A couple of months ago, I was creating a Medicare Part D presentation for pharmacists. I was doing research on the impact of this monstrosity on pharmacists when I ran across one of the funniest blogs on the internet, The Angry Pharmacist.

Here are the posts I found about Medicare Part D (with the profanity bleeped a bit—although I understand why he was cussing). My audience loved it when I read these snippets—they all thought that Medicare Part D is stupid too.

January 2, 2006
Medicare Part D – Day 1

In the words of my boss:
“More people will die because of MediCare Part D than Hurricane Katrina”.

In the words of me:
“This is a complete and utter clusterf&%#”.

January 3, 2006
Medicare Part D – Day 2

Day two of the MediCare part D fiasco has come and gone.

I must say, that this is the biggest clusterf&%$ in the last 40 years of pharmacy.

January 9, 2006
Medicare Part D – Week 2

Welcome to the start of Week 2 of hell, er.. Medicare Part Diaster!

January 10, 2006
Medicare Part Disaster.

The saga continues. After a nice relaxing dinner, a few drinks and a puff of some fine pipe tobacco, i’m ready to bitch more about Medicare Part D(iaster).

February 26, 2006
Medicare Part D – Aftermath

Sorry I havent been posting much. This medicare part D bull^&$ has finally stopped hitting the fan, so now I have a breather.

January 2, 2007
Medicare Part D – 1 year later

If you’re a pharmacist, and reading this, you’re probably drunk (or hung over). I just had about 5 shots and a bottle of wine with a dentist friend of mine, so this might not make too much sense (im pretty hammered). But you’ll understand why (if you’re not a pharmacist) if you read this entry.

Needless to say, today was chaos, hell, and a bit of clusterf$%@ all rolled into one. Words cannot describe it. All I can say is that if you were working in pharmacy 1 year ago (when Medicare part D sh&^ hit the fan) it was like Deja Vu.

I just stopped over there, and the AP has some hilarious posts up. I particularly like this one, Showers Are Your Friend.

You can listen to my first show of “I Object! Justice Examined” below:

I had my first show on Right Talk Radio today. Jerome Corsi and Sheriff Letsinger were my guests and they did a fabulous job talking about the Ramos and Compean, and Gilmer Hernandez
cases.

You can listen to the replays through tomorrow here.

This is a disgusting. If any cop should be prosecuted for a bad shoot, it appears to be the ones involved in this story. A 25 year old veteran is sitting on the porch of a house where he was housesitting talking to a woman friend and her children, when,without an arrest warrant, paramilitary goons converge on him.

They surround him and tell him to get his hands out of his pocket, almost instaneously tasering and paralyzing him. He tells them he’s trying to comply, but they taser him again and he falls over vomiting. He comes up in a seated position and they taser him and then, almost immediately, one of these thugs shoots him three times in the chest and kills him.
(Go to Pro Libertate to see the timeline)

I don’t know why this guy joined the Pagans, but he had a clean record. He was from Virginia and had a Virginia license to carry a concealed weapon—which he did not have on him at the time. You don’t get a license to carry with a criminal record.

There are plenty of witnesses who say that Hale was trying to comply—but was paralysed by
the taser.

Howard Mixon, a contractor who had been working nearby, couldn’t abide the spectacle.

“That’s not necessary!” he bellowed at the assailants. “That’s overkill! That’s overkill!”

At this point, one of the heroes in blue (or, in this case, black) swaggered over to Mixon and snarled, “I’ll f*****g show you overkill!” Having heroically shut up an unarmed civilian, the officer turned his attention back to Derek – who was being tased yet again.

These cops should be prosecuted and jailed for a long time. It’s doubtful that will happen.

After all—Mexico isn’t demanding their prosecution.

Free the Texas 3 and prosecute the heck out of these hoodlums in SWAT attire out of Delaware!

I’ve joined the lineup at Right Talk Radio with my own monthly show. Some of you might remember that I occasionally subbed for Mychal Massie’s show, Straight Talk during the past couple of years.My first show will be this coming Thursday, March 29 at 3PM ET.

Guess what topic I will be discussing? That’s right, Ramos- Compean and Gilmer Hernandez.

I’ve invited Jerome Corsi and Sheriff Letsinger to be my guests.

Jimmy Parks hits the nail on the head when he says:

What homeland security does to these young guys down on the border is it gives them a heightened sense of responsibility. It tells them about dangerous individuals who will be crossing the border, like the MS-13 gang and possible terrorists.

