What really happened in border shooting?
By PAULINE ARRILLAGA, AP National Writer
FABENS, Texas - The prairie where it all happened is quiet now, but for the occasional Border Patrol vehicle passing by. A sign rests near a muddy ditch, "Stop Illegal Immigration," left behind by protesters who have visited in homage to two ex-agents, imprisoned for shooting a drug smuggler in the backside as he sprinted toward Mexico.
Former U.S. Border Patrol Agent David Ham points toward the location at Fabens,
Texas, on Monday, Feb. 5, 2007, where former Border Patrol Agents Ignacio Ramos
and Jose Alonso Compean shot drug smuggler Osvaldo Davila last year. The agents
began serving prison sentences in January after their convictions in the incident.
(AP Photo/Mark Lambie)
It seems almost unimaginable that one moment in this lonely place ignited the furor that rages still — from the blogosphere to Congress — two years later.
A jury convicted the agents of assault, obstruction of justice and civil rights violations. A federal judge meted out punishment: 12 years for Jose Alonso Compean; 11 for Ignacio "Nacho" Ramos. As the two men surrendered last month, demonstrators took to the streets, clutching U.S. flags and shrieking: "What kind of America do we have?"
There have been claims of betrayal, hateful phone calls to prosecutors, warnings to President Bush from some fellow Republicans in Congress about taking sides with "the American people or ... our enemies" — even threats of impeachment.
Online petitions have demanded an independent probe and a pardon.
"Commended illegal immigration heroes," one Web site christened the convicted officers, whose supporters are disgusted that the so-called victim — "a doper" — went free, while the agents sit behind bars for "doing their job."
But what happened that February day in 2005 — and what's happened since — isn't as black and white as the us vs. them spin on the airwaves and the Internet, where facts are fleeting in the ever emotional debate over the nation's borders.
Consider one fact missing from the cyberspace chatter: In the El Paso Border Patrol sector, where Compean and Ramos were assigned, agents have fired their weapons 14 times in the line of duty since 2001 — including four fatal shootings. In one incident, a 19-year-old Mexican immigrant was shot to death by agents after he brandished a metal pipe.
Each of those shootings, except one, was ruled a justifiable use of force, according to the U.S. Attorney's Office in San Antonio — a "good shoot," in Border Patrol parlance.
The exception was the Compean-Ramos case. What set it apart, a federal prosecutor told jurors at their trial: "They knew it was a bad shoot."
This case is different not simply because of the debate it inflamed but, as an Associated Press review of court documents, transcripts and exhibits shows, because of what transpired in a few life-changing moments out on that lonely prairie.
___
"Did you guys copy? There's a blue van leaving at 76. Going pretty quick."
It was 1:11 p.m. on Feb. 17, 2005, 30 miles east of El Paso in a hamlet of cotton fields and pecan orchards called Fabens.
Agent Compean, a Border Patrol officer for five years, was on the radio calling in some tripped sensors at a spot known as area 76. He alerted his fellow officers that he suspected some sort of drug transaction was under way, and the agents of the Fabens Border Patrol station quickly responded.
Oscar Juarez, a newer officer who'd spent six weeks as Compean's field trainee, was in his vehicle not far from the Rio Grande — "pushing back" a group of 10 or more illegal immigrants, he would testify at trial. Pushing back means exhibiting a high-profile presence to ensure would-be crossers stay in Mexico rather than attempting to cross the river.
Nacho Ramos, a senior agent with 10 years under his belt, was having lunch at the station when he heard the radio call.
They, and five other agents, responded to Compean's alert. Holding the line against illegal immigrants might be their primary job description, agents would testify, but taking down a drug load is an event every officer wants credit for.
Juarez picked up the van first, following it north into Fabens. He hit his overhead lights, but instead of pulling over, the van sped up and headed back south toward the border. Ramos joined in the pursuit.
"It's close. We got this baby," Juarez radioed at 1:19 p.m. It was his first car chase. "I was excited," he testified.
The road turned to dirt and came to a dead-end at a steep sewage ditch the agents call the Sierra Delta. It runs east to west, and was measured by investigators as 11-feet deep and 43-feet wide, too big to jump. It's filled, at least ankle-high, with putrid, murky water. Beyond the ditch, facing south, is a slight incline, then a levee road that parallels the ditch and an open vega, or prairie, about half a football field in length. Beyond the vega is the Rio Grande, then Mexico.
The van came to a stop at the edge of the ditch. Ramos pulled up behind it, followed by Juarez. Compean, having tracked the pursuit on the radio, stuck to the south side of the ditch and parked his truck on the levee road.
