'It's a shame what is being done to him' (Sutton again?)

Guillermo "Gilmer" Hernandez, former Edwards County deputy sheriff, says he feared for his life and was just doing his job when he shot at the tires of a vehicle carrying Mexican nationals after, he says, the driver tried to run him down.

But federal prosecutors say that because the vehicle was heading away from him, he illegally used deadly force, violating the civil rights of a woman slightly wounded in the 2005 incident.

Hernandez, 25, faces sentencing March 19 in Del Rio, where he has been held in a federal detention facility since being convicted, in December. He faces up to 10 years in prison.

His sister, Jessica H. Chavez of Fort Worth, can't stand to see her brother behind bars and has been helping push a Web-based national petition drive seeking a presidential pardon. The case is drawing attention in Congress, largely because the it is being prosecuted by the same U.S. attorney's office that won controversial convictions against two Border Patrol agents in an unrelated shooting of a Mexican drug smuggler.

"Our justice system has failed," said Chavez, a 23-year-old administrative assistant. "I know that my brother wouldn't ever do anything to harm anybody or anything.

"He was simply doing his job that day, and it's a shame what is being done to him now."

In April 2005, Hernandez, made a traffic stop in Rocksprings, a city of nearly 1,300 residents west of San Antonio.

Reports show that Hernandez pulled over a blue Chevrolet Suburban for running a red light. Asked to step out of the vehicle, the driver drove away instead, the sheriff has said. Hernandez, who said the vehicle tried to run him over, fired several shots at the tires, puncturing one.

When the vehicle stopped, all the occupants fled except the wounded Maricela Rodriguez-Gardia, who was among those who paid thousands of dollars to be taken across the border from Mexico.

Rodriguez-Garcia was struck in the lip by a bullet or fragments, prompting the charge of violating her civil rights.

Officials say an investigation by the Texas Rangers and other law enforcers initially cleared Hernandez. But more than a year later, the U.S. Department of Justice reopened the case based on the testimony of some of the illegal immigrants involved.

Hernandez -- a husband and father of an infant daughter -- was convicted Dec. 1 of violating a person's civil rights.

For family, friends and others in Rocksprings, it's a case of "Deputy Gilmer" vs. the increasingly controversial U.S. District Attorney Johnny Sutton, who has been embroiled in the fallout of prosecuting two Border Patrol agents for shooting a Mexican drug smuggler.

The agents -- Ignacio Ramos and Jose Compean -- were convicted on charges including assault with a deadly weapon and causing serious bodily injury after they shot a Mexican national in the buttocks after he abandoned a van loaded with marijuana near El Paso.

Conservative lawmakers have rallied behind the agents, criticizing Sutton, appointed in 2001 by President Bush to represent Texas' western district, and pressuring him to free the agents.

Sutton's office has declined to talk about the case, saying in a statement, "This office will pursue criminal charges where there is prosecutable criminal activity and competent evidence to prove it."

Family and friends in Hernandez's hometown of Rocksprings have rallied behind him, with stickers, shirts, signs, pins and hats saying "Free Gilmer." Residents have written letters praising Hernandez and his law enforcement, and the case has been profiled on America's Most Wanted.

And now an online petition is under way, seeking a presidential pardon for Hernandez. "This entire matter has been a travesty of justice and complete waste of taxpayer's money," the petition says.

"Citizens of his town are mad," Poe said in a statement delivered on the House floor and currently posted on his congressional Web site. "One said, 'Our deputy's in jail for doing his job.'"

Poe called it "another example of how the federal government is more concerned about people illegally invading America than it is about the man who protects America. Once again, our government is on the wrong side of the border war."

As for Hernandez, Chavez said so many people are standing behind her brother because they know the type of person he is.

"They know and have seen Gilmer grow up to be a very respectful and [well-] behaved young man," Chavez said. "Everyone felt safe and protected when Deputy Gilmer Hernandez was on patrol because he cared for everyone.