And when you put that kind of responsibility on them, when you make them the bellwether, the first line of defense for our border to turn back around, anytime they react and attempt to do what they think is right to protect us, and then to prosecute them sends a message to the individuals in law enforcement on the border that they’d better not react and that they’d better be overly cautious and they’d better err on the side of caution.

Jerome Corsi breaks the story that Gilmer Hernandez and Edwards County is going to be sued by the two illegals wounded by bullet fragments. Of course, at least as to one of the illegals, the liability of the defendants will be established by res judicata because of the conviction of Gilmer.

Jimmy Parks, defense attorney for Hernandez, told WND the lawsuit “has just become standard operating procedure down here on the border.”

“There is a natural progression that begins when these people organize a professional (human) smuggling ring to get illegal aliens into the United States,” he said. “They become very sophisticated at it, then when law enforcement makes the attempt to try to break up the smuggling ring, they just run away.”

These illegals participated in a criminal conspiracy which included trying to injure or kill the deputy as they escaped arrest for immigration violations. Now, they will cash in because of our very own United States Attorney and his prosecution of this deputy at the behest of the Mexican government.

The influence of the Mexican government becomes even more apparent when you read Johnny Sutton’s press release regarding his refusal to prosecute a police officer in Austin, Texas. This release was found by Joe Hyde at LIVE! and passed on to Sheriff Letsinger, Gilmer’s boss. The Sheriff told me about it after I called to talk to him. Notice this part:

In order to prove a violation of the applicable federal criminal civil rights laws, prosecutors must establish beyond a reasonable doubt that a law enforcement officer willfully deprived an individual of a Constitutional right. To act “willfully” for purposes of the federal statute means to act with a bad purpose to disobey or disregard the law. Accident, mistake, fear or bad judgment is not sufficient to establish such a criminal violation.

(emphasis added)

Is this the standard that Sutton applied to the Gilmer Hernandez and Ramos Compean cases?

The officer involved in the Jesse Lee Owen case discussed in the DOJ press release was actually indicted by a Travis County Jury.

Glasgow was indicted on Oct. 20 in connection with the late-night shooting death of Owens last summer on Tillery Street in East Austin. According to the APD, Glasgow was on patrol near 12th and Airport shortly after midnight on June 14. For unexplained reasons, Glasgow noticed the Dodge Neon that Owens was driving, called in the car’s license number, and was told (incorrectly) that the car was reported stolen. Glasgow requested backup and followed Owens to Tillery, where Owens pulled over and Glasgow pulled up next to him. Glasgow approached Owens, his gun drawn, and tried to get Owens to get out of the car, leaning over the partially opened door in an attempt to remove the keys from the ignition. Owens allegedly accelerated, and Glasgow somehow got his arm, pistol drawn, stuck inside the car. Fearing for his life, Glasgow fired his pistol five times, killing Owens. The car came to a rest on a neighboring lawn.

The Grand Jury apparently indicted because of some policy violations committed by the officer:

A Travis Co. grand jury considered the case for nearly 90 days before issuing an indictment—the first time an Austin officer had ever been indicted for an on-duty shooting. But the language of the indictment was unusually circumspect, as the jurors sought to hold Glasgow liable for Owens’ death not directly because of the shooting, but based on a list of procedural violations—such as parking his car too close to Owens’, failing to turn on his emergency lights, and failing to wait for backup before approaching the car. (For more on the case, see “Something Went Wrong,” Dec. 12, 2003.)

If you go read “Something Went Wrong” , you will discover some odd things about the story given by the officer that, apparently, led the indictment.

After the case was dismissed by a Travis County District Judge, the family pressed Johnny Sutton’s office to investigate. Sutton chose not to prosecute this case—despite the fact that Jesse is dead and there are some similarities to the cases of the Texas Three. But, after all, the Mexican Consulate didn’t call Johnny Sutton over Jesse Lee Owens.

You just have to wonder.

Joe Hyde has a piece at LIVE! about Gilmer’s sentencing. The judge granted his motion for downward departure despite the protestations of the prosecuting attorney. Here is a snippet:

Dawson seemed to agree, referring to guidelines that would accommodate a lesser sentence.

For the prosecution, Assistant U.S. Attorney Bill Bauman approached the podium, and reiterated the jury’s verdict. “The government relied upon the jury’s verdict. The jury was asked by the court to render its verdict,” Bauman said, as he pushed for harsher guidelines. Bauman produced pictures of the victim and Dawson allowed them to be placed into the record. “The jury agreed that Hernandez caused bodily injury and that violated her civil rights,” Bauman stressed. “The defendant knew he was firing at a loaded vehicle,” he said.

