican aliens than with law enforcement.

    We used to have an ad campaign in Texas that said: “Texas – It’s like a whole other country” and we Texans like to think we’re different and special. But when it comes to El Paso, I think that saying is really true.

    DRJ (e4b6ac)

  104. sailing windward wrote: I don’t remember any one whining […] when a person in California was sentenced to life in prison for stealing a golf club under 3 strikes law.

    That’s a ridiculous analogy.

    First of all, remember who brought California to “three strikes”; then 39-year-old career criminal Richard Allen Davis, who breezed through the revolving doors of the Greybar Hotels in California. He had a long record of assaults and kidnapping (mostly of and on women), but successfully gamed the penal system he first entered at the age of 12. In October 1993, he slipped into 12-year-old Polly Klaas’ home during her slumber party, abducted her, raped her in a wooded area, strangled her with a piece of cloth, and left her for dead. The reaction of the electorate was to put criminals on notice: Playtime’s over. You have two choices: clean up your act, or call the clink your home.

    If you’re a two-time loser already, and you listen to that little devil on your shoulder telling you to snatch a golf club, you only have yourself to blame. Presuming that this account is not an urban legend, maybe someone should have put the three strikes law in language he could understand: NO MORE MULLIGANS! For you, there’s no stealing big or little — you just plain don’t get to steal any more.

    IMHO, if you’re that maddog stupid, it’s probably not long before you will eventually do something that will grievously harm somebody.

    L.N. Smithee (0931d2)

  105. 78

    “Does the Confrontation Clause mean that the victim/accuser can be confronted only if the alleged victim doesn’t take the fifth? How many cases do you know of where the victim was allowed to assert the Fifth?”

    It is common to restrict cross-examination of accusers. In rape cases for example you are often not allowed to bring up bad conduct not directly related to the case at hand.

    James B. Shearer (fc887e)

  106. 103

    “… I said then and I still believe that a jury in my community would never have rendered this verdict.”

    If true, I don’t think I would want to live in your community. In my view the agents were obviously guilty and should have taken pleas. Their only hope was the jury would ignore the law.

    James B. Shearer (fc887e)

  107. You probably wouldn’t want to live in my community but there are many people who like it here. And I might not want to live in some towns you like but I don’t have to. Isn’t America great?

    DRJ (e4b6ac)

  108. And, the good people of El Paso, should thank their lucky stars every day that they don’t live across the river.
    How many more young women are going to disappear over there before Mexico’s authorities act?
    Is it even possible to re-assert the rule-of-law in Juarez; and by extension, Mexico?
    How soon before the same starts to happen in EP?
    If the BP is emasculated, what is to keep Juarez’ social pathologies in Juarez?

    Another Drew (8018ee)

  109. #108 – If the BP is emasculated, what is to keep Juarez’ social pathologies in Juarez?

    The 2nd Amendment.

    Apogee (366e8b)

  110. We can hope!

    Another Drew (8018ee)

  111. 105

    It is common to restrict cross-examination of accusers.

    But taking the Fifth isn’t the same as a judge restricting certain questioning. It seems to me that the victim/accuser would only be taking the Fifth after the court has allowed the question.

    j curtis (c84b9e)

  112. DRJ —

    I’m curious — Why are you so sure a jury in your area would not have voted to convict? I understand that you think an El Paso jury would be more likely to sympathize with a drug smuggler than would a jury in another locality. I’ll take your word for that. (By the way, may I infer that you’re not a big believer in the efficacy of voir dire to secure an impartial jury?) But surely you wouldn’t contend that *only* a jury sympathetic to drug smugglers could have convicted R & C.

    DWF (ff185c)

  113. DWF,

    I think Ramos and Compean would be convicted in my community if the charges were obstruction of justice or a similar charge. I also think my community would expect the law enforcement agency to severely reprimand and probably terminate Ramos and Compean for their failure to report and attempts to cover up. However, I don’t think many jurors in my community would believe:

    (1). That this or any drug smuggler in a remote section of West Texas was likely to be unarmed; or

    (2). That the drug smuggler made no threatening gesture toward the officers, even if he was unarmed.

