This is a follow-up post to this morning’s post about the Border Patrol shooting case.

In comments to my earlier post, Tom Maguire provides this link to statements about the case from Andy Ramirez, Chairman of “Friends of the Border Patrol” (Maguire says: “guess which side they are on?”). The document sets forth Ramirez’s testimony before the House Judiciary Committee, relating to various immigration issues. He addresses the Compean/Ramos case at page 41. Ramirez is not a percipient witness in the case, but rather speaks as someone who has taken an interest in the case from the perspective of the recently sentenced agents.

His statements about the case are rather unfocused and rambling, and it’s hard to know what to make of them. Maguire excerpts this portion:

In a nutshell, the border patrol agents engaged in a pursuit of Aldrete-Davila as they were trained to do, and violated the pursuit policy forbidding them from pursuits without the permission of supervisors. Compean cut the smuggler off at the Rio Grande River upon which a scuffle ensued as Aldrete-Davila tried to evade capture and re-enter Mexico.

Compean was overpowered and left bleeding from a cut. At this point, Ramos was attempting to get to the scene where the struggle had taken place and heard shots fired, though he could not see the scene, but understood as he was a firearms instructor that Compean had to be in trouble. As he entered the scene he saw, Compean down and cut and attempted to capture Davila who was still fleeing towards Mexico. At this point, the smuggler turned and the agents’ thought he had a weapon in his hand at which point Ramos fired one shot from his sidearm.

Neither agent at the time thought any shots had ever hit the smuggler, as he did not fall, limp, or showed any discomfort. Once in Mexico Aldrete-Davila was met by a vehicle, which he entered and sped away.

A number of agents, including a supervisor had reached the scene, and secured the smuggler’s load-vehicle, which was filled with 743 pounds of marijuana.

Maguire adds:

Apparently, most of the agents on the scene, including Juarez, whose testimony was cited above, are facing disciplinary problems themselves (no one filed a discharge of firearms report), and the allegation is that they have been encouraged to cooperate with the prosecution by taking an imaginative view of the truth.

Why the prosecutor might have it in for these two agents did not jump off the page at me.

Me neither.

To me, the document’s most significant allegation is that Agent Sanchez, the Border Patrol agent who witnessed the shooting according to the U.S. Attorney’s fact sheet, was allegedly a lifelong friend of the drug smuggler who was shot. [UPDATE 2-15-07: I got that wrong. An Agent Juarez witnessed the shooting, not Sanchez. This is far less significant.] But the statements about this are bizarre. For example:

The smuggler testifed that he and Rene Sanchez had not seen each other in the past year, while Rene Sanchez testified that he had not seen the smuggler since he was seven years old.

. . . .

When Rene Sanchez took the stand he testified that he had not seen the smuggler for approximately eight years.

Is Agent Sanchez fifteen years old? Obviously not. So what gives? Did Agent Sanchez really contradict himself that blatantly? Or do the Friends of the Border Patrol have their facts garbled? I honestly have to say that I have no idea which possibility is the right one.

I am intrigued, however, by the apparent fact that the agent/witness and the drug smuggler/shooting victim ever knew each other at all. That fact alone makes the unbiased observer wonder if something more isn’t going on here. [UPDATE 2-15-07: Far less so now that I realize that Agent Juarez is the one who witnessed the shooting.]

However, the testimony from Ramirez, the Friends of the Border patrol fellow, does absolutely nothing to explain arguably the most damning evidence against the agents: the fact that they picked up their shells, filed a false report about the incident, and pretended like it had never happened. To me, those are the actions of people who did something wrong and knew it. Ramirez’s only response is similar to that offered by Debra Saunders: that failing to report the shooting is an administrative issue with a maximum punishment of 5 days’ suspension. (I find that hard to believe; if it’s really true, the Border Patrol needs to change its rules, as failing to report a shooting strikes me as a serious offense.)

But Ramirez never addresses what those actions tell us about the agents’ state of mind. If they didn’t do anything wrong — if they fired at a guy whom they believed had been armed — why not just report the shooting and give supervisors the explanation?

