Ramos/Compean...A Bad Shoot

FR | 2-21-07 | Bob J

[Bob J]

I'm tired of talking to you. You haven't read the transcripts, you don't know what you are talking about, you just post little tidbits of testimony that others have sent or pointed you to, you then guess the meaning of the first electrons to make the jump over the unusually large synapse' in your brain and type it into your keyboard.

It's just a waste of time responding.

[AndrewC]

I'm tired of talking to you. You haven't read the transcripts,

Bob, you've made it abundantly clear that you are the one that hasn't read the transcripts. I've quoted exact testimony which you continue to ignore and twist. The perfect example is that Ramos never said that Compean was lying down. You continue to insist that he did. His lawyer objected during Kanof's closing statement, because Kanof misstated the testimony as you continue to do. It is a waste of time to address you, but others can read for themselves and see the analysis of the testimony which clearly demonstrates to me that Ramos and Compean should have been judged "NOT GUILTY" on all counts.

Let me give you another little hint, in the final report submitted in Nov 2006, Vasquez did not mention Compean showing him any casings, but Vasquez did mention 5 casings. Another hint this same report, it is an official document, establishes the date that Rene Sanchez was notified by his relation about the shooting as 3 Mar(pg 4), not 28 Feb as he testified. Further on page 12 of that report, C. Sanchez states that Ramos testified that Compean slipped into the ditch. Ramos did no such thing. He testified that when Davila looked back at him then turned to circumvent Compean; he, Ramos, holstered his pistol and jumped into the ditch to go to Compean's aid. He lost sight of both of them in order to navigate the ditch because it was steep and required the use of his hands. I read things, evidently you don't.

[AndrewC]

Lordy, Lordy

In the final report I mentioned above, the attachment containing the affidavit in support of complaint, the criminal complaint used to arrest Ramos and Compean, the following is stated:

"5. According to a confidential informant, Agent Jose Alonso Compean told him that he (Compean) had shot up to 12 rounds, but had only been able to locate a portion of the casings. Border Patrol Agent(s) subsequently responded to the scene of the shooting and found five more bullet casings."

That is evidence from an official document produced the day, 18 Mar 2005, of the interview of the confidential informant who also happened to be the BPA who "found" five more bullet casings, which supports the testimony that Compean did not fire from the second magazine. Plus, it re-emphasizes that 9 casings were not shown to the "confidential informant".

[erton1]

I have review the entire transcript,done some research on how the 5th circuit looks at different areas of law that I think will be part of the appeal. You argue about the testimony, contradictions and whether there was guilt proved beyond a reasonable doubt. The reality is that the jury found the agents guilty, and I will bet dollars to donuts that the 5th circuit will be find that there is sufficient evidence to affirm that point of error. My reading shows that there was at least a scintilla of evidence was admitted to support every element of the charges that the defendants were convicted of.

I would anticipate that there will be portions of the appeal that will address evidentiary rulings by the judge, but I don't think any of the rulings will be reversible error (maybe some harmless error) except possible the issue of the admissibility of the testimony of the 2nd incident. I think the 5th's decision on this point will turn on their interpretation of the federal rules of evidence, particularly rule 608. The first question to be answered is whether this teatimony goes to to the witness' character for truthfulness. The appellate courts have held that this normally acts such as fraud, theft, perjury, embezzlement and the like. I can't find a case out the 5th that holds that drug possession is in this category, although the amount marijuana in this case may be persuasive to the court. Even if the 5th finds that the act comes within the purview of rule 608, then it will perform a harm analysis to determine if the jury would have reached a different verdict if it had been allowed to hear the testimony. This is a subjective test, and is difficult to predict how the court will fall on this. The testimony would show the witness is unrepentant and a bad guy, but the the jury also was aware of the 1st load of marijuana. Additionally, the testimony is based on double hearsay (since OAD was not caught with the drugs) and the defense was not able to get their bill of review admitted because OAD took the 5th during the proffer.Maybe the totality will persuade the 5th to reverse on this point, but I tend to doubt

Some other posters have brought up the indictment and court's charge to the jury as being defective. They have not given any specifics, and I don't find anything wrong with either. I doubt there will even be a point of error regarding these instruments.