    It’s a question of the burden of proof and the burden is on the prosecution, not the defense. It’s also a question of credibility and drug smugglers have little credibility in my community. That could change if there were clear corroboration of the smuggler’s story, such as a videotape or a neutral witness, but that wasn’t the case here.

    Finally, juries do all sorts of things and I won’t speculate what any jury would do, just the ones in my town.

    DRJ (e4b6ac)

  114. j curtis @ 97 – if I have time I’ll return to your claims about A-D’s failure to testify truthfully. Even assuming your claims are correct, the violation of his immunity agreement would not work to the benefit of Ramos and Compean, it would only serve to vitiate the immunity that A-D was given, and his testimony at trial about his involvement in smuggling the load could be used against him in a any prosecution brought naming him as a defendant.

    I’m convinced that A-D wasn’t armed because Ramos and Compean didn’t report the shooting as required. Compean lied in his post-arrest interview following waiver of his Miranda rights about many details of the incident before the shooting. The reason I think he lied and A-D told the truth about the specifics of the incident leading up to the shooting is because A-D told his version of the story to C. Sanchez in mid-March without knowing anything about what anyone else said about those specifics. When you match A-D’s version against Compean’s version — things like how Compean came to fall in the ditch, whether Compean and A-D wrestled on the ground with A-D throwing dirt in Compean’s face, etc., you realize that one of them is lying.

    How do you decide? Agent Juarez, who stood on the Texas side of the levee bank and watched the episode unfold on the Mexico-side of the levee bank, told nearly the exact same story as A-D, and did not in any way back up Compean’s version.

    Other Agents who had not been at the scene stated that neither Compean nor Ramos ever told them that they had fired at A-D, nor did either of them mention that A-D was armed or had a “shiny object” in his hand. Compean never told anyone about wrestling on the ground with A-D, he only said he got dirt in his eyes when he fell down.

    So, the first time ANYONE says A-D had a shiny object in his hand is when Compean tells that to C. Sanchez AFTER he is under arrest for assault and attempted murder. He never mentioned it to any other BPs at the scene, and he never mentioned it to anyone back at the Fabens station who wasn’t at the scene. He never mentioned that he was wresting around on the ground with A-D — and another BP agent who watched that part of the confrontation take place said no such wrestling match happened.

    Compean said he tried to use the butt end of his shotgun to push A-D away from him as A-D came up the bank of the levee — thereby offering A-D the opportunity to get his hands on the trigger while the barrel end was facing towards Compean ?!?! — but A-D told C. Sanchez in the first interview that Compean had swung the shotgun while holding the barrel, attempting to hit A-D in the head with the butt. A-D said Compean slipped when he missed, and fell face foward into the ditch.

    Funny, BP Agent Suarez said the same thing as A-D. In fact, BP Agent Suarez was so unconcerned about A-D representing any form of threat to Compean’s safety that Suarez never took his gun out of his holster.

    I’m shocked.

    And we haven’t even touched on the fact that Compean enlisted the help of another BP agent to find all his brass, and throw them into the ditch, thereby cleansing the scene of any evidence that a shooting had taken place — a shooting they never reported even though they knew they were supposed to do so.

    WLS (26b1e5)

  115. 111

    “But taking the Fifth isn’t the same as a judge restricting certain questioning. It seems to me that the victim/accuser would only be taking the Fifth after the court has allowed the question.”

    The judge didn’t just bar asking OAD about the other load he barred any other testimony about it as well so I think the Fifth is a bit of a red herring. Just like in a rape case you normally not only can’t ask the accuser about her sexual proclivities you can’t put a bunch of men on the stand to testify about them either.