Ashley Hernandez tearfully, yet defiantly answers questions of the television media after hearing the sentence her husband will face of 12 months plus one day in prison. (LIVE! Photo/Joe Hyde)
click to enlarge“But the first shots were fired at the tires of the vehicle,” interrupted Dawson.

Bauman answered, “Yes, but we were willing to give the defendant the first three shots [and not prosecute]. But when that car drove off, and more than three shots were fired, one of them was the one that blew the face off this lady,” Bauman said.

Dawson: “But the indictment doesn’t mention intent to cause harm.”

Bauman: “The jury was charged to determine if the defendant was too unreasonable when he attempted to seize the car. He was intending to seize that car. It was an occupied car. And that’s where he went wrong.”

“That doesn’t seem fair,” said Parks in response. “We’re going to add another six levels. I feel like he [Hernandez] is being double-convicted.”

Bauman: “Mr. Parks is incorrect. It is an offense involving individual rights, not necessarily an offense committed by a person, but a public law enforcement office under the color of the law. The purpose [of this sentencing guideline] being more harsh is because he is an officer of the law and to enhance public confidence in our law enforcement.”

In all, the defense had 13 objections to the pre-sentencing documents. The prosecution had six objections that Bauman did not reiterate. Instead he asked the judge to place them on the record.

After leaving the building upon hearing her son’s sentence, Gilmer Hernandez’s mother Rose collapses and requires medical attention on the lawn of the courthouse. (LIVE! Photo/Joe Hyde)
click to enlargeDawson continued to dissect the sentencing guidelines. “The real question is whether or not this [the guideline for minimum sentencing] falls under aggravated assault or offenses to an individual’s civil rights,” Dawson said, because the difference between the two is substantial, he added.

The final sentencing guideline discussed was to subtract two points from the sentencing guideline’s severity for acceptance of responsibility for the crime committed. Mr. Parks was asked to comment.

Parks noted that immediately after the events of that evening, the defendant admitted the conduct when it happened. He sought out Border Patrol Agent Terry Hunt and his (Hernandez’s) boss, Sheriff Don G. Letsinger. Hernandez reported the incident immediately and wrote a written report of the events that evening. What is more, according to Parks, Hernandez assisted in the investigation. Hernandez surrendered to authorities and voluntarily stepped down from his position as a deputy sheriff. He agreed to participate in counseling. “This is the case the Sentencing Guideline Commission was thinking about when they made provisions for this reduction,” Parks argued.

Bauman: “This is not a reward. It is an incentive… The intent of Congress is to do what we do with kids. ‘[We tell them] Look, you goofed. But you need to come clean.’”

Bauman said that anyone could second-guess this incident to death. He said you could argue that the fleeing Suburban was a threat to a car headed the opposite direction down Highway 377 from Fredericksburg.

“If he puts his gun back on and all Letsinger’s deputies think it’s OK to shoot and not admit you are wrong. He hasn’t accepted responsibility,” Bauman asserted.

The judge didn’t buy Bauman’s argument and departed from the guidelines giving Gilmer 12 months and 1 day.

Among things testified about by Special Agent Chris Sanchez was that there was a plan to retaliate against Border Patrol agents by Mexicans who knew Aldrete-Davila.  It is no surprise that Aldrete refused to tell Sanchez who was in on the plot.  His buddies also had immunity because Sanchez and his prosecutorial team wanted to imprison the shooters so badly, that they were willing to overlook a bona fide murder plot – a plot to murder federal agents – in exchange for the information they felt Aldrete and his right thigh had (the bullet).

In other words, it appears agents of the United States government conspired to allow a murder conspiracy by Mexican nationals against agents of the United States to remain unsolved to obtain the cooperation of Aldrete.

Chris Sanchez as a Homeland Security agent had the opportunity to do the true right thing in this case.  Instead he let it get away.  First he bluffed, and Aldrete called him on it.  He then put all of his cards on the table, and they weren’t good enough to win.  Yet, he thinks he did.

What other things might he have done to get the information?  Well, he might have taken a used car dealer with him instead of a federal prosecutor when he visited Aldrete in Mexico.  When he asked Aldrete about the clinic, and Aldrete refused to answer, a used car dealer would have had Sanchez out of his seat and walking toward the border with his immunity paper in his hand unsigned.