Don’t tell me that they picked up the shells just to avoid filling out some paperwork. I don’t think there’s a cop alive who would buy that explanation. Law enforcement personnel are trained that any use of force — even tackling a suspect or pepper-spraying him — requires extensive documentation. Firing their weapons takes it to a whole different level, and cops are trained in the importance of following procedure in such cases. They know that any failure to fill out the necessary reports, if this failure is discovered, will cause supervisors and others to be very suspicious of the use of force.

Why risk that? I can think of only one reason: because the agents did not want the shooting to be investigated — because they knew they had done something wrong.

If a cop pretends as though a shooting like this didn’t happen, he is almost certainly hiding something.

If there’s an alternate explanation, I have yet to hear it — from Ramirez, from any of you, or from Debra Saunders.

Speaking of Debra Saunders, I wrote her with a link to my post. She didn’t appear to be very interested:

I get hundreds of emails each week and do not have the time to answer that long piece. Suffice it to say that I left out a number of facts from both sides of the issue because I have limited space. I am aware of the limitations I face writing about a trial I did not attend, which is why I worked hard to get Sutton’s views across. That said, I do not believe, and I wrote this, that these men should spend a night behind bars if Sutton is correct.

DJS

Finally: Saunders’ column and Ramirez’s testimony both raise the issue that perhaps as many as three jurors had argued for an acquittal but ended up voting guilty after the foreman told them that the judge wouldn’t accept a hung jury. These jurors don’t sound too bright to me, frankly, but if there is any truth to that claim, it will certainly be a ground for appeal. I’m content to let the legal process work it out, and determine whether something improper happened, or whether jurors are just having second thoughts after reading media coverage about the case.

[posted by Justin Levine – not Patterico]

Can a judge show a complete lack of judicial “restraint” and yet somehow avoid the label of being an “activist” judge? I say, “Yes!” Here’s how. [hat-tip: Courthousenews.com]

UPDATE BY PATTERICO: I should note that there is no proof of the allegations at the link. There are merely accusations, which are not the same as proof.

[posted by Justin Levine – Card carrying member of the JL. See, even the initials in my name confirm it.]

Those darn Jews are apparently at it again. I think this was really written by Borat.

Jack Dunphy has an excellent piece about the Board of Rights hearing exonerating Officer Steven Garcia in the Devin Brown shooting. (So you guys can stop writing me asking me to link it already.) I especially like Jack’s comments about the L.A. Times‘s wretched coverage of the issuance of the Board’s decision:

Leading the Chorus of the Perpetually Outraged is of course the Los Angeles Times, whose writers and editors erected a veneer of objectivity in their coverage but nonetheless left their bias on vivid display.

I especially liked this bit, in which Dunphy echoes my sentiments from recent days:

When the board’s rationale was released, did the Times run the story on its front page, as they did the original story? No, they did not. The story instead ran on page B10 of Saturday’s edition. Even more incredible — and more revealing about the agenda at the newspaper — is the story they chose to run on page B1 (and which they teased on page A1). “Officer had been warned in prior case,” read the headline, and the story that followed told of Officer Garcia’s 44-day suspension that resulted from an incident in 1997.

Thus, though the Times decried the secrecy surrounding the board’s decision to clear Garcia, the rationale for that decision was deemed less newsworthy than a nine-year-old incident that, conveniently for the Times, portrays Garcia in a negative light.

That sounds a lot like what I said in this post.

Dunphy notes an interesting omission from the story:

Had the Times investigated the matter further, they would have learned that Garcia was given a bureau commendation for his actions that night, which resulted in the arrest of a man wanted for multiple felonies, including attempted murder. Perhaps there wasn’t sufficient space in the paper that day to print such trivial details.

Read it all.

P.S. A personal note: Dunphy provides a link to an interesting document that I’d never seen before: the memo by the District Attorney’s office declining to prosecute. I looked to see who wrote it and realized that I know the guy: Christian Gullon. He was in my training class and is a very bright, capable, tenacious, and hardworking D.A. He and I never talked about the case, and I have zero inside knowledge about it. But from what I know of Christian, I have little doubt that, if there had been a prosecutable case there, he would have pursued it.

A few days ago, Bradley J. Fikes wrote me to ask whether I was going to write anything about the Border Patrol agents recently sentenced to double-digit prison sentences for firing on an alleged drug smuggler. He sent me a link to this October 22, 2006 column by Debra Saunders, who is, Bradley says, known for being careful with her facts. Saunders called the case “a case of blind and bloodthirsty federal prosecutorial overkill.” In looking into the case, I found another column by Saunders, from August 24, 2006. The issue has become news again in recent days because of calls for a pardon for the agents.