    James B. Shearer (fc887e)

  116. WLS: BP Agent Juarez, not Suarez.

    DRJ (e4b6ac)

  117. j curtis @ 97:

    Re Compean and Ramos’ incarceration. The Bureau of Prisons assigns convicted defendants to particular institutions based on their security classification and space availability. Compean and Ramos were convicted of crimes of violence and use of a firearm — that significantly increases their security classification.

    The federal system has three levels of penal institutions — federal penitentiaries, federal correctional institutions, and federal prison camps. There are far and away more FCIs than either of the other two classifications. I’m not sure if they have been moved or not, but last year Compean was at FCI Elkton in Ohio, and Ramos was at FCI Yazoo City in Missippi.

    Minimum security camps are in high demand, and the spaces are generally reserved for low-risk, non-violent offenders, or prisoners who are approaching the end of the prison sentences and have demonstrated a history of good behavior. Many such camps have no external barriers.

    While it sounds terrible to say they are in “solitary confinement” like they are being punished, the fact is they are housed in what’s called “administrative segregation” away from the general population because they might be at risk of retribution if they were housed with the general population. There are not enough prison guards to assure their safety among the general population. As a result, they’re housed in a separate unit with other prisoners thought to be at risk for one reason or another, and the way to insure their safety even in administrative segregation is to limit the time the spend mingling with other prisoners.

    You can say they are in “solitary” and are being “punished” but its simply not true. I don’t think they suffer under unusual restrictions such as you describe about limits on their visitation or a restriction on what they can have in the cells. Do you have some information suggesting that is actually the case?

    WLS (26b1e5)

  118. DRJ — thanks. I was working from memory. His named is redacted from the OIG report, and I didn’t want to go scrambling around looking for the trial transcripts.

    WLS (26b1e5)

  119. No problem. I think it would be easier if I could put faces with names, but the names are hard to remember based solely on reading them in the documents.

    DRJ (e4b6ac)

  120. 113

    “(1). That this or any drug smuggler in a remote section of West Texas was likely to be unarmed; or”

    It has been reported that drug smugglers in that area are in fact likely to be unarmed based on typical arrests. I don’t think this was before the jury though.

    “(2). That the drug smuggler made no threatening gesture toward the officers, even if he was unarmed.”

    It would be extremely foolish for an unarmed drug smuggler to make a threatening gesture towards armed officers.

    James B. Shearer (fc887e)

  121. WlS,
    Compean said he tried to use the butt end of his shotgun to push A-D away from him as A-D came up the bank of the levee — thereby offering A-D the opportunity to get his hands on the trigger while the barrel end was facing towards Compean ?!?!

    Was it wrong of Compean to stand in your trafficker’s way as he was running up the ditch? What exactly would you have wanted Compean to do as Davila was coming out of the ditch? Shoot him? Jab him with the business end of the shotgun? Put his shotgun in his handy shotgun holster and grab some mace? You make the call.

    j curtis (c84b9e)

  122. j curtis — fair comment towards me @ 102.

    I have some sympathy for Ramos. The most significant factor in his decision to shoot was that he heard Compean engaged in his little one-man war.

    But Ramos had a legal duty to recognize a threat to his safety or Compean’s safety when he made the decision to discharge his weapon.

    I’ve said here before that Ramos should blame Compean for every day he spends in jail.

    But Ramos made the very conscious decision along with Compean to not report their discharge of their weapon, never told anyone they viewed A-D as a threat, etc.

    No matter what the circumstances of the shooting actually were, if Ramos and Compean had reported the shooting, and allowed the normal BP/DHS shooting incident review to take place, they would have been cleared. They would have gone on the record first with their version of events. Even if A-D had been tracked down later, and given his version of events, any investigator would have simply judged it to be the agents word against the fleeing drug smuggler’s word, and they would have closed the books.

    But they lied in the aftermath of the shooting — not reporting it, etc., — and in doing they ceded the credibility high ground to the drug smuggler whose version of events happened to match-up nearly perfectly with the one other BP agent who actually saw what happened.

