Posted on 07/28/2008 11:46:09 AM PDT by Nachum
In a complex decision, the Fifth Circuit Court of Appeals affirmed the major counts against former Border Patrol agents Ignacio Ramos and Jose Compean but reversed the obstruction of justice counts and sent the case back to a lower court for resentencing.
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And they can stare all they want. What they actually need to do is provide a cogent argument of why the prosecutor was allowed to re-word the statute in when indicting and prosecuting two federal agents that were fully authorized to carry, possess and use firearms as part of their jobs as Border Patrol agents. Especially in light of the fact that the individual they took action against was an admitted illegal immigrant who was in the process of illegally smuggling drugs. And a illegal immigrant/drug smuggler who wasted no time in returning to his illegal activities after he signed an immunity with federal prosecutors.
How you actually reconcile their ruling with these two Border Patrol agents with their rulings in the McGilberry and Barton decisions is beyond me. In those decsions they ruled that "discharging" a firearm did not constitute an "actus reus" element of the statute or a separate offense. It only constituted a sentencing guideline after a "guilty" verdict had actually been reached.
Because they are applying a statute that was never intended to be used against LEO's taking action against criminals committing illegal acts (as Congress has stated repeatedly), they simply can't give the prosecution that kind of latitude in this particular case.
It was gut-check time at the Fifth Circuit. And the judges, unfortunately, flinched.
Sutton and the DOJ are in it. As is the BP, as is the district judge, as is the appellate judges, as is the jury, as is the witnesses, including Ramos, who testified against himself. Even Bush and the Mexican president are in on it too.
So while you may believe this makes the conviction bogus, the three judges on the court of appeals disagree with you.
Sorry, but they they side-stepped critical points that Mark Brewer made.
First, as Brewer points out, in the McGilberry and Barton decsions the court stated that "discharging" a firearm did not actually define a crime but was only a sentencing guideline. You can't actually reconcile the rulings in McGilberry, Barton, and the Supreme Court's ruling in Harris, with the decision they made against these two federal law enforcement officers.
The prosecution tries to claim that there is nothing in the statute that specifically prohibits its use against LEO's taking action against individuals in the process of committing illegal acts, but then the statute does not actually say that "discharging a firearm" is a crime. So, first the prosecution insists on strict adherence to the wording of the law, while simultaneously demanding the freedom to change the wording of that same law because it facilitates their task in a particular case.
Sorry, but they can't have it both ways. There is an obvious dichotomy inherent in that kind of reasoning. And this is why it creates a bad legal precedent. At least in a case involving LEO's taking action against individuals committing illegal acts; something that Congress has repeatedly claimed was never the intent of the law.
And the courts have repeatedly ruled that "discharging" a firearm does not constitute an "actus reus" element of the statute but only a sentencing guideline.
Brewer lays down a true test if you really want to grant the prosecution the latitude to change the wording of the statute : even if the elements of the statute had, in fact, been faithfully recited to the jury as part of their instructions, the jurors would have still come to the very same conclusions ( for their verdicts ). Brewer invokes the U.S. v. Sullivan as a precedent ( verdicts overturned ).
Sorry, no one can honestly claim, in this particular case, that the jury would have still come to the same conclusions if they actually had to find the Border Patrol agents guilty of having "used, carried, and possessed firearms in relation to a crime of violence".
I think Ramos got screwed. I think he thought Compean was in trouble, and when he saw Compean on the ground he took a shot. Then he realized there was no threat, and then he realized he might be in trouble.
As the 2nd shooter, he could have said that since Compean had shot, he assumed there was a threat, and that when he saw Compean his first impression was that Compean had been hit.
I would think a jury would have accepted that, especially since there was no other evidence that Ramos meant any harm, and since he only took a single shot. But that would have put the entire onus on Compean to prove there was a threat.
And I think if he had just reported the incident, he would have been fine.
Instead, he fed into the cover-up, which made him look guilty. In my opinion he did so because the two of them decided since the guy was gone, and nobody else was going to say anything, that it would be best for them to just keep quiet.
Then, when they were caught, I think he still could have gotten off or had a minor conviction if he had said he shot because Compean had shot. But it helped Compean for Ramos to say he saw a gun — or it least it would have if the jury had believed them.
The travesty continues.
Q. Did you actually see the alien as you were driving up? Did you see the driver of the van go into the ditch?The direct testimony said about the same thing, but this was more succinct.