"Now the illegals come into the U.S. [and] try to run my brother over while fleeing from a traffic stop, and he's behind bars," she said. "It's not right."

Sutton's assistant U.S. attorney who prosecuted the case, Bill Baumann, has said Hernandez was wrong to fire at the vehicle because it was headed away from him and wasn't a direct threat.

"The law says you cannot use deadly force to stop a car unless it poses an imminent threat to the officer or another person," Baumann has told reporters.

In the case of Agent David Sipe, who just got his conviction overturned, the judge gives some insight into just how wrong these prosecutions by Sutton et. al have been.

http://www.romingerlegal.com/fifthcircuit/opinions/03-40657-CR0.wpd.html

The Judge noted before granting the motion that he had never before in his twenty years on the bench ordered a new trial. Yet he sat through the trial, learned of the government's repeated nondisclosures and misrepresentations, and was troubled. While many of these nondisclosures do not satisfy Brady's rigid materiality standard, they nonetheless convinced the district court that Sipe did not receive a fair trial. That said, we need not and therefore do not decide if his decision could properly rest solely on the district court's exercise of discretion under Rule 33. AFFIRMED AND REMANDED FOR TRIAL. 47

Sipe moved for the production of the government's entire investigative file. After reviewing the material produced, Sipe identified four additional pieces of exculpatory or impeachment information that the government had failed to provide. First, Sipe discovered that the government had taken several photographs of the arrest scene. Guevara himself is in the photographs, apparently posing to demonstrate where he was located in the reeds when Sipe struck him.

Second, Sipe learned that Alexander Murillo, one of the government's witnesses, had a criminal history. Specifically, Murillo had been charged in the past with filing a false police report, theft, and harassment, although there had been no convictions. Third, Sipe learned that the government interviewed one Herica Rodriguez before trial. Rodriguez, one of Sipe's fellow EMT students, told government investigators that Sipe was a "nice person" and that she did not hear him make any statements suggesting that he disliked or disrespected aliens.

Finally, despite the government's written assurance to the defense that the only benefit given to the testifying aliens was permission to remain and work in the United States pending trial, Sipe learned that the aliens received numerous other benefits from the prosecutors. For example, they were given Social Security cards, paid witness and travel fees, allowed to travel to and from Mexico to visit family, permitted to travel to North Carolina to work, and allowed to use government phones to contact relatives in Mexico.

The failure of the government to divulge this information cast two other prosecutorial nondisclosures in a new light. First, Sipe discovered that the two aliens in the brush with Guevara, Sanchez and Diaz, who testified at trial, had been living with Guevara and his wife during the months before trial. They had testified at trial that they did not know Guevara before the fateful crossing, supporting the government's portrayal of Guevara as a poor illiterate with only one hand who was crossing in search of work, meeting up with them only by happenstance. This evidence countered defense suggestions that Guevara was not a migrant worker but a "coyote," an oftentimes dangerous transporter of illegal aliens who was engaged in leading Sanchez, Diaz, and others across the border.

Relatedly, the government failed to disclose that before trial, Guevara was intercepted by Border Patrol agents in the company of illegal aliens and that the arresting agents released Guevara when he displayed a card given to him by prosecutors. Since Guevara had been granted free passage in his deal with the government, his arrest with illegal aliens was evidence that he was a transporter, as well as evidence of the extent of the government's support accorded him in order to obtain his testimony. As the defense termed it, Guevara was given a "get out of jail card."

Indeed, the court asked at trial, "How could you -- how could people have really seen what was going on here . . . ?" These discrepancies stood in stark contract to the unchallenged fact that Sipe had made hundreds of arrests as a border patrol agent without complaint and 10 the complete absence of evidence that Sipe had previously used excessive force.

In granting Sipe's motion for a new trial, the district court was careful to note that it also did so "in the interest of justice." Under Rule 33(a), a district court "may . .