    At the end of the day, it was Compean saying he saw a shiny object in his hand, and A-D saying he had nothing in his hand.

    Compean was shown to have lied about a dozen different times on the of the incident and the days and weeks to follow.

    As a result, he lost the credibility battle with the drug smuggler at trial.

    That’s hard to do, but he did it.

    WLS (26b1e5)

  123. j curtis — how about backing away from Compean while at the same time ordering Compean to lie face down on the ground with his arms outstretched to his side so that he could be searched for weapons by Compean while Juarez covered him from the other side of the levy.

    You know, follow basic arrest procedures that he had been taught in the academy and trained on repeatedly like all other federal law enforcment agents.

    Its not part of the instruction manual to swing the butt end of your shotgun at the head of a suspect who has his hands in the air.

    According to both Juarez AND COMPEAN, A-D was climbing up the Mexico-side of the levy with both hands raised over his head, and he didn’t have anything in his hands.

    WLS (26b1e5)

  124. According to both Juarez AND COMPEAN, A-D was climbing up the Mexico-side of the levy with both hands raised over his head, and he didn’t have anything in his hands.

    Comment by WLS — 7/30/2008 @ 4:25 pm

    Of course Juarez was a liar and you are lying about what Compean said. Your trafficker admitted that he was running toward Mexico as fast as he could from the bottom of that ditch and he was running diagonally. He never attempted to surrender and he even said once the shots were being fired ( after the confrontation at the ditch ) that he was certain that they wouldn’t try to actually hit him. Davila couldn’t stick to the lie that Sutton wanted him to tell on the witness stand about trying to surrender.

    Even your drug trafficking messiah Davila knew that Compean wasn’t trying to hit him with the shots but you are certain that Compean wanted an unarmed corpse on his hands that he would have had to explain. And you just refuse to admit that Davila was trying to avoid capture from the second he left the van until he got to Mexico even though he proudly admitted it on the stand.

    j curtis (c84b9e)

  125. James B. Shearer #120,

    You’re right that there was no testimony regarding how likely it is that a drug smuggler in remote areas of West Texas would be armed, although the prosecutor said outside the jury’s presence that most smugglers don’t carry weapons and that is true.

    If there had been testimony, I believe it would have confirmed my statement in comment #36. I have been told repeatedly by LEO in my area and by Border Patrol agents, as well as by the El Paso Border Patrol press office (none of whom were under oath) that while the vast majority of smugglers are picked up at border crossings and they don’t carry weapons because it would bring attention to them, smugglers in remote areas are almost always armed. They don’t carry weapons to protect themselves from law enforcement. They carry weapons to protect themselves from other smugglers and criminals who try to steal their loads, money, IDs and vehicles.

    Also, I agree it would be foolish for a smuggler to make a threatening gesture while being chased by law enforcement. Of course, people do foolish things all the time and many of these smugglers are desperate and/or not that bright, which is why they can be convinced to take great risks for little reward. It’s also easy to make a gesture while panicked and running that may seem threatening, even if it’s not intended to be threatening.

    DRJ (e4b6ac)

  126. Maybe he was deterred from carrying by 924(c)(1)(A)?

    DWF (c2017b)

  127. That’s what prosecutors argue and it could be true for Aldrete-Davila and others. So far, though, he doesn’t seem like the kind of guy who is deterred by criminal penalties.

    DRJ (e4b6ac)

  128. 125

    “If there had been testimony, I believe it would have confirmed my statement in comment #36. I have been told repeatedly by LEO in my area and by Border Patrol agents, as well as by the El Paso Border Patrol press office (none of whom were under oath) that while the vast majority of smugglers are picked up at border crossings and they don’t carry weapons because it would bring attention to them, smugglers in remote areas are almost always armed. They don’t carry weapons to protect themselves from law enforcement. They carry weapons to protect themselves from other smugglers and criminals who try to steal their loads, money, IDs and vehicles.”