Sanchez may not have any jurisdiction in Mexico, but it does not mean he cannot ask questions, get others to ask questions, or be a tourist looking at all of the sights.

It seems to me that Aldrete probably isn’t a wonderful upstanding citizen of Mexico either.  Maybe not the worst, but if the Mexican authorities actually wanted to assist, they could have.  It would be nice to corroborate things that Aldrete said were true.  So who picked him up in Mexico after his swim (or wade)?  What clinic did they go to?  Who set up the delivery?  Who owned the van?  Who owned the drugs?  Where were they going and to whom?  Who was involved in the conspiracy to murder US agents?  If they would murder US agents, might they not try to do in Mexican authorities who got too nosy?  The only person who seems to be curious about these issues was Attorney Mary Stillinger who tried to ask some of them in Court.

How much trouble would have been for the US government to get the Mexican authorities to ask (or even demand) some of those answers?  If the Mexican consulate wanted this so-called crime investigated, it seems to me that they have some leverage to ask some questions.  And why wouldn’t you want to do so if you were an agent of Homeland Security?  Why wouldn’t you demand the information if you were the US Attorney?  How about a polygraph for Aldrete?  You may not be able to use it in court, but it is one whale of a screening device.

Sanchez said that they notified the Border Patrol offices of a possible plot to kill agents in retaliation.  They took steps in other words.  He made no mention whether they notified the Mexican authorities to try to head off the retaliation or investigate it.

So as I’ve written before, he had all the incentive and none of the responsibility.  He got a deal and Ramos and Compean got the shaft.  In this case the US Attorney wanted to make an example out of the agents who were trying to do their duty.  Debra Kanof continually refers to Aldrete at the victim.  Aldrete however is a predator, a career criminal, a smuggler who should go get an honest job – away from the border.  Aside from what happened to the agents, the real victim is truth and justice and the American people when the government looks the other way at drug running, a murder conspiracy, assault on federal officers and gives immunity to the real criminal and convicts others on a made up crime.

I have to take a break. I’m busy dealing with this.

Joe Hyde at Live Daily, has written a heart wrenching story about Gilmer Hernandez and the kind of man that he is. This is the man that prosecutor Bauman demonized in the courtroom.

Go read it.

Doctor Bieganowski was prosecuted and convicted by Debra Kanof for Medicare and Insurance fraud. The case involved charges of mail fraud and allegations of upcoding and bundling. These are extremely complex cases that are difficult to defend against. They are also expensive.

Doctor Bieganowski’s website is here. Apparently, his patients put it up for him.

I don’t know if the doctor is guilty or not. In fact, I don’t know if the complete truth saw the light in the courtroom because of several tactics used by the prosecutors and some seemingly strange actions by the judge. In fact, a lot of this is straight out of Paul Craig Roberts’ article The Causes Of Wrongful Convictions and Bill Moushey’s series Win At All Costs.

First, the prosecution gave deals to some of the employees in return for testimony. In fact, the doctor’s brother, Victor, testified against him. Here is an interesting story about the brother and what he did after getting a deal. Remember the series Win at all Costs that I wrote about here? In that series, there are numerous stories of defendants eager to assist prosecutors put others away in order to save themselves. Perhaps Victor’s lack of character runs in the family, but that doesn’t justify some of the other things that happened in this case.

Second, the prosecutors had all of the doctor’s assets seized so that he did not have funds to pay for his defense. Expert testimony is crucial in a case like this. The doctor lined up an expert who had just defeated the government in the same courtroom in another case. The judge in the doctor’s case denied a motion asking the release of sufficient funds to the doctor to pay for the expert to review the case. He did so based on the government’s claim that the doctor had hidden assets. The doctor was unable to use the expert.

Third, the expert that the doctor did retain was threatened by the government with a charge of Misprison of Felony. They also threatened her with perjury charges. She testified, but there is no telling how these threats may have impacted her testimony.

Fourth, Dr B. says that Debra Kanof was allegedly accused of lying to the Court and she allegedly retained an attorney named Gary Weiser to represent her in this matter. This is alleged in one of the doctor’s motions. I cannot figure out if she was supposedly accused of this in the doctor’s case or another case. Given that Gary Weiser represented Victor Bieganowski in this case, I don’t think that it could have occurred here. Gary Weiser was formerly an El Paso Assistant District Attorney and also represented one of the Border Patrol agents who turned on Ramos and Compean, Juarez.

