Exclusive Guest Post For Polipundit: Free Compean And Ramos By Duncan Hunter

PoliPundit ^ | 3/5/07 | Duncan Hunter

[AndrewC]

I forgot to mention Mendoza's involvement. I had not analyzed how he fits in other than measuring the distance from his reported location to where Davila was when he was to enter the dirt road. I measured it to be a mile. I was not ready to add him in, but...

I figured he would be travelling the speed limit, 60 MPH, since he was out of the chase, and he would travel the safe speed, 30 MPH, over the dirt road. He would go 2 miles in 3 minutes or average 40 MPH.

Davila	Ramos	Juarez	Vasquez	Mendoza
0	60	120	220	5280
45	45	30	30	40
5280	5280	5280	5280	5280
66.00	66.00	44.00	44.00	58.67
80.00	80.91	122.73	125.00	180.00
0	0.91	42.73	45.00	100.00

[calcowgirl]

Juarez says he was only "six to eight cars behind" when they came to a stop

So much for the dust Fabens Dustbowl theory.

Juarez - Direct by Mr. Gonzalez 165-166
16 Q. And did you -- were you able to see when the van actually
17 arrived at the irrigation canal?
18 A. No, I did not.
19 Q. Where were you, sir?
20 A. I had to fall behind, because the road is not all paved.
21 Before you get to -- right after Wingo, it becomes dirt road.
22 Q. Okay. So you fell behind because of the dirt road?
23 A. Very unsafe to drive fast.
24 Q. And what about Agent Ramos, did he also fall behind from
25 what you could see?
1 A. No, he did not.
2 Q. How close did he remain to the van as far as you could see?
3 A. I would say pretty closely.
4 Q. Approximately, sir.
5 A. Less than a car length.
6 Q. Is that on the dirt road or on the paved road?
7 A. Almost all the way through.
8 Q. He didn't slow down once they were on the paved road -- I
9 mean on the dirt road?
10 A. I guess, if he slowed down, the driver had to slow down.
11 Q. As far as you could tell it was constant. Is that correct?
12 A. It was constant, yes.
13 Q. And when -- how far away were you when they came to a stop?
14 A. I was approximately six to eight cars behind.
15 Q. When they -- and then you take seconds to get there. Is
16 that correct?
17 A. Take seconds, yes.
18 Q. Where do you park?
19 A. I park to the left of their vehicles.

[calcowgirl]

Mr. Loya thinks that neither Juarez or Vasquez were at the scene when the ditch encounter occurred.

Well that is a curiosity. In various places, when Ramos is on the north side of the ditch, he testifies about agents "behind" him and "others" and "everybody." Who might he be referring to if it wasn't Juarez or Vasquez? Ramos and Juarez were both trying to corner OAD while in town-central. Where would Juarez have gone? Lunch break? (Yeah, I'm being a bit sarcastic, but Loya's theory doesn't add up for me--and wouldn't his theory be consistent with his own son-in-law?)

[calcowgirl]

Here are some more constraints to consider in using different MPH estimates:
(my opinion is that if Ramos could see, then Juarez could see--their distance behind the vehicle in front of them would not be much different).

From Ramos

1 Q. Uh-huh.
2 A. So -- I know they're there, so I had to slow down.
3 Q. Okay. And about how fast do you think you're driving down
4 here (indicating), once the dirt has -- I mean, I'm sorry --
5 once the road has turned to dirt?
6 A. Well, I know how fast I can go on that road, because I've
7 been down it many times. I know I'm not going any faster than
8 about 30 miles an hour, especially since I can't see because of
9 the dust cloud.

From Chris Sanchez:

2 Q. Did you perform any investigation which -- as to the speed
3 that van might have been traveling down that dirt road before
4 it hit the ditch?
5 A. Yes, sir.
6 Q. And tell me what you did.
7 A. I drove up and down -- again, my Government vehicle is a
8 Mercury Sable, so it's lighter than the van would be. And I
9 drove up and down Jess Harris and -- again, looking at the
10 dust. And several of the agents had stated that it was a lot
11 of dirt that day.
12 I think anything under 40 miles per hour -- again,
13 this is in the Mercury Sable. The dust was kicked up, but I
14 could see through my rearview mirror. Anything over 40 miles
15 per hour the dust was -- I couldn't see anything out of my
16 rearview mirror. So I assumed that they were definitely going
17 over 40 miles an hour, based on the other witness' statements.
18 Q. Okay. The van -- obviously, the van that's in the ditch in
19 the pictures right there, that Mr. Aldrete-Davila was driving,
20 was substantially heavier than that Mercury Sable. Agreed?
21 A. Yes, sir.

