Update here…

[A prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor – indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”

Berger vs. United States

Much has been made about Hillary Clinton’s rise to power because of her husband. She had no independent record of her own before her Senate record, so it goes. She wouldn’t even be in our collective conscious if she were not married to Bill Clinton.

As much as I dislike Sen. Clinton, I have to say that, achieving political power through marriage is really no different than cronyism. No one is better at cronyism than President G.W. Bush.

Look at what he recently said about Johnny Sutton when questioned about the prosecution of Ramos and Compean:

“Obviously I am interested in facts. I know the prosecutor very well, Johnny Sutton. He’s a dear friend of mine from Texas. He’s a fair guy. He is an even-handed guy.”

Beside the obvious internal conflicts in that statement, it is ridiculous. We don’t expect the President to treat those for whose actions he is ultimately responsible as “dear friends”, and we resent his condescending words which suggest to me that the president will take the word of his crony over the facts and the concerns of the People he is supposed to serve.

As seems to be Bush’s habit with his cronyism, about which Debbie Schlussel writes here (and many other places on her excellent blog) Bush’s cronies seem to have very little independent record to recommend them. for the jobs to which they are appointed.

Johnny Sutton has always made his living on the taxpayer dime. In other words, he has always worked in a world where influence is gained by sucking up to the powerful–rather than by being tested out in the world where merit is measured by different means. For instance, he was an Assistant D.A. in Harris County for eight years until he was plucked from the obscurity of that job to serve Bush in various capacities after that.

I wonder what other attorneys, who actually lived and practiced in the Western District and who were vying for the job of U.S. Attorney thought of being passed over in favor of this man who was plucked from an obscure B.S.-made up kind of position like “Criminal Justice Policy Director for then-Governor George W. Bush from 1995-2000, advising the Governor on all criminal justice issues, with specific oversight in the areas of criminal law, prison capacity and management, parole operations and legislative initiatives” and then placed in such a coveted position in the stead of some hard working attorney from the area.

I hardly think that his resume entitles him to the kind of arrogance he has recently displayed that Chuck Baldwin at VDARE writes of here. He points to the transcript of Sutton’s recent interview by Lou Dobbs. It is absolutely sickening to think that this man possesses such power because of his ride on the coattails of G.W. Bush. Here is the interview:

DOBBS: Johnny Sutton is the U.S. attorney for Western Texas. He led the prosecution of former Border Patrol agents Ramos and Compean. And, as we have been reporting here, Sutton faced tough questions today from members of the Senate Judiciary Committee.

U.S. Attorney Johnny Sutton joins me here now in Washington.

Good to have you with us.

SUTTON: Well, thanks for having me, Lou.

DOBBS: That could not have been an easy task for you today.

Let me turn to, first, the comments by Congressman Dana Rohrabacher, who referred to you in some strong words. He called you “an elitist, arrogant and overreaching prosecutor who put the rights of a drug smuggler before those of two hardworking Border Patrol Agents.”

How do you respond?

SUTTON: Well, it’s, you know, I — I — I don’t know what’s in his mind. I — I give him the benefit of the doubt that — that he truly believes that.

I’m sure he’s a good Congressman.

But with due respect to him, he’s — he’s very wrong on the facts of this case and he said a lot of things today that were just inaccurate.

And you know, this was a jury trial. I mean this wasn’t something that popped out of my head. This, you know, these — the two lawyers who tried this are veterans — 35-year veterans of the Department of Justice — their combined experience. And West Texas juries don’t do these kind of things just because some U.S. attorney says we want to convict some Border Patrol agents.

Chief Aguilar said today 144 agents in the last two years have used deadly force. Thirteen times they killed people. Not one of those Border Patrol agents was prosecuted.

DOBBS: What —

SUTTON: These are the only guys that were. So we —

DOBBS: Well —

SUTTON: This is a very rare thing for us to prosecute agents.

DOBBS: So — let — let’s go to some of the facts of this case.

SUTTON: Sure.

DOBBS: One of those facts — and you said it again today in Room 226 of the Dirksen Building. You said these agents shot an unarmed man in the back.

SUTTON: Right.

DOBBS: Well, that’s one version of the facts. But, also, it was controverted by their own testimony. And, in point of fact, the Army surgeon who withdrew the bullet did not declare that that would have been an inconsistent entry wound from a position that would have been assumed had he been firing a weapon.

So the agents have maintained throughout that they saw something in his hand which they thought was a gun.

SUTTON: Well, and that’s another piece of information that the jury heard that the American public hasn’t heard. The first we ever hear about a gun is one month after they shoot this guy. And that’s after they had been arrested. They didn’t tell their buddies (INAUDIBLE) —

DOBBS: How much longer after he had been shot did you arrest the agents?

SUTTON: About a month. It was about a month from the shooting —

DOBBS: So (INAUDIBLE) was contemporary?

SUTTON: — until when we arrested them. So — so what they —

DOBBS: So it would have been contemporaneous with that claim of defense?

SUTTON: No, no, no. They — they covered it up for a month. And it wasn’t until we arrested Compean that he ever mentioned anything about a gun. So what I’m saying is that as — as they’re conspiring with other agents — with another agent, as Compean is conspiring, picking up the shells, he never said a gun. He said the guy threw dirt in my eyes.

So I guess what I’m saying is the jury heard all that information —

DOBBS: Well —

SUTTON: — that said there was no gun. And there’s no reason in the world to cover this up if that guy had a gun. I mean —

DOBBS: When you say cover up, it’s interesting. There were a total of how many agents on the scene at various points during that first hour?