Fifth, the judge in this case is apparently related to Victor B’s wife in some way. Further, when he practiced as an attorney before assuming the bench, he referred cases to Dr. B.

Sixth, the prosecutor employed in a tactic called “jumping the bus” in this case. Paul Craig Roberts wrote about that in the article linked above. A convict testified at the bond hearing that Dr. B. threatened to abscond and kill people if he was out on bond. Dr. B was not allowed out on bond to assist his defense. That seems strange to me in a white collar crime situation.

Seventh, one of the jurors had a medical emergency and some of Dr. B’s doctor co-defendants were allowed to carry the juror into the jury room and render aid. The judge did not declare a mistrial for this. I wonder about this.

Eighth, the judge allegedly received and answered a written jury question without notifying and allowing the defense counsel to see the question and answer before this was done.

All of the above is found in various documents on Dr. B’s site. Most of it is in documents written by him. However, the 5th Circuit opinion does seem to confirm that there were some sort of threats against the expert—though they were not found to have prejudiced the case. It is also common to freeze the assets of white collar defendants denying them resources for their defense. Paul Craig Roberts writes about this in the above article as well.

It is a very odd case. I would like to find out more about the allegations of Gary Weiser’s representation of Kanof in some kind of hearing.

Update:

See this.

Bieganowski argues that a conflict existed between himself and attorney Luis Islas, who represented Lucy Campos.FN1098 Bieganowski states that, in March 1996, through Bieganowski’s attorney Jim Darnell, Bieganowski hired Islas to represent Bieganowski and Bieganowski’s employees in the event that the FBI or the grand jury sought to question them.FN1099 Bieganowski also alleges that a conflict of interest existed between himself and attorney Gary Weiser. Bieganowski asserts that Weiser represented Victor Bieganowski in the case at bar and also previously represented prosecutor Debra Kanof in an unrelated matter.FN1100 Bieganowski argues that counsel should have filed motions asking the Court to order Islas and Weiser to withdraw from representing Campos and Victor Bieganowski.FN1101

Why would Debra Kanof need to retain the services of an ex-Assistant District Attorney and now criminal defense attorney?

Special Agent Chris Sanchez testified that the other agents cooperated after they were given “proffer letters” that to his “understanding” meant they wouldn’t be prosecuted for what they testified about in relation to this case.  What these proffer letters do, however, is terrify and devastate the officers.  Each letter can be tailored to fit each officer and the circumstances about which they are to testify about and to their involvement.

Proffer letters are used by prosecutors as weapons.  When a person (especially an officer) is given a proffer letter, he or she knows that he or she has been targeted.  Lack of testimony, lack of candor or veracity will undoubtedly mean prosecution.  I’m not sure about you, but if a federal prosecutor has targeted me, all I am going to be thinking of is going to federal prison.  What with federal sentencing guidelines, the recipient of a proffer letter had better be thinking seriously about hiring a lawyer.

The proffer letter is very little protection for the officer who receives one.  It can be tailored so narrowly, that if the officer fails to cooperate to the level of satisfaction of the prosecuting attorney, all bets can be off.  When all bets are off, the officer can find himself on the receiving end of every charge that can be made to fit the elements of a crime.  Any “crime” or perceived wrongdoing that was going to be forgiven will suddenly be prosecuted to the fullest extent of the law.  A perceived lie becomes obstructing justice, lying to a federal officer, or suborning perjury.

The proffer letter is supposed to be used to gain cooperation of low level criminals when they are investigating bigger fish.  A drug transporter with, say, 743 pounds of marijuana gets a proffer letter in exchange for his testimony against the guys who hired him and their bosses (hopefully).  With the big time that can result from sentencing for a big load of dope, the driver of a van load is likely to help the prosecutor.  After all, he is just trying to get a few dollars perhaps to buy medicine for his sick mother.

The tool can be very effective, but when used against officers, it is a devastating weapon.  Officers frequently live in a world that they view as black and white.  They are mostly from blue collar families with strong morals.  To suddenly be thrust into an environment where they are looking at federal charges over what essentially is not a crime, can wound the psyche of an officer far beyond what happens to anyone who is a true criminal.  Even experienced officers can be very naive when under the gun in a criminal proceeding, especially when they know or believe they have done essentially nothing wrong.  The officers very frequently love the agency they work for, but they are suddenly finding out that the agency does not love them.