From OAD (but different dirt road--this is on his trip into town)

13 Q. Okay. And how fast were you driving away from the river,
14 where you picked up the van? How fast were you driving when
15 you were going towards Fabens?
16 A. Normal, speed limit, one could say.
17 Q. Okay. Well, on dirt roads there's probably not a speed
18 limit, correct?
19 A. No.
20 Q. So how fast were you driving on the dirt roads?
21 A. About 35; 40, at the most.

[calcowgirl]

I don't know about the picture... I posted a link and the only description they provided.

[calcowgirl]

I don't think you can add Mendoza in that manner. He is a mile back--on a PAVED road through farmland, most likely with a speed limit of 60MPH. Also, he says he was 1/2 mile away not a mile (it looks like 4000 to me on the outside, not 5280).

He should be behind the caravan 30-45 seconds... certainly no more than 1 minute (unless you assume that he travels the dirt road at a significantly slower speed than the caravan--but why would he?)

[erton1]

That testimony proves my point that there was no evidence that OAD had a weapon. Quoting the testimony:"Q:do you think he had a gun or do you know? A: I can't be sure." This is another example of why I think Ramos made a poor witness. His own attorney tosses him a softball question and he swings and misses. I don't understand why the question was even asked if the lawyer knew this was the answer, or Ramos just screwed up on the stand. Again if the defense is going to rely on this testimony, I understand why they did not prevail.

[erton1]

You obviously do not know what a crime is and what is not a crime. If you think LEO's can go around shooting people and just because it is their "viewpoint" that they are justified,and makes it not a crime, is delusional. These guys were convicted of the crime whether you agree or not. You obviously also think that LEOs can not be convicted of assault, and that is simply not true. The vast majority of the time an LEO discharges his service weapon, it is found to be a justified shooting. That does not change the definition of assault or any other crime. It is also clear that these stipulated to the commission of a criminal offense.

[erton1]

Yes, they can undertake a foot or vehicle pursuit. That is entirely permissible. For the defendants to be justified in the use of deadly force in this situation, They must have a reasonable belief that they are in a situation that presents an imminent threat of serious bodily injury or loss of life. This is statutory law contained in the federal penal code and all state penal codes.There is also voluminous case law interpreting the statutory law and definition. Recently there has been an effort to amend the legal justification laws in many states to allow homeowners to use deadly force in the protection of property when inside their homes. Currently the above standard applies even in your home in most states. This change has been called the "Castle doctrine" law.

[calcowgirl]

Yes, they can undertake a foot or vehicle pursuit. That is entirely permissible. For the defendants to be justified in the use of deadly force in this situation, They must have a reasonable belief that they are in a situation that presents an imminent threat of serious bodily injury or loss of life.

Then you really can't say "There was no threat once they are out of the ditch... " since it does not acknowledge the possibility that there was a threat that presented itself on the other side of the levee, correct?

I'm still interested in your answer to my other question:

Of course if they had just followed the law, and the regulations of the border patrol, they would not be in prison now.

What specific "law" are you referring to here?

[erton1]

The defendant is presumed innocent of the criminal charges alleged against him in the indictment. The govt. has the burden of proof to prove the charges are true beyond a reasonable doubt. In a typical criminal trial, this is the primary and only issue to be determined by the jury. Is the defendant guilty, beyond a reasonable doubt.

The law also allows the defendant interpose and plead affirmative defenses. Affirmative defenses are issues such as temporary insanity or justification for my actions, as in this case. The defendant has the burden of proof to prove the elements of the affirmative defense, again the standard is beyond a reasonable doubt. The essence of an affirmative defense is that you are saying you committed the action that constitutes a crime, but I am not guilty because of the affirmative defense. That is why the defense has the burden of proof. The use of an affirmative defense is dangerous because if the jury doesn't buy your defense, you are going to found guilty. In some cases, because of the facts, the defense has no choice but too try and prove the affirmative defense. This appears to be the situation in this case regarding the assault and firearm charges. The affirmative defense did not apply to the tampering charges, the defendants alleged and relied on their plea of not guilty and claimed they did not violate the law.

[erton1]

The law I am referring to is the statutory law regarding the affirmative defense of legal justification and the case law interpreting it. See my posts 749 & 751.