    I suspect remote areas means off road. I understood the claim that smugglers like OAD are typically unarmed to be based on similar arrests in the Fabens area.

    James B. Shearer (fc887e)

  129. I think this location is exactly what is meant by remote. There are few places as remote and unpopulated as the border south of Fabens where a border crossing could occur. (There are many remote places along the Rio Grande but they are often impassable for vehicles or they are a significant distance from roads and transfer points.)

    I won’t speak for all border points but in West Texas I’ve been told that the only places that rarely have armed smugglers are the designated border crossing points that have bridges manned by BP agents. This was not one of those points. Of course, it’s possible that my information is wrong but I’ve been told this by too many people whose lives depend on knowing the real facts for me to discount it altogether.

    DRJ (e4b6ac)

  130. This Houston Chronicle article describes the reaction to this case from various Texas lawmakers. Sen. Cornyn called on President Bush to commute Ramos’ & Compean’s sentences based on prosecutorial overreach (a request that Bush spokesperson Dana Perino “sidestepped”) and a Texas Congressman “introduced legislation this week that would prohibit prosecutors from seeking enhanced penalties for gun crimes against law enforcement officials acting in the line of duty.”

    DRJ (e4b6ac)

  131. I love that word, “sidestepped.” Makes me think of that classic Charles Durning number from Best Little Whorehouse in Texas:

    “Ooohh, I love to dance a little sidestep. . . “

    DWF (c2017b)

  132. To be serious, the characterization “sidestepped” isn’t really fair to Perino. After all, what else was she supposed to say?

    As for Congressman Culberson, I think he needs a long rest. “Political prisoners,” indeed.

    DWF (c2017b)

  133. WLS in #122 basically sums it up. And now that the appeal is over, ( the USSCt will not hear any appeal from the Fifth on this ) and Bush is very unlikely to pardon Ramos and Compean.

    The case is essentially over now.

    SPQR (26be8b)

  134. Juarez is a liar — is that the best you’ve got?
    How is it that Juarez managed to lie in such a fashion that his desciption of events matched nearly perfectly with what A-D told C. Sanchez in Mexico two weeks earlier? How do 2 liars who have never met each other manage to tell the same exact lie, yet the one truth teller in this whole affiar — Mr. Compean in your view — manages to not tell anyone about a gun, shiny object, or even the fact that he had fired his weapon?

    A-D testified that he was climbing up the south side of the levee with his hands in the air because there were at least 2 BP agents on the north side of the levee with their weapons drawn and pointed at him. Vol. VII, p. 101.

    A-D said that when Compean was pointing his rifle/shotgun at him from the top of the levee, A-D’s intention was to give up and be arrested — that’s why he had his hands in the air. Vol. VII, p. 106-107.

    A-D then said that Compean turned the rifle around and tried to hit him with the butt end. A-D tried to block it, but Compean missed him altogether, so A-D took off running to the right (west) of where Compean was standing above him. Vol VII, p. 110.

    Both defense attorneys cross-examined him on these points and he remained consistent in his story, and it matched what he had told Sanchez in his interview.

    I’ll post Juarez and Compean’s version later.

    WLS (26b1e5)

  135. DWF #112,

    I got caught up in my other comments and neglected to answer your question about voir dire. I believe voir dire is a useful and important tool in litigation, and I think these attorneys likely used the information from voir dire and juror questionnaires in their trial tactics. For instance, the attorneys probably had some knowledge about the juror’s neighborhoods, job/socioeconomic backgrounds, and family ties. That may have played a role in the prosecutor’s decision to talk about neighborhood dope dealers in closing argument.

    DRJ (e4b6ac)

  136. All districts are different. But in the two that I have tried cases in, the only info we ever got about jurors — and we get it on the morning of jury selection — is the town they live in. Nothing more specific than that. In a large federal judicial district, the area of the district that a person is from can sometimes give you a clue as to their views on the world, but no always and not with any particularity.