What am I saying? You may ask.  Simply this:

If you are committing a deliberate criminal act for which you know that any law enforcement officer would arrest you, you have accepted a certain amount of risk.  You may not know the exact penalty, but you know that arson, robbery, burglary, transporting dope, and murder are all big time crimes that carry prison sentences.  If you get caught, it is bad for you, but you knew it could happen.  Getting a proffer letter is a lifeline, and you know that the bosses have also accepted the risk, and it is them or you.

This is different if you are at the scene of a dynamic seizure involving your fellow officers, and you are doing what you believe is a normal and not illegal act.  The risks you take as a law enforcement officer involve people who have weapons like knives and guns.  The risks involve hopped up druggies who feel no pain.  The risks involve driving at high speed, stopping people you don’t know in the middle of nowhere at night all by yourself.  The risks involve standing in traffic in rain beside a high speed lane or directing traffic with a flashlight in the middle of an intersection. 

Suddenly being told convincingly that you are subject to federal felonies involving obstructing justice, tampering with evidence, suborning perjury and depriving a man of his federal civil rights is no less devastating as a traumatic event than taking 12-pound sledge hammer between the eyes.  A traumatic event is defined as an occurrence of such intensity that it overwhelms a person’s normal ability to cope.  It is often sudden, shocking and involves death, serious injury, and emotions of intense fear, helplessness, or horror.  It may destroy or impair one’s sense that life is predictable.

This is not the risk you have been trained about.  You have been trained to see danger signals.  You know how to find cover when a crazed 15-year old girl fires at you when you arrest her boyfriend.  You wear a bullet-resistant vest so that you can go home at night when you miss danger signs.  You have been trained how to shoot and when you can do it.  You have been trained that to hesitate when your life or your partner’s life is in danger could mean that one of you dies.

Studies have shown that officers who die often do so because they under-reacted to the situation.  Those studies are Academy material, people!  In other words, officers are trained with these studies as part of the curriculum.  They did not exist 30 years ago when I was first trained.  However, when our training staff learned of the studies, they brought ALL of us in for in-service training, and the material is repeated periodically.  Is it possible that each and every Border Patrol officer has also been trained with similar material?  I would think that the US Government would be more than just a little bit remiss if they did not provide such definitive information to officers they value.

These officers found themselves subjected to a weapon they had never been trained to fight.  Every officer finds himself in some manner violating policy at one time or another.  Extreme violations can bring suspension, demotion, and dismissal, but most policy violations are made up of minor stuff.  Killing a rattlesnake, taking too long on a break, failing to file some paperwork, being late for work are all examples of things an officer can get in trouble for.  They don’t go to prison for these violations. 

Officers can lie to persuade a person to confess a crime.  Officers can lie to pretend there are more officers coming to help them to control a crowd, a domestic situation or prevent someone from resisting arrest.  Lying to protect yourself (“no I didn’t kill the rattlesnake”…, “my break was only ten minutes”…, “I’m sure I filed that affidavit”…, “I stopped to help a lady with a flat tire”…) is wrong, but most people at one time or another have protected their vanity (or more) with a lie of this type (including officers).  Every officer knows you cannot lie in court and on an affidavit.  They cannot hide exculpatory evidence.  They cannot lie in an official investigation.

However, if an officer thought he was in one of those minor things and tells some sort of a lie or omits something to someone who has asked him about it, he has a problem if he underestimates the seriousness of the situation.  If SA Sanchez asked a casual question of an officer and felt he caught the officer in a lie, he then had leverage to bring a felony against the officer.  If he asks questions of this type casually to several officers, he suddenly has a whole room full of potential witnesses who will eventually dance to the tune he plays.  SA Sanchez could lie to the officers even though they cannot lie to him.

Officers can have representation when being interviewed formally.  Officers who do not see the seriousness of a situation frequently do not bring representation or they waive it.  Fewer still ever bring lawyers until it is way late and only when they understand the seriousness – usually when it gets to a criminal phase.

Officers avoid bringing representation for a variety of reasons.  Often they believe they have done nothing wrong, and that the truth will come out.  They are quick to cooperate and will talk at length and be persuasive or offer tangible evidence (videotape, other witnesses, overlooked documentation).  Others believe the situation is not serious, the violation was minor, and these guys want to get it behind them.  They may have genuine remorse, are willing to take the consequences, and want to get back to work.  These are dedicated people and believe in the system.  Other officers do not want to anger their supervisors or the management team.  They may believe that to bring in representation may make it appear that they are trying to hide something and that management will look more critically at them and at the case, developing evidence that they would never look for otherwise.  (Many seasoned officers do NOT have this problem.)