The case law on on how certain an individual must be of the threat is that it must be imminent and of a reasonable probability. It is possible that anyone or anything could be on the other side of the levee, That does not make it an imminent and reasonably probable threat to the defendants. Also the defendants have the burden to prove that the threat is imminent, and I don't believe they carried their burden on that either.

[calcowgirl]

Thank you--now I understand.

[calcowgirl]

The law I am referring to is the statutory law regarding the affirmative defense of legal justification and the case law interpreting it.

LOL... But this one I don't understand. You said:

Of course if they had just followed the law, and the regulations of the border patrol, they would not be in prison now. What specific "law" did the agents "not follow" that would have kept them out of prison?

Are you saying--if they didn't shoot? If OAD was pointing a gun, that's kind of a rotten choice, isn't it?
Should they just wait it out and if they die, "oh well"?

[erton1]

When the agents begin with the border patrol they go to a training academy. At the academy they learn the laws and regulations on the use of firearms and when its use is permitted and justified. The standards taught are the same I have discussed in previous posts. I have friends who are BP in SA, and I understand this is drilled into them. For some reason, these guys ignored the rules and regulations, which are based on the laws of legal justification. I think something went off with Compean after the altercation with OAD when OAD began to run away and flee. I don't think Compean was trying to hit OAD, just scare him, too many misses. But Ramos got caught up in it and he hit him. I also believe they knew that OAD was hit and that is why they cleaned up the scene. From what I can tell Fabens was not a tightly run station and I doubt that they would not have been concerned unless they thought they hit the guy.

You ask "if OAD was pointing a gun" "If" is like "possible," it does not meet the standard necessary to meet their burden. The testimony, giving the benefit of the the doubt to the defendants, may raise to an "if" but I don't think the "black shiny object" and the angle OAD was running testimony was enough to meet their burden for the jury or the legal standard.

[calcowgirl]

Well, you are just saying you don't believe their story then.

IF their story were true, they broke no "law," correct?

[erton1]

No, I think it is clear that the actions of the defendants show that an assault, using a firearm, occurred. The only question left is whether it was legally justified. Their testimony did not raise to standard of justification. The testimony was equivocal, did not show that any alleged threat was imminent, nor that there was a reasonable probability that OAD represented a threat of serious bodily injury or loss of life to them while he was fleeing AT THE TIME of the assault. The defendants try to make a big deal that the altercation in the ditch gave them the necessary fear to justify the shooting, but realistically that threat was gone when OAD was fleeing, and surely was not imminent. Like I previously posted, I think the altercation triggered something in Compean which led to the shootings. Still the altercation is not legal justification for the shooting.

[erton1]

The testimony about a black shiny object also does not show an imminent threat either. It is not reasonable for these guys to believe OAD had a gun on him that he would use while fleeing to Mexico, and didn't use earlier in the ditch. He was already on his way back to Mexico, not wanting to shoot it out with agents. Again, this testimony didn't raise to standard required, either for the jury or the legal standard.

[calcowgirl]

Well, now we're just down to opinions, not the law.

When I said "IF" their story was true, I meant that they truly did fear for their lives and they truly did believe that he had a gun at the time. Just because you think someone was a bad witness, or the attorneys did a poor job, does not make the events any more or less true. They were what they were.

[AndrewC]

That testimony proves my point that there was no evidence that OAD had a weapon. Quoting the testimony:"Q:do you think he had a gun or do you know? A: I can't be sure." This is another example of why I think Ramos made a poor witness

You repulsive weasel. You are worse than Kanof. You know you left out a very important part of the question.

11 Q. Okay. How about today, looking back on it? Do you think
12 he had a gun or do you know?
13 A. I can't be sure.

The decision he made at the time was in seconds and under duress. What you are doing is what every one knows as Monday Morning Quarterbacking. The Monday morning quarterbacks always win on Monday, but if they were playing on Saturday or Sunday, they would get their asses kicked. You said you were a lawyer, so I sincerely doubt you were ever in a combat situation where split seconds separate you and your comrades from dire consequences. Things happen so quickly, there is little time to reason and only time to react. I know that I would be miles from you if we were in the same combat unit. I'm sure many who have faced these situations would feel the same about you. You, Juarez, and Vasquez show your mettle and a chihuahua has the goods on you all.

Go stuff it where the sun don't shine. I'm ending my discourse with you.