[Guest post by DRJ]
Oral argument in the Ramos-Compean appeal was heard this morning before three judges of the Fifth Circuit Court of Appeals in New Orleans. The Dallas Examiner filed this report:
“Federal prosecutors may have overreacted in their case against two Border Patrol agents who were sentenced to lengthy prison terms after they were convicting of shooting a fleeing drug suspect and hiding evidence of the incident, an appeals court judge said Monday.
“It does seem to me that the government overreacted here,” said Judge E. Grady Jolly, one of three judges of the 5th U.S. Circuit Court of Appeals hearing the case of Ignacio Ramos and Jose Alonso Compean.
Jolly, during questioning of [AUSA Mark] Stelmach, said that if the agents had reported the shooting as required, “this prosecution never would have occurred, in all likelihood.”
“For some reason, this one got out of hand, it seems to me,” Jolly added.”
Reaction from the attorneys was mixed:
“There was no indication when the judges would rule in the appeal, but Compean’s lawyer, Bob Baskett, said he was encouraged by Jolly’s comments. “They certainly were aware of the signficant issues in the case,” Baskett said after Monday’s hearing.
Ramos’ attorney, David Botsford, said he didn’t read anything into the judges’ remarks. “The court is going to follow the law,” he said outside the New Orleans courthouse.
Assistant U.S. Attorney Mark Stelmach declined to comment after the hearing.”
I don’t think this statement by Judge Jolly means he necessarily believes the conviction should be set aside but it probably made defense counsel happier than it made the US Attorney’s office.
UPDATE 12/3/2007 @ 1:50 PM PST: Here’s further context from a Houston Chronicle article that suggests Judge Jolly’s comments regarding whether it was appropriate to charge the agents with discharging a firearm during a crime of violence:
“It does seem to me like the government overreacted here,” said Judge E. Grady Jolly, questioning prosecutor Mark Stelmach before a crowded courtroom. “There were plenty of statutes you could have charged.”
Jolly asked whether Ramos or Compean would have been prosecuted if they had reported the shooting of Osvaldo Aldrete Davila, who was wounded on Feb. 17, 2005, near Fabens, southeast of El Paso. Compean picked up the shell casings at the scene of the shooting and neither agent volunteered to supervisors that they fired their weapon. “They are being prosecuted for hiding the crime,” Jolly said, suggesting the prosecution “got out of hand.”
Stelmach argued there was “balance in the treatment of the agents,” saying the judge could have given them stiffer sentences on other charges besides the firearm offense such as assault.
Attorneys for the former agents are pushing for a new trial, arguing the agents acted in self-defense. They also contend that Ramos and Compean were improperly charged with discharging a firearm during a crime of violence.
Bob Baskett, Compean’s attorney, said that statute should not be applied to law enforcement officers acting in the line of duty.”
UPDATE 2, 12/3/2007 @ 11:00 PM PST: Fox News reports Judge Higganbotham’s comments regarding the relevance of Aldrete-Davila’s other smuggling attempts:
“In exchange for his testimony against the agents, Aldrete was given immunity from prosecution for allegedly trying to smuggle drugs the day he was shot. Jurors didn’t hear evidence that Aldrete allegedly smuggled marijuana in the United States several months after the shooting.
Botsford said Judge Kathleen Cardone, who presided over the trial in El Paso, Tex., should have allowed jurors to hear evidence that Aldrete was “not a (drug) mule, a simple one-time (border) crosser.” “He basically left a false impression for that jury,” Botsford said of Aldrete.
Judge Patrick Higginbotham, who heard the appeal with Jolly and Judge Edward Prado, said evidence that Aldrete made multiple attempts to smuggle drugs across the border “strikes me as very relevant.”
[Prosecutor] Stelmach acknowledged that Aldrete told “some lies” to investigators, but he said jurors rejected the agents’ argument that they acted in self-defense when they shot at Aldrete.”