These are not unreasonable beliefs.  Mature supervisors do not become angered when officers bring in their rep (although not all are mature).  I have frequently arranged representation for officers without even asking.  Some managers will become upset, however, if the officer has an actual lawyer “to interfere”.  In any internal investigation where investigators believe that the officer is stonewalling or lying, they will seek additional evidence regardless.  In a case where officers are candid from the beginning, the investigation is likely to be short, sweet, and to the point, getting the investigation behind them, and probably gaining respect from dedicated supervisors for the officer under investigation.

To suddenly be confronted with the possibility of doing time in a federal prison when a short time earlier you were just minding your own business is a heavy load for an officer.  Traumatic, as I said earlier.  The officer who is desperately in this situation is going to try to give his tormenter everything he wants.  Almost anything is preferable to being under the gun in this manner.  They are not going to go out on a limb for the officers who are the subjects of this investigation.  Their thinking will be clouded, perhaps biased.  These guys will not be happy that their fellow officers “put them in this situation”.  Nothing matters except that they do not want to go to prison.

Now then we have the immunity that was given to Aldrete.  According to the testimony by SA Sanchez, Aldrete would not cooperate in telling him what clinic he went to.  He wouldn’t help Sanchez find out who was threatening to retaliate against the officers.  He still got his immunity.

Aldrete told lies and changed his story when SA Sanchez began pressuring him.  His story changed from what it was when Rene Sanchez first started talking to him.  He refused to talk to Chris Sanchez and had to be persuaded to help.  He received treatment in an excellent US hospital courtesy of the US government.  He then told a self-serving story that put the Compean and Ramos in the worst light.

Aldrete got an I-94 to allow him to cross the border for meetings and treatment.  The I-94 was not for an unlimited time, but SA Sanchez renewed it several times.  Aldrete delivered a load of drugs to a safe house in El Paso between the time he reported he had been shot and the trial date.  Would you think that perhaps Aldrete was able to legally cross the border to deliver the drugs because he had a perfectly valid I-94 obtained from an officer of the Office of Homeland Security? 

He didn’t have a blanket immunity paper to allow him to drive marijuana to a safe house, but when the DEA wanted to file charges against Aldrete, and the same US Attorney refused to draw up charges citing a lack of evidence, would you think that a blanket immunity paper was not needed?  Of course having your star witness in jail for running drugs might also ruin your high-profile case in which you have a lot at stake and have made public statements about, wouldn’t it?

When Aldrete refused to name other people involved with him or in the plot against other agents, that should have been a sign to those issuing the immunity that Aldrete was testing them, as he indeed did.  No deal is any good unless you are willing to walk away from it (Salesmanship 101).  When Aldrete found they would not revoke the paper, he was suddenly free to say anything vaguely plausible as long as it supported the case against Compean and Ramos.  He had a “Get Out of Jail Free” card and could impress his bosses even though he lost one load, normally considered the cost of doing business by the professional transport groups (and they are professional groups).

A whole bunch fewer experienced agents on the border, two in jail, free health care, immunity for the load he was driving, immunity for assaulting Compean, immunity for fleeing, essentially immunity for obstructing justice, and no one tried to persuade him to rat out his organization gives him status in his community of druggies.  An I-94 to cross the border, no prosecution for the second load the government knows about, and now a $5 million lawsuit.  What a country!!

When Aldrete comes over to try to collect on his lawsuit maybe some local officers will catch him with one of his usual loads and prosecute his hide in the Texas courts.  One would hope he can’t get federal immunity in a real court.

One thing to watch in the Ramos Compean and Gilmer Hernandez cases is for any attempt on the part of the prison system to engage in “diesel therapy”. Diesel therapy is shuttling a prisoner from prison to prison as retaliation.

It was done in the case of this man who was vigerously objecting to sandbagging by federal investigators and prosecutors. This, again, is from the series of articles about the federal prosecutorial system entitled Win at all Cost.

Then being shuttled from prison to prison to prison — diesel therapy, prisoners call it — because, he says, he so aggressively has pressed his contention that federal agents and prosecutors sandbagged him.

In April, he was transferred from Miami to Atlanta; then to Oklahoma City; then to Leavenworth, a maximum security prison in Kansas, where many convicts with life sentences begin serving their time. Government rules say he should be allowed to stay in the prison closest to the court where his appeal was filed, until that appeal is decided. Hidalgo filed his appeal in Miami. He is 1,460 miles away.