There has also been discussion regarding 2-3 jurors changing their vote after feeling pressured. This could probably be said in any jury case and is not unusual. It is too bad that the weak, outnumbered jurors were on the side of the defendants. Since the allegations do not involve instructions given by the judge to the jury and the statements are rather weak, I don't see the 5th on this ground.

The other area that I anticipate the agents will appeal is the applicability of the mandatory minimum sentencing laws for the use of a firearm requiring the minimum sentence of 10 years. Their is no exclusion for LEOs under the statute passed by congress.Without the exclusion the plain language allows it to be applied in this situation. Since the 5th has a history of strictly interpreting statutory language and is not an activist court like the 9th, I am somewhat interested in it's ruling on this point.


From reading the above, you can figure out that I would not be too hopeful for the appeal. It is nearly impossible to predict, but I would give the odds at 10-20%, depending who is on the 3 judge panel. There will probably be at least 2 from Texas as I understand how the 5th operates. If Benevides or Prado are on the panel, I would lower the odds, based on my personal knowledge and experience. I think Garza would be the better for the defendants. Those are the 3 that I know the most about, since both both Prado and Garza were judges in S.A. and Benevides was in the valley in the southern district and and I had cases in his court.

On another note, has anyone thought about asking for a commutation of the sentence at some time after the appellate process is over rather than a pardon? It appears to me that at that time it is primarily a political decision. The administration has put themselves in a box, and need some face saving way out of the box. A commutation, rather than a pardon, may very well be a solution that all sides can live with. This could probably occur at the end of Bush's term, since I don't think the appellate process, if it goes to SCOTUS, will be over until sometime next year.

[Bob J]

I reference actual trial testimony and you come back with a preliminary report compiled a year before the actual trial at a time when I think everyone would agree agents were less than forthcoming with their facts. If that is what you want to hang your hat on, be my guest.

I'm not going to go back and find/compile/copy/post the testimony from Vasquez...I simply find spending that kind of time on trying to convince you not a good use of my time because you are on ajihad, not a quest for the truth.

Suffice it to say, Vasquez testified Compean counted the 9 spent shells in his presence, admitted to changing magazines and firing again, and asking Vasquez to find the missing casings. Vasquez found 5 and tossed them in the ditch.

Compeans .40 holds 11 in the mag and one in the nose. Based on this testimony it is evident Compean reloaded and fired again. If you want to call Vasquez a liar, go ahead. But every time someone presents you with evidence that doesn't meet your view, you call them a liar. It gets tiring and makes you look like an apostate.

If you're not interested in a search for the truth, then I have no time for you.

[Bob J]

Thanks for the reasoned analysis you have provided in this engagement.

[erton1]

You are welcome. I'm just trying to take an objective view at the situation.

[AndrewC]

On another note, has anyone thought about asking for a commutation of the sentence at some time after the appellate process is over rather than a pardon?

That is fine and dandy if we are playing a lawyer's game and interested in winning. The premise of this thread was to look at the testimony of the trial and come up with a conclusion. I have. Ramos and Compean were telling the truth. Innocent men have been sentenced as guilty by a jury that did not properly analyze the evidence placed before them. That was partly due to the Defense team not connecting the dots for the jury.

Prior to slogging through the testimony, I , like others it seems, relied on the general statements "heard" on the media, and the general feeling of the situation as it was gleaned from these statements. My first encounter with "documentation" of this event was the Johnny Sutton statement covering his butt. I later read the counter to that from the Border Patrol Union. No actual data yet. I then read parts of the final report from DHS which was practically useless due to all of the redactions. It made no sense so I did not progress beyond the statements describing the involvement of all of the agents. No names other than Ramos and Compean were given and since the rest of who, what, and where was pretty much missing the report was useless. I then saw links to the testimony and started looking at them in sequence. I quickly learned that it was not very interesting in that sequence. I finally hit this thread and took up the challenge. I found where the testimony began and started there. This was the prosecutions side of the story. In this manner, I started the analysis of the event as described by the testimony. Because of this approach I had the viewpoint of Davila first as it was contradicted and supported by the other prosecutions witnesses.