I told Bradley that I was unlikely to write about it. I hadn’t known anything about it before he told me about it, and I have no special insight into it.

But after I read this fact sheet prepared by the U.S. Attorney of the District where the case was prosecuted (h/t Hot Air), I thought it might be interesting to compare the U.S. Attorney’s claims with Saunders’s claims in her two columns.

The “fact sheet” is a list of alleged “myths,” compared to the reality as the U.S. Attorney describes it. I have no idea what the true facts are; I didn’t see the trial, and as I said, I know little about the case. Still, it makes for interesting reading alongside Saunders’s columns. If the U.S. Attorney’s facts are true, it does much to counter the impression left by Saunders’s columns.

Let’s start with a major one: did the shooting victim pose a threat? Was he armed with a gun? Here’s Saunders from October 22:

In February 2005, Border Patrol agent Jose Alonso Compean got in a scuffle with smuggler Osvaldo Aldrete-Davila, who was driving a van that carried 743 pounds of marijuana. Compean and fellow agent Ignacio Ramos shot at Aldrete-Davila — they say they thought he had a gun, which Aldrete-Davila denies.

This claim is contradicted pretty powerfully by one salient statement in the U.S. Attorney’s fact sheet, which is not noted in either of Saunders’s columns — namely, that the jury apparently heard from a Border Patrol agent who witnessed the shooting and testified that the victim had no weapon and posed no threat:

Border Patrol Agent Juarez, who was at the scene, testified at trial that he did not draw his pistol because he did not believe there was a threat. He also testified that Aldrete [the shooting victim] did not have a weapon and was almost to Mexico when Agent Compean began firing at him.

If this is true — and this U.S. Attorney is sure opening himself up to some major embarrassment if it’s false — Saunders should have told readers about that. Instead, she implied that the trial was a case of the drug smuggler’s word against the agents’ word:

As everyone knows, drug smugglers would never carry a concealed weapon and prosecutors should take a drug-ring lieutenant’s word over that of Border Patrol agents with clean records — because the smuggler would tell the truth even if he had a $5 million incentive to lie. (Yes, that was sarcasm.)

Saunders never tells readers about the testimony of Border Patrol Agent Juarez.

Further statements from the U.S. Attorney’s fact sheet seem to indicate (if true) that the victim was not a threat to the agents:

Testimony further revealed that Agents Compean and Ramos never took cover not did they ever warn the other agents to take cover. This action demonstrates that they did not perceive a threat. In his statement to investigators, Compean admitted that Aldrete had attempted to surrender with both hands open and in the air. . . . Agent Juarez also testified that Aldrete was surrendering to Compean with his hands open and empty palms turned to Compean.

Saunders doesn’t mention that either.

Saunders does mention another fact that goes against the agents — their curious decision to pick up the casings from the shooting, and pretend like it had never happened: “The agents picked up their shells and failed to report the shooting.” But she treats that as a mere administrative issue, deserving of a reprimand: “For that violation of agency policy, Ramos and Compean deserved an administrative review and some sort of job-related punishment.” She never seems to ask why they did it — and to consider the possibility that their actions show that they knew they had done something wrong, and perhaps criminal.

Saunders never asks that question — but I bet the jury did when it decided to convict.

Saunders from August:

[T]hese are good guys with no other marks against them. Ramos, who was nominated Border Patrol Agent of the year in 2005, told the San Bernardino County Sun, “There’s murderers and child rapists that are looking at less time than me.”

From the fact sheet:

Agent Ramos has never received any formal recognition or award for being the Border Patrol Agent of the year. In fact, he has been arrested on at least two occasions for domestic abuse and was formally disciplined for conduct unbecoming a federal officer.

On the Border Patrol Agent of the year issue, there’s no formal contradiction there; Saunders said he was “nominated.” But “no other marks against them”??

Saunders from October:

Instead, due to a case of blind and bloodthirsty federal prosecutorial overkill, Ramos and Compean were sentenced to 11 years and 12 years respectively. Oh, and the smuggler was granted immunity for the 743 pounds of pot, and is suing the federal government for $5 million.