The van driver, Osvaldo Aldrete Davila, got out and ran for the canal, Mexico in his sights.
"Parate! Parate!" Compean shouted, Spanish for "stop."
Compean pointed his shotgun at Aldrete. The driver raised his hands; they were empty, Compean, Juarez and Aldrete would all agree in statements to investigators and in court testimony.
At least two men — Aldrete and Compean — reported hearing one of the other agents say, "Hit him."
"No me pegues," Aldrete beseeched. "Don't hit me."
Compean swung the butt of his weapon at Aldrete, Juarez testified, but Compean lost his balance and fell into the ditch, dropping his shotgun. (Compean insisted he wasn't trying to hit the driver, only push him back.)
Aldrete took off out of the ditch, over the levee and across the vega, headed for Mexico.
The stories diverge from there.
Juarez testified that he was walking to the van to inspect its contents when he heard shooting, turned and saw Compean firing his Beretta handgun. He said he saw Compean reload, fire a few more shots and then dash into the vega.
Contradicting Juarez's account, Compean insisted he recovered from his fall, chased after Aldrete and tackled him. Aldrete, he said, threw dirt in his face and took off running again. Compean said he started shooting because he thought he saw something in the suspect's hand.
"He was pointing something at me ... it looked like a gun to me," he testified. "It was something black, shiny, in his hand."
Ramos testified that he heard gunfire, ran into the vega and saw Compean on the ground.
"I thought he had been shot, that he had been injured," he told jurors. Ramos testified that he never stopped or asked Compean if he'd been hit, however, and instead ran past his fellow agent and fired one final shot at Aldrete because, "I believed I saw a gun."
Testimony revealed that Compean fired about 14 times, and Ramos once. Compean and Ramos holstered their weapons and walked back toward the drainage ditch. Some 743 pounds of marijuana were discovered inside the van.
Aldrete testified that he never had any gun or anything "shiny" in his hands, and that he ran from Compean because the agent had tried to hit him and "I got scared." More striking were the agents' own conflicting stories and actions — and the statements of other Border Patrol officers who testified against them, including the five agents and two supervisors who showed up on the scene.
Among the discrepancies:
• In a handwritten statement to investigators, Compean said Ramos was "standing next to me" when Ramos took the final shot. At trial, Ramos testified that Compean was on the ground when he ran past him and fired. Compean testified that he was on one knee and getting to his feet when Ramos ran by him and fired, but he said he didn't see Ramos shoot.
• In his handwritten statement, Compean said he and Ramos saw Aldrete climbing out of the Rio Grande into Mexico and he "looked like he was limping." In that statement Compean acknowledged, "I think Nacho might have hit him." At trial, when asked if he'd "ever" thought Aldrete had been hit, Compean said no. Ramos testified, "I didn't see him limping."
• Testimony revealed that Compean told some fellow agents that he and Aldrete had scuffled and that Aldrete threw dirt in his face; he told others he had slipped, and that's how he got dirt in his face.
Neither Ramos nor Compean reported the shooting, even after one of the supervisors on scene asked Compean if he'd been assaulted. Border Patrol policy requires that all weapon discharges — accidental or otherwise — be reported verbally to a supervisor within an hour.
Once an agent-involved shooting is reported, a sector evidence team is dispatched to take measurements and pictures, and investigate what happened to allow supervisors to determine whether the shooting was justified. The FBI is called. The fired weapon is held for examination.
None of this occurred that day.
Instead, Compean admitted that he picked up his spent bullet casings, which would usually be preserved for the evidence team, and tossed them into the drainage ditch.
The two agents had attended quarterly firearms training the day before the incident. Ramos was also a member of the sector evidence response team and a former firearms instructor.
In his drug seizure report, Compean also failed to mention the gunfire or that Aldrete had a weapon. The report said only: "The driver was able to abscond back to Mexico."
Compean did tell at least two other agents that he fired at the driver. One was Art Vasquez, who testified that Compean asked him to look for additional shell casings. Vasquez testified that he found five and tossed them into the murky ditch, then called Compean to tell him he'd thrown them away.
"So you destroyed the scene for someone that you worked with?" prosecutor Debra Kanof asked him at trial.
"Yes, ma'am."
Vasquez, the two supervisors and other agents on scene all testified that neither Compean nor Ramos ever told them that the suspect pulled a gun or had something that looked like a gun. If Aldrete had been armed, the others testified, Compean and Ramos should have called out a warning.