I, of course, had a prejudice to overcome, since I felt that Ramos and Compean were innocent from the statements I had heard on the media. But I approached the testimony with an unbiased eye, as much as I could, in order to mentally construct the events.

I read the opening statements and then went into the testimony. Rene Sanchez was the first testimony I read. I immediately sensed something was wrong, but I knew after reading it that it was really not germane as to what happened, but rather had something to do with why the event was brought out. I also felt that R. Sanchez was hiding something. I next read Chris Sanchez testimony, but I don't remember anything jumping out at me except for the time the first call went out. I finally got a picture of the event with the testimony of Davila. I immediately saw that he was somewhat inconsistent especially in the area of his encounter with Compean. I also saw his evasiveness when testifying about the things which his immunity agreement covered. I didn't know that as I read the testimony, I just knew that his answers were incredible. He didn't know this and didn't know that. He was given a cell phone, which had no purpose, etc. But he did give a general picture of the event. It became pretty sparse after the clearing of the levee and did not provide any clear picture as to what Ramos and Compean were doing until Davila turned to see them holster their weapons give a half turn(that is important) and start back to the levee. His testimony did establish his position on the vega when the shooting began. His description of his actions did not make sense there.

C. Sanchez makes a cameo appearance followed by Benavides. His testimony establishes the 17 minute period for the encounter buried within his description of the radio traffic.

The next testimony I read was Juarez. It gave a clearer picture of the events up to the shooting. His testimony and measurements from the testimony(the first ones I used were wrong, they implied that Juarez could not have seen Compean shoot but later numbers indicated that he saw too little to place Compean on top of the levee, he would have had to have been a yard or more down the south side of the levee) temporarily established the prosecutions position of Compean when the shooting began. His testimony of the ditch encounter of Compean and Davila supported the position of Davila as one step away from Compean when he "raised" his hands. His testimony also indicated his lack of candor. It indicated his lack of concern for a fellow agent. And it indicated his focus. Finally, it muddied up the picture at the light in Fabens.

Inserted in the testimony of Juarez was that of Dr. Miller. It establishes at least in general terms the horizontal path of the bullet that struck Davila. It involved the right symphysis pubis, the right thigh, and the left buttock. The two important points would be the symphysis and the buttock since hitting the symphysis might have changed the path. The direction would have been from left to right. It also makes me believe that the vertical path of the bullet was nearly horizontal and maybe even slightly upward from back to front.

The next testimony I read was that of Vasquez. I'm going to take a break now, but I will note that Vasquez's testimony makes it hard to believe that Juarez saw Compean shoot. Vasquez would have had a clearer view of Compean than Juarez due to the angles involved and he did not see Compean.

[AndrewC]

I reference actual trial testimony

So do I. Compean contradicts Vasquez. How do you break the tie? You look at other sources and testimony. First of all if Juarez is telling the truth, all of the casings would be in the same place. That would mean that Compean would be picking up casings from the top of the levee in full view of all, repeat, all of the agents. No one saw Compean picking up any casings. Conclusion? Vasquez is lying. More confirmation? The official report of the investigating agent gives a synopsis of Vasquez statement. He does not mention anything about Compean showing him casings. Conclusion? Vasquez is lying. P.S. The final report is dated 11/20/06, less than 4 months ago. The compilation(in your viewpoint) also makes reference to the trial's outcome. You don't read anything do you?

[erton1]

I brought out commutating the agents sentence, not because I want one side or the other to "win," because frankly don't think anyone is going to come out of this a "winner." At this time we need to look at what is best for the agents, their families and all involved. I think everyone agrees that it would probably be best if they were released after 2-3 years in prison at the most. Since the 5th denied their motion to be released while their appeals are pending, they are going to be in prison for a while no matter what happens. Even though I don't consider myself a fervent "border guard supporter" in this case, I think it it would be wise for their supporters to look at all options, with idea of what would be in the the agents best interest. I believe that the agents will agree that getting out of prison foremost in their mind, as soon as possible. I don't think they want to spend to whole term just because they want to be hard headed.