The bureaucracy is most assuredly enraged at the public outcry on behalf of the Texas Three. It is not farfetched to believe that it will engage in the same retaliation against them.

I hope that the congressmen can keep enough pressure on the system to prevent such retaliaton.

I found a commentary/apologia for Sutton’s withholding of the DHS memo which seemed to indicate that the supervisors of Ramos Compean had knowledge about the disharge of weapons by Ramos and Compean. Sutton is quoted as follows:

For U.S. Attorney Johnny Sutton, whose office prosecuted the case against the Border Patrol agents, these types of challenges are to be expected.

“It’s not uncommon,” he told me, for defense attorneys to say, “They should have told us this, this is vital, this is Brady, this would have totally changed everything if I had this.”

But, Sutton contends, the material in question was provided to defense attorneys.

“To our knowledge,” he said, “the United States Attorney’s Office complied with all of its discovery obligations in this case. And I believe that we, in fact, on several occasions made that memo available to all defense counsel as well as a great deal of other information in the file.”

To that, I say prove it. We have already seen how Sutton gave Clintonian responses to questions about the detection of Aldrete-Davila’s October 2005 drug smuggling foray into the United States.

To Sutton, objections by defense attorneys regarding the withholding of exculpatory evidence are just ho hum and par for the course:

For U.S. Attorney Johnny Sutton, whose office prosecuted the case against the Border Patrol agents, these types of challenges are to be expected.

“It’s not uncommon,” he told me, for defense attorneys to say, “They should have told us this, this is vital, this is Brady, this would have totally changed everything if I had this.”

Perhaps so, but refer back to the article, Win at All Costs that I discussed in a post last night. Read this if you will:

Discovery is a cornerstone of American justice. It requires that federal prosecutors turn over to criminal defendants any evidence that might help prove the defendants’ innocence or that might show the biases or lack of credibility of witnesses against them.

The reason is simple, the Supreme Court has ruled: Withholding this information could result in an unjust verdict. Yet in its investigation, the Post-Gazette found hundreds of cases where prosecutors intentionally withheld discovery information.

This particular type of discovery violation is common. Frequently, defendants aren’t told that witnesses against them have committed crimes, including murder; or that they have lied in previous trials; or that they have received money or reduced prison sentences in exchange for their testimony.

But a discovery violation doesn’t guarantee a new trial. The Supreme Court has ruled that a verdict stands unless defense attorneys can show the information not made available at trial would have changed the outcome.

In Pogue’s first appeal, judges peppered attorneys with questions about the irregularities in the government’s conduct, but they let the verdict stand, without even issuing an opinion as to why.

Back to Sutton’s interview discussed above:

Besides, he argued, the memo in question doesn’t say what defense attorneys and their supporters claim it says. It reads that the investigation found “that the following BP agents were at the location of the shooting incident, assisted in destroying evidence of the shooting, and/or knew/heard about the shooting” and then includes on the list the names of two supervisors, Robert Arnold and Jonathan Richards.

“Maybe that’s an inartful way to put it,” Sutton said of the way the memo is phrased. “I was at the location of the shooting incident as well … months and months later, just as Arnold and Richards were at the location of the shooting incident after it was all over.”

He said all the evidence presented at trial—including Compean’s handwritten notes and the testimony of fellow agents—confirmed that the supervisors arrived at the scene after the fact.

Is that really for him to decide? Are we to assume that goverment witnesses and investigators and prosecutors never lie? Going back to the Pittsburgh-Post Gazette:

The net result is that the system encourages prosecutors to calculate just how much evidence they can withhold without risking a reversal. They substitute their judgment in determining what evidence is important rather than allowing a judge and jury to decide.

Apparently, Sutton and his ilk are a new generation of prosecutors:

It has not always been this way.

Gary Richardson, whom Reagan appointed U.S. Attorney for the Eastern District of Oklahoma, had an “open file” discovery policy in his office during his tenure, which ended in 1984. Defense lawyers were permitted to come in and look at anything prosecutors had collected on a particular case.

Now, Richardson is a defense attorney and says that “open file” discovery simply doesn’t happen any more, and he wonders why. “My attitude was that if you can’t take the truth and win, then you weren’t supposed to win,” he said.

Isn’t it time that Presidents appoint that kind of U.S. Attorney again?