Assuming that the U.S. Attorney’s fact sheet is accurate, it is, I submit, misleading to state the smuggler was granted immunity for the pot. Saunders leaves the reader with the clear impression that a) there was a prosecutable case against Aldrete for the pot; and b) the U.S. Attorney made a blanket promise to Aldrete that he would not prosecute Aldrete for the pot if he testified. According to the U.S. Attorney, both implications are false. First, he says, he had no case against Aldrete:

Because the agents could not identify him, found no fingerprints, could not tie him to the van and did not apprehend him after shooting him, the case against Aldrete could not be proven.

The only way we know Aldrete was the smuggler, the U.S. Attorney says, is because he later admitted it — only after the U.S. Attorney’s office gave him a limited form of “use” immunity to secure his statements for use against the agents:

When Aldrete then got back to Mexico without having been apprehended and identified, there was no longer any way to tie him to the load of marijuana, except through his own admissions.

Prosecutors promised Aldrete that they would not use his truthful statements and testimony to prosecute him for the events that occurred on Feb. 17, 2005. . . . This type of “use immunity” does not give blanket immunity for any crimes he may have committed or may commit in the future. If there were other admissible evidence besides his own statements sufficient to convict him, he could be prosecuted for the offense he describes.

As a practical matter, the promise to Aldrete gave up very little since the case against him was not prosecutable . . . there was no evidence against him until he agreed to cooperate.

Saunders tries to make it sound as though the Agents were treated more harshly than they would have been if they were “crooks.” From her October column:

If they were crooks, they would serve shorter time. Last month, a Border Patrol agent, who admitted to smuggling 100 illegal immigrants while he served on the Border Patrol, got five years.

The U.S. Attorney says:

Congress determined the penalties imposed on Compean and Ramos by setting the punishment for discharging a firearm during a crime of violence at a mandatory minimum of ten years (on top of any other sentence imposed). Congress did not make an exception for law enforcement officers.

So yes, people get different sentences for different crimes. If they had been crooks, they would have gotten sentenced as crooks. Instead, they got sentenced for a crime that Congress deems more serious: firing a gun during a crime of violence. Is it so surprising that the penalty is greater than it would be for mere crooks?

Saunders quotes the U.S. Attorney as saying that the agents “fired at least 15 rounds at [Aldrete], although they had seen his open hands and knew that he was not holding a weapon and had no reason to think he had a weapon, hitting him once and causing serious bodily injury.” The U.S. Attorney elaborates in his fact sheet:

In America, law enforcement officers do not get to shoot unarmed suspects who are running away, lie about it to their supervisors and file official reports that are false. That is a crime and prosecutors cannot look the other way.

Sounds pretty sensible to me.

If the U.S. Attorney’s fact sheet is accurate in all respects, then I think Saunders has disserved her readers with her one-sided columns, and this is all a tempest in a teapot. If the facts are as the U.S. Attorney reports them, a couple of Border Patrol Agents committed a crime, got caught, and were punished. Simple as that.

UPDATE: Saunders has another column on the issue today (h/t aunursa). It’s basically more of the same. She continues to imply that the trial was a “he said, she said” contest between the word of a drug smuggler and that of the agents charged in the shooting:

In this case, however, Ramos and Compean say they thought the suspect was armed. Sutton says that’s not true. Ditto the drug smuggler — but he has 5 million reasons to lie.

Ditto another agent — but Saunders still isn’t telling readers that — even though she apparently quotes the fact sheet:

Sutton hates being called “an overzealous prosecutor.” As he said in a statement, “In America, law enforcement officers do not get to shoot unarmed suspects who are running away and file official reports that are false.”

That looks like a direct quote of what I blockquoted above — with one omission, which I’ll bold:

In America, law enforcement officers do not get to shoot unarmed suspects who are running away, lie about it to their supervisors and file official reports that are false.

There’s not even an ellipsis to mark the missing phrase. Has Saunders discovered Isikoffing?

I still think Saunders is not giving her readers the full picture, which is very disappointing given that she has now apparently read the U.S. Attorney’s fact sheet.

UPDATE x2: Commenter Tom Maguire has provided a link to a document that sets forth some interesting allegations on behalf of the defense. I discuss them in this post.