I understand that if it turns into a criminal investigation, then you have a whole different matter, but the initial incident, in itself, was not considered a criminal matter at the time, or was it?
The government produced evidence showing that the defendants violated a number of Border Patrol policies in pursuing and firing upon Aldrete-Davila. The defendants characterize the trial as one in which the Border Patrol policies were substituted for the actual crimes charged and that by permitting evidence that established policies were violated and strict rules were broken the district court allowed the government to avoid the more difficult task of showing that the defendants had engaged in criminal conduct.The 5th Circuit vacated the portion of the convictions regarding "tampering with an official proceeding." Unfortunately, it is not the "meat" of the (other) convictions that are keeping Ramos and Compean in prison.The defendants were charged with tampering with an official proceeding under 18 U.S.C. § 1512(c) by failing to report the shooting to their supervisors. They argue on a number of grounds that such a failure to act constitutes neither tampering with evidence nor inhibiting an official proceeding, an argument that we conclude has merit.
In other words, the whole "was or was not policy violated" argument is really a red herring, and taken in a light most favorable to the defense (and there is no reason we shouldn't) is still a Pyrrhic victory for Ramos and Compean.
A crime was committed which required the intervention of the FBI. Since the investigation and the prosecution was FUBAR we don't know exactly who committed the crime. One of the problems to understanding this case is the culture of the Border Patrol and border law enforcement. The story that Ramos and Compean told is entirely plausible because it has happend so many times before on the border. Unfortunately, for Ramos and Compean choir practice caught up with them.