A. No, I did not.
Q. But you saw that's where he went?
A. Yes.
Ramos is the most pure of all of the testimonies. He told his story one time. That was on the stand. No other testimony contradicted his except for some extraneous hand signal introduced by the known liar Juarez. That "hand signal" had to do with the emergency lights on Juarez vehicle according to Juarez. The event at the ditch and vega happened in a minute or so. When Ramos crested the levee on his way back, he saw nearly the whole Fabens contingent there at the scene. He knew that more agents arrived while he was on the north side of the ditch and before he began his "rescue" run. He testified so. It is then quite easy to erroneously assume that everyone knew about the pistol firing. They had heard the shots, corroborated by testimony, and they would have known that something was going on. The mistake was that in the excitement Ramos did not say "I shot my pistol." That would have been(assumed) known.
Ramos shot because Davila turned and pointed his hand(empty or not) at Ramos. It might have been to flip the bird. Nonetheless, Ramos saw a fugitive who failed to comply with instructions, and his partner down(not standing). He heard shots and did not know who shot what. He had just run through a ditch, over a levee, and down just past the not-standing Compean. He did not have the luxury of stopping to peruse the scene and determine exactly what happened. When Davila turned while running, he received the action that I would have performed. He got shot. The wound path is very consistent with what Ramos described. Davila fell right at the edge of the river, and Ramos and Compean were just to the river's side of the drag road with Ramos a few yards closer than Compean. Ramos and Compean's testimony place them together on the vega, and Davila corroborates that. When Compean and Davila began their run, Ramos had just entered the ditch. Davila did not walk to the river so Compean and Davila were a distance from Ramos. The time Davila took to reach the river was the same time that it took Ramos to finish climbing out of the ditch(he heard all the shots while in the ditch), run over the levee then past Compean, yell stop, see Davila turn, and fire the single shot he performed. That time was measured in seconds. The wound trajectory corroborates Ramos.
The fact that two agents both fired at the same guy indicates to me that the guy did something to deserve the action. These agents did not plan or otherwise consult each other to devise a plan of action against Davila(the prosecution and its defenders have tried to characterize the agents in such a way that the action they performed was an expected outcome. It was not) Compean was on duty, and Ramos was eating lunch when the encounter began. Ramos used his skills as an agent to join the chase of Davila, and his biggest mistake was to try to do the duty for which he raised his hand. A good deed never goes unpunished.
I'm not a lawyer, or a judge. However, 3 experienced lawyer/judges seem to think yours and Brewer's ideas are wrong.
That is not a known fact. That is the testimony of Ramos. Davila said different. The jury had to determine which was the truth.
The wound trajectory corroborates Ramos.
The wound trajectory is inconclusive, and supports a man running at an angle to the shooter. This would be true if the man turned, or if the man was running around shrubs.
The turn is the wrong way for Davila if he held his gun in his predominant hand. He would be holding his gun across his body and trying to shoot. Normal would be to stretch your arm out away from your body and backwards, but that would have put his body in the opposite turn.
The two agents gave their testimony at trial, as did Davila. The jury ruled based on that testimony, and the appeals court saw no reversible error, and ruled that the evidence was consistent with the verdict.
The jury could well have chosen to believe Ramos and Compean, and if so to find them not guilty. Since there is no videotape, we will never know what really happened, we will only have the contradictory testimony of the men who were there that day.
“C’mon, please stick to reality. Ramos and Compean didn’t know the guy was a drug smuggler. He was certainly acting suspiciously, but be serious . . . the shooting was justified because the guy might return with more?”
All of this started with sensors going off at the border.
Being a "lawyer/judge" does not preclude someone from making a dubious/unjust decision in a given case. History has proven that in spades.
Hell, even judges on the Supreme Court make the wrong decisions from time to time.
You are correct. However, at some point, once you have examined the history of those making the experienced judgements, you have to at least concede that the guilty verdicts were not baseless.
There is a difference between weighing a hard choice and choosing incorrectly, and taking a slam-dunk choice and screwing it up.
My argument has been that in this case, the prosecutor did not “obviously” commit evil by prosecuting, the trial didn’t have to be obviously flawed, and the judge was not obviously corrupt.
In other words, I do not believe this was a travesty of justice, even if one disagrees with the verdict.
And Davila said at least two agents behind him were pointing guns at him. Only Ramos admitted to having his gun out. Davila also said he did not jump out of the van while it was moving. Look at the photo of the van taken at the scene by the Border Patrol supervisor. It shows dirt jamming the driver side door of the van where it had stopped at the ditch with the front tires hanging over into the ditch. The door could not have been opened with the van as it was positioned when it came to rest.