    WLS (26b1e5)

  137. WLS,

    I agree with you that Ramos and Compean did themselves no favors but Juarez is not the best proof of that. Juarez went through 4-5 versions of his story during the course of the investigation. After several frustrating meetings, Sanchez threatened Juarez with indictment if he didn’t tell the truth and then Juarez provided information that was (according to Chris Sanchez) “wholesale different” from his prior interviews. (Trial transcript Vol. XII, pp 87-88)

    Juarez also had trouble telling a consistent story at trial. The prosecutor was reprimanded throughout Juarez’s testimony because he had to lead him to elicit his story. In addition, Chris Sanchez later testified that he heard Juarez’s testimony in the trial and he didn’t believe Juarez told the truth about the drainage ditch, although he later clarified that by saying he thought Juarez was one of those people who have trouble expressing themselves. (Vol. XII, p 88-89)

    There are plausible reasons for all of this and I’m not saying Juarez’s story was a lie. I just don’t think he was the prosecution’s best witness.

    DRJ (e4b6ac)

  138. 122

    “I’ve said here before that Ramos should blame Compean for every day he spends in jail.”

    Perhaps he does. On the other hand Compean could blame Ramos since it was Ramos who actually shot the guy. In reality they both made a whole series of bad decisions that put them where they are today and largely have themselves to blame.

    James B. Shearer (fc887e)

  139. This case will not be a chapter in a “Finest Hour” book.

    Another Drew (8018ee)

  140. On that we can agree. Thank you, James B. Shearer.

    DRJ (e4b6ac)

  141. James B — yep, but for the fact that Ramos actually managed to put the bullet in A-D’s backside after Compean failed 14 times, there would have never been a case.

    WLS (26b1e5)

  142. #137

    And that’s WLS’s idea of a trustworthy witness. That’s all anyone needs to know about WLS.

    j curtis (c84b9e)

  143. j curtis,

    Witnesses often have trouble telling their stories but that doesn’t mean they lie. I think at first Juarez tried to support his fellow agents and later he was scared and confused. I don’t know if we ever really heard the complete story from Juarez but that doesn’t make him a liar. In my opinion, Juarez wasn’t an effective witness but the jurors saw him and maybe they found him convincing.

    DRJ (e4b6ac)

  144. I am going to have to change my screen name as it is too easy to confuse Jay Curtis with j curtis, two separate people.

    Ramos and Compean treated worse than prisoners at Gitmo

    “Ramos and Compean, on the other hand, are remanded to a single cell for 23 hours a day, without access to any of the privileges given to inmates in general population.”

    Solitary conditions

    “Although the prison tries to make a distinction, she noted, “the protective measures are punitive, so he suffers all of the same restrictions as those there for disciplinary reasons.””

    There was also a special on court TV that covered what was allowed to a prisoner who was in solitary at Federal Correctional Institutions.

    Typical conditions were 23 hours locked in a cell with no radio or television, only reading material was a bible and paperwork concerning the prisoners case. Showers were weekly and visitors were monthly.

    I have been unable to find anything official on the web describing the restrictions placed on Ramos and Compean. However, this description of “Administrative custody” at another prison mirrors the 1994 International Covenant on Civil and Political Rights regarding what a prisoner is allowed while in solitary confinement.

    “He is kept in his cell 23 hours a day, five days a week, and 24 hours a day for the other two days. He eats meals alone. He has been denied visits with family. He has no organized activities, no radio, no TV, no telephone calls “except emergency or legal calls,” no books other than legal materials “and a personal religious volume.” At the appeal hearing, prison officials acknowledged that they generally are concerned about the psychological damage to an inmate after 90 days of such confinement and would generally recommend transfer to the general population after 90 days as a consequence.”

    Jay Curtis (8f6541)


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