In granting Sipe's motion, the district court focused primarily on the Brady violations committed by the government. But, as the court's oral ruling on the matter reveals, there was far more in the mix than just the five items of evidence discussed above. Indeed, throughout the proceedings, the government's disclosures were inadequate. In many cases, the court discovered 57 FED. R. CRIM. P. 33(a). 58 United States v. Robertson, 110 F.3d 1113, 1120 n.11 (5th Cir. 1997) 46 that the government had failed to reveal important information, but Sipe was no doubt prejudiced by the delay and hindered in his preparation for trial.

R. ALEXANDER ACOSTA - the US ATTY who prosecuted Sipe.

Hispanic Business - R. Alexander Acosta, influential Hispanic for 2004

Mr. Acosta is the first Hispanic to serve as assistant attorney general. Before joining the Justice Department, he served as a member of the National Labor Relations Board, the principal federal agency for regulating labor unions. He is the 2003 recipient of the Mexican-American Legal Defense & Education Fund's Excellence in Government Service Award and the D.C. Hispanic Bar Association's Hugh A. Johnson Jr. Memorial Award.

http://www.google.com/search?hl=en&client=firefox-a&channel=s&rls=org.mozilla%3Aen-US%3Aofficial&hs=Pk0&q=R.+ALEXANDER+ACOSTA+&btnG=Search

Prior to his appointment as United States Attorney, Mr. Acosta was nominated by President Bush and confirmed by the Senate to serve as Assistant Attorney General for the Civil Rights Division of the United States Department of Justice. Mr. Acosta was the first Hispanic to serve as an Assistant Attorney General at the Department of Justice. The Civil Rights Division is responsible for enforcing federal civil rights statutes, including those statutes that prohibit discrimination on the basis of race, sex, handicap, religion, and national origin in education, employment, credit, housing, public accommodations and facilities, voting, and certain federally funded and conducted programs. Mr. Acosta had also served as Principal Deputy Assistant Attorney General in the Civil Rights Division.

Prior to his service as Assistant Attorney General, Mr. Acosta was nominated by President Bush and confirmed by the Senate to serve as a member of the National Labor Relations Board ("NLRB"), an independent federal agency responsible for administering and interpreting the National Labor Relations Act, the principal national statute regulating private-sector labor relations.

He then worked at the Washington, D.C. office of the law firm Kirkland and Ellis, where he specialized in employment and labor issues. Mr. Acosta has also taught several classes on employment law, disability-based discrimination law, and civil rights law at the George Mason School of Law.

http://www.usdoj.gov/usao/fls/USAttorney.html

PR calls for Alexander Acosta- Interim Attorney for Southern FL to step down : gave DOJ funding to terror supporting Musim group

July 4, 2005

OFFICIAL FROM JUSTICE DEPT. INITIATED GRANT TO TERROR SUPPORTING GROUP

AAH SAYS ACOSTA HAS "NO CHOICE" BUT TO RESIGN

(Coral Springs, FL) On February 7, 2005, the Department of Justice (DOJ) announced the availability of funds in the form of outreach grants for "public education efforts regarding immigration-related employment discrimination." One of the grants was given to the American-Arab Anti-Discrimination Committee (ADC), a group with a long history of support for overseas Islamic terrorist organizations that receives millions of dollars from Wahhabists in Saudi Arabia.

Yesterday, Chairman of Americans Against Hate (AAH), Joe Kaufman, contacted the Justice Department to infer about how the grant got into the hands of ADC. Kaufman spoke with Acting Public Affairs Specialist to the DOJ's Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC), Lilia Irizarry, who stated that the grant was initiated by none other than DOJ official Rene Alexander Acosta.

Acosta had just been presented with ADC's 2005 'Friend in Government' Award in May, just one month prior to ADC announcing on its website that it had received the grant.[snip]
http://www.militantislammonitor.org/article/id/739

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