Regarding the rest of Andrew C's post, every trial has contradicting testimony between witnesses,and often times the dots don't get connected. That is why we have jurors. They hear the testimony and the evidence, see the demeanor of the witnesses, weigh their credibility, and render their verdict. They obviously came to a different verdict than the one you would have reached in this case. That is the truth in this case, unless it is overturned on appeal. That is a part of the American legal system, and I believed it is the best way in the world to determine the truth. Both sides have the opportunity to present their case to the jury, and that is what happened here. The testimony from the trial you cite was presented to the jury and considered by the jury. Could either side done a more coherent job, probably. But during a trial, a lot of decisions must be made and some turn out good and some not. A judges rulings may break your case or disrupt it to the extent that things don't flow as anticipated.

In this case, the defendants testified, and did not sell the jury that their actions were legally justified. That is what this case is all about. Did the jury believe the agents actions were justified in the fact situation. When the defense could not get the jury to agree with their theory that it was justified. they lost. They rather minute detail you wish to argue really didn't amount to a hill of beans in the jurors minds once they decided that there was no legal justification of the agents actions.

[Bob J]

I would like to think your reasoned posts might do some good, but I can't help thinking "pearls before swine". And I'm not calling you a swine Andrew, it's just a phrase.

[AndrewC]

They rather minute detail you wish to argue really didn't amount to a hill of beans in the jurors minds once they decided that there was no legal justification of the agents actions.

Again, the proposition is to read the testimony and come up with a conclusion. It is was not to find out what the best option now is for the defense. I am doing that. I presented the minute detail, even though I do not have access to the important part of the testimony, the pictures. I have not even gotten to the defendant's testimony and you are harping on the detail I have used to analyze the witnesses testimony. The minute detail that did not amount to a hill of beans in the jurors minds is what decides the truth. I'm saying that they failed their task and I have not even gotten to the defense.

[AndrewC]

And I'm not calling you a swine Andrew, it's just a phrase

I consider the source and find that you are practicing projection.

[AndrewC]

In this case, the defendants testified, and did not sell the jury that their actions were legally justified.

It is not the job of the defense to sell anything. That is the province of the prosecution.

[erton1]

In every trial, even though the prosecution has the burden of proof, the defense had better have a defensive theory for the case. This may be any thing from an alibi (I didn't do it), to I was legally justified in my actions (ie: self defense), to creating a reasonable doubt in the juror's minds (think OJ). The only way the defendant wins without presenting a defensive theory to the jury is if the prosecutor screws up during his case in chief and fails to prove up the elements of the case.I've only seen this once in 27 years and never by an AUSA. Here it is obvious that the AUSA proved her case and if the case went to jury at that point of the trial, I have little doubt the jury would find them guilty.

In this particular case, the defensive theory appears to the legal justification of their actions. They even conceded that Ramos shot OAD when they agreed to the trial stipulation of evidence. I don't think they even came close to creating a reasonable doubt in their cross exam of the prosecution witnesses and did not appear to try to on their direct. The defendants testified, and they did not make good witnesses. They frankly came off as somewhat unbelievable, especially after the cross by the AUSA. She was prepared for them and I cut them up into little pieces. I have discovered that if you put the defendant on the stand he better sell the defense to jury. They are looking see if they believe his testimony, and if they don't the odds of you prevailing at trial have diminished to close to zero. When a defendant testifies, his testimony probably becomes the most important in the trial. He better sell and close the deal.

This is trial 101. I don't know where you get the idea that the defense doesn't have sell anything to the jury, that is just ridiculous. It starts from the opening argument to the jury, continues through the testimony and evidence, and ends in the closing argument. All you propose is a recipe for your client to be found guilty guilty by the jury.

[erton1]

Sorry, forgot to ping y'sll, since you were part of the conversation. please see post 615

[investigateworld]

In my experience, defendants rarely testified. If memory serves me correctly, maybe twenty percent did, if that.

I hate to second guess the Defense lawyers, but Kanof hit them like a buzz saw.

She pulled a dirty trick with her efforts to have defense jump the hoops to have OAD brought in as a defendants witness. That reveals a lot about her.