No, it was conclusive as to the path it took in Davila's body. Certainly it is possible that the trajectory is consistent with an angled shot, but Davila's testimony has no indication of shrub hopping. Further, Davila ran away from the point where Compean was on his knees. Ramos ran just past Compean and pointed at the fleeing Davila. Geometry tells me that any angle that Davila's path would make relative to the line segment formed by the position of Ramos and the position of Davila would be miniscule and not a 45 degree or so angle that the left lower part of the left butt makes with the center of the groin. Reaching back does make that angle on a running man. The position of Ramos as close to Compean is verified by Davila's testimony.
Now a little more geometry. Water flows downhill. Water tends to carve channels as it flows. A river has banks. Due to these facts the banks of a river slope however slightly towards the water. Davila testifies that he did not turn in any fashion and that he fell upon being hit in the buttocks. He would have fallen in the direction of his travel and face down with his head in the downslope of the river bank, however gentle that slope may be. Thus, it would be difficult for him to look directly backwards and be able to see the agents. He does testify that he sees them together and turning to leave the scene with their guns lowered. Again he directly places the agents together within seconds of the shot. He was not running at an angle to them.
It is not conclusive that Davila is right handed. In any case that is not relevant to the officers, who at the time did not know whether Davila was left or right-handed or even ambidextrous. He made a threatening motion at them. The fact that the jury made a conclusion is irrelevant to me since I believe they were wrong. Juries make mistakes. The argument is whether there was no reasonable doubt that Davila was a non-threat. Otherwise, officers are guilty no matter what, whenever the lawbreaker contradicts the officer as to "threatening" gestures in a tense situation. One felon was believed over two agents. The fact that no one saw a weapon during the seconds numerous agents had visual contact on the fleeing Davila in an extremely fluid situation is not sufficient cause to prove that Davila was unarmed. A patdown under controlled circumstances is that guarantee.
Reaching back and looking back give you the same result.
I didn’t understand about the “pointing guns” and “only Ramos” admitted to pointing a gun — It is clear Compean pointed and shot his gun at Davila as well.
I don’t have any particular reason to believe Davila, but the jury didn’t find Ramos and Compean to be compelling witnesses apparently.
Except that Davila explicitly denies even looking back until he was on the ground. It points to his credibility. The fact remains, two officers shot at him for their same independent assessments.
The "pointing guns" is another situation leading to the incredibility of the government witnesses. The government witnesses, Davila and the other two agents, disagree on the pointing guns. The testimony of Ramos and Compean do not enter this calculation. This particular part of the testimony relates to the officers behind Davila and does not include Compean who was in front of Davila at the ditch but does include Ramos who admits to having his pistol out. Juarez denies even touching his weapon and Vasquez denies being at the scene until he heard multiple shots just as he opened his vehicle door. He did not see any shooter.
We already know what the jury found. So mentioning what the jury found is irrelevant to me. It is similar to saying that Fred crossed the road because he saw that it was clear in a situation where I say the truck that hit him didn't care what Fred thought he saw.
In the final analyis only three people could witness on what happened on the vega, two officers and a suspect. The jury chose to believe the suspect. I am giving reasons using the total testimony to illustrate why the jury was wrong.
The Fifth Circuit said this case was primarily about "credibility", but is there anyone, in their right mind, who still finds Osvaldo Aldrete-Davila "credible" (with the possible exception of his own mother)...?? If so, who....?? If Johnny Sutton had to do it over again, do you honestly think that he would still sign that immunity deal with Aldrete-Davila...? No way. OAD has proven that he can't be trusted. And if the prosecutor can't trust him, then that prosecutor has no right to tell a jury to believe him.
Those were issues for appeal, and the appeals court finds no merit in those claims. This is a matter of opinion, but I find it easier to trust the opinion of three highly experienced appeals court judges who had complete access to all the information and briefs.
Then what is their excuse for mistating the facts of the testimony as I have pointed out above? Vasquez picked up 5 shells, not four. Juarez did not see Davila exit his van. In fact, Juarez testified he never saw Ramos, who would have exited his vehicle just prior to Juarez arriving, at the scene until Ramos crossed back over the levee after the shooting. And finally, Ramos testified he did not see the confrontation between Compean and Davila at the ditch since he had just began his entry into the ditch in order to assist Compean. He based his "rescue" attempt on the fact that he sensed that Davila, after having looked back, was ready to evade or attack Compean. That statement in and of itself was a testimony of threat by Davila.
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