Texas Border Patrol Shooting Case: Comparing Debra Saunders’s Columns to the U.S. Attorney’s Fact Sheet
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.