"I would have made an attempt to make sure as many people that were there on the scene and on the radio knew that there was a possibility of somebody in this area with a weapon," testified 16-year Border Patrol veteran Lorenzo Yrigoyen, who was standing exposed on the levee road as Aldrete headed into Mexico.
If Aldrete had actually been armed, one of the prosecutors asked him, "You were a sitting duck up there, weren't you?"
"Yes, sir," Yrigoyen testified.
Border Patrol brass in El Paso and investigators at the Department of Homeland Security's Office of Inspector General learned of the shooting two weeks later from an agent in Arizona. His mother-in-law had received a call from her childhood friend, Aldrete's mother, whose son was claiming he'd been shot by the Border Patrol.
Both mothers wondered: Could it be true?
___
Retired Border Patrol agent David Ham, a former assistant chief in El Paso, trekked out to the shooting scene not long ago. He wanted to see it for himself as the national outrage grew.
"They're picking the wrong guys to make heroes," he said.
After 31 years in the Border Patrol, Ham heads up the retired agents' association in El Paso. Months back, a Border Patrol official gave the group an overview of the case against Ramos and Compean; Ham and some other retired colleagues have since refused to appear at vigils or news conferences in defense of the men.
"If we believe in what we believe — which is honor first, that's our motto — how can these two guys say they lived up to that?" he said.
The public's almost mythological image of the border, which reduces the reality of the region to a stereotype framed by "insecurities and anxiety," partly explains support for the agents, said Howard Campbell, a cultural anthropologist at The University of Texas at El Paso.
"It's good vs. evil," he said. "They think this is just one emblematic case of the border being out of control and taken over by drug smugglers ... and the United States is being invaded. That's the imagery. ... That overrides the facts."
Ramos' lawyer said the case, instead, represents a contradiction between "the reality on the riverbank and the bureaucracy of regulations."
"They're out there in life-and-death situations, and then when something happens — just to hell with them? Let's pull out all the stops and go after them? That doesn't seem quite right," said attorney Mary Stillinger.
Stillinger hopes the case might prompt Congress to re-examine the statute for using a firearm during a violent crime, to establish an exception for law officers. A primary source of contention is the 10-year statutory sentence the agents received on that charge.
Appeals are planned, and Ramos' wife met recently with members of Congress who have asked for hearings. Calls for a presidential pardon have intensified following reports that Ramos was beaten in prison after inmates discovered he was a former agent.
Rancor about the prosecution hasn't abated.
One Web site recently asked: "Was There a Government Conspiracy to Frame Ramos & Compean?" The posting argued that ballistics reports failed to support prosecutors' claims that the bullet that hit Aldrete was fired from Ramos' gun. (In truth, defense attorneys — and Ramos himself — signed a document agreeing that the bullet came from Ramos' gun.)
Two jurors also signed affidavits on behalf of the defense, saying they did not think Ramos and Compean were guilty of some counts on which they were convicted.
Another juror, who asked to be identified only as Bob G., told the AP he stands by his decision at trial.
"They were clearly guilty," he said, adding that there was no evidence the drug smuggler was armed. "This thing, `They were just doing their job.' Well, what kind of job were they doing?"
It's true, that until that day, the agents had been productive employees, husbands and fathers, officers whom other agents were supposed to learn from, said Luis Barker, retired chief of the El Paso Border Patrol sector and the agents' former boss.
"Here is a moment, an incident, and it took all that away," Barker said.
It's also true that the smuggler, whose urethra was severed in the shooting, was given immunity for his actions on the day of the incident in exchange for his testimony. He has filed a $5 million claim with the Border Patrol.
Barker understands how some might see that as a cruel twist of fate.
"But the rule of law still applies," he said. "If this guy's running away and he's shot in the butt, then he's obviously not a threat. OK, `Well, I thought he had something in his hand.' Then why didn't you tell that supervisor?"
(Barker noted that Compean, in an administrative proceeding with Barker following his arrest, also never mentioned that Aldrete appeared to have a weapon or something shiny in his hand.)
"The long and short of it is, the system worked — as it should have," Barker said.
Jurors heard something similar just before they began deliberations.
"... We're not going to throw away the United States Constitution," lead prosecutor Kanof said in her closing argument. "We're not going to wad it up and put it in the trash can because Osvaldo was transporting marijuana that day. Because if we do that, then we have no expectation of living in a free society."
Trial transcripts: http://tinyurl.com/367akq
DHS investigative report: http://tinyurl.com/2nhdhx