Again, in my opinion only, it showed her as an advocate of a position, rather than a searcher for the truth. As a deputy US Attorney her client is the people of the United States and their Constitution. That tainted every thing.

Again, I think a first class attorney like Gary Spence would have walked these guys.

[AndrewC]

This is trial 101. I don't know where you get the idea that the defense doesn't have sell anything to the jury, that is just ridiculous. It starts from the opening argument to the jury, continues through the testimony and evidence, and ends in the closing argument. All you propose is a recipe for your client to be found guilty guilty by the jury.

I sat on a jury where the prosecution presented their theory. The defense had to prove nothing and the defendant did not testify. The defendant was not guilty. When we started to vote it was 11 to 1 for acquittal. It did not take long for us to reach the 12 and go home. I repeat the defense had to prove nothing and the prosecution provided their theory with the evidence.

In any case, I keep telling you the purpose of this thread was to analyze the testimony. I am doing that and I am demonstrating that the prosecution's "theory" is shaky at best. I have not even got to the defense's testimony which blows the prosecution out of the water. The defense did testify and I have not presented it yet. I am just showing you how the prosecutions witnesses are contradictory and fail to justify the attention the prosecution is placing on it. When push comes to shove the final analysis is what happened between Davila and Ramos. It does not matter whether Ramos or Juarez broke traffic laws or not. Because if the situation were that the chase occurred exactly as described and Ramos shot and killed Davila and they found a gun belonging to Davila purchased in Mexico on Davila, the shooting would be unquestionably justifiable.

. She was prepared for them and I cut them up into little pieces.

Is that a freudian slip? Or is it something else? Anyway, she was brutal, but she did not cut up anything. She lied or twisted testimony and was caught at times by the defense and sometimes the defense missed the lie. That is not cutting up anything except the truth.

[Kenny Bunk]

Thank you, erton, for your lucid analysis throughout these threads. Your local knowledge and experience would have made a worthwhile addition to the defense. Compared to the Feds, they were babes in the woods. I hope (another far-fetched hope!) that "incompetent counsel," comes up somewhere.

I also think there has been a tendency, certainly shown by me, among others, to let sympathy for the defendants sway the argument. These two chumps went to court convinced that their "innocence," had something to do with their trial in a Federal Court. Sure they needed sympathy, which they would have gotten from you, but they needed a good lawyer to slap some sense into them, and organize a lucid defense, which they did not get.

All too often, all the Feds need do is get whomever is in the crosshairs into court. The presumption of innocence is, for all practical purposes, shot to hell. The jury pool is also not what one would draw in, let's say rural Connnecticut. By now, the Border Region is heavily Mexican. Some Texas Counties have to be 70% Mexican. Some of these people in the jury pool may have been illegal aliens at one time themselves. Many of them have relatives... even parents ... who entered the country illegally and are still here illegally. When confronted with the might and majesty of the Federal Government in the guise of the USA Office, they are going to do whatever they are told. Especially when they see criminal witnesses being protected ... pampered and given privileges including financial incentives, by that same government. Why? Fear of federal retaliation by the MIGRA which is a dirty branch of government along the border, with fearsome power against people: power that is used to terrify them into whatever submission is required by selective enforcement.

Also, do not view this case in a vacuum. This is merely the latest in a series of cases against Border Patrol Agents which share certain common elements:
(1) Formal pressure from the Mexican Government
(2) Immunity to witnesses who were involved in criminal acts. Some key witnesses are known for consistent criminal behaviors. (Drugs. People Smuggling, etc.)
(3) The giving of, (besides blanket immunity) unusal benefits, including money, to these witnesses.
(4)Veniremen who may well have some reason to expect negative consequences for selecting acquittal of the defendants in a Federal Court.
(5) The expenditure of vast Federal resources in the pursuit of convictions against BPAs who can neither afford adequate counsel, or especially adequate pre-trial investigation

This is an extremely disturbing trend, to say the least. If Ramos and Compeán accomplish anything, it will have been to shed SOME light into a very dirty corner of the corrupt Mexican Border, which is an absolute danger to US security.

[Kenny Bunk]

PING