SUTTON: A whole bunch eventually got there —

DOBBS: There were a whole bunch, right.

SUTTON: — (INAUDIBLE).

DOBBS: Including two supervisors or three?

SUTTON: Two supervisors eventually showed up. The cover-up was only the agents who were right at the scene. And some of those agents just knew about the shooting and didn’t report it. You know, Agent Vazquez picked up the shell casings and destroyed evidence.

DOBBS: Well, let’s talk a little bit about this cover-up. Amongst the things covered up, they are required to report a high speed chase.

Did they do so?

SUTTON: I don’t know. I mean —

DOBBS: No, they did not.

SUTTON: I mean they certainly — they would radio in that they were in pursuit. DOBBS: Right.

SUTTON: So, I mean the supervisors were listening on the radio.

DOBBS: Right.

SUTTON: So they knew there was a — there was a pursuit going on at the time.

DOBBS: The other aspect of this is that — and it was brought up today — the prospect that there was a gun, or at least what could have reasonably been perceived to be a gun, and that is the possession of a cell phone.

There were two vehicles waiting for the drug smuggler, Aldrete- Davila, when he crossed the Rio Grande onto the Mexican side of the border.

I mean that wasn’t a coincidence, do you think?

SUTTON: I doubt it. I mean these —

DOBBS: So —

SUTTON: — I mean I would imagine —

DOBBS: — well, why would there not be the assumption, since no one found that second cell phone, that that could have possibly been something that would have been there?

SUTTON: Oh, that he had a cell phone and that’s what they thought was the gun?

DOBBS: Well, I mean it’s a possibility.

SUTTON: Sure, it’s a possibility.

DOBBS: I mean (INAUDIBLE) —

(more…)

The Gun Owners of America, along with others, have filed an Amicus brief in the case which can be found here. It focuses particularly on the Counts regarding the discharge of weapons–which were apparently wrongly articulated in the indictment and jury charge. The defense attorneys apparently didn’t bring up the points in this brief.

When I read it, I think that the errors brought up are very damning to the prosecutors. I see a Federal Judge whose criminal experience I wonder about–and I question how prepared on the legal points the defense attorneys were.

Although the charge to the jury is given by the Judge, it is written by the attorneys. They submit a proposed charge and instructions to the Judge. Then, the attorneys argue to the Judge about what should be submitted–using case law.

I also see missed opportunities on the part of the defense attorneys. I also see possible Nifong-like behavior on the part of the prosecutors. From the brief:

However, for the reasons set out below, the subsection which Ramos and Compean
are charged with violating — 18 U.S.C. section 924(c)(1)(A)(iii) — does not define
a crime, but contains only a sentencing factor to be addressed by the court after
conviction of a crime, the elements of which are set out in the first paragraph of 18
U.S.C. section 924(c)(1)(A). See Harris v. United States, 536 U.S. 545, 552 (2002).
Why the prosecution avoided using one or more of the Congressionally-fashioned
actus reus words of “use,” “carry” or “possess” a firearm contained in that first
paragraph — contrary to the Government’s normal practice in charging a Section
924(c)(1)(A) offense1 — choosing instead to substitute the sentencing factor
“discharge” of a firearm is not immediately apparent. However, as demonstrated
below, crafting the two counts in this peculiar way had the demonstrable effect of
misfocusing the defendants, counsel, and jury on a non-existent crime of unlawful
discharge of a firearm in a case where Defendants, both United States Border Patrol
Agents, were authorized to possess, carry and use a firearm in the normal course of
their employment.

It may not be immediately apparent why the charging was done in an erroneous manner, but I can speculate.

Going on:

In disregard of these definitive rulings, the prosecution in this case obtained
from the Grand Jury an indictment setting forth Counts Four and Five, which charged
Defendants with the crime of having “knowingly discharged a firearm … during and
in relation to a crime of violence….” Document No. 66, p. 3, 1R-119-126 (emphasis
added). Having misstated the crime defined by 18 U.S.C. Section 924(c)(1)(A),
Counts Four and Five failed to charge either Defendant with any criminal offense
whatsoever. See McGilberry, 480 F.3d at 329 and Barton, 257 F.3d at 443.

Whoops!

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

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.

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?

Jerome Corsi at WorldNet Daily has written a scathing commentary on the tactics used by the prosecutor in the Ramos Compean case. He focuses on the lies of Alderete-Davila in his testimony. Mr. Corsi opines that the presentation of such a witness by the prosecution approaches suborning perjury.

I am sure there are many attorneys and prosecutors out there to believe that Mr. Corsi has no business making such an accusation as he is not a lawyer. To me that is the height of arrogance. We as attorneys should be extremely concerned about how the justice system appears to those not employed by it. After all, we are admonished to avoid even the appearance of impropriety. We cannot condemn the public when the behavior of our own appears to others to be unjust, unfair and indecent.

There are numerous things about the Ramos Compean case, the Gilmer Hernandez case and the Gary Brugman case which concern me regarding the behavior of the prosecutors and investigators. Jerome Corsi touches upon one of those concerns, which is the unfair characterization of Aldrete-Davila as a mere naif in the drug trade. Moreover, it concerns me that the prosecution knew that this man was a liar before they put him on the stand. After all, the man lied about even the circumstances of his entry into the United States, as Mr. Corsi aptly points out in his commentary.

Is knowingly putting a liar on the stand a routine occurence for the U.S. Attorney in the Western District? Apparently so. Look at the letter written by Sheriff Letsinger to the Judge in the Gilmer Hernandez case which I posted last night:

We fail the system when we know a witness for the government has made false statements to investigators and we justify those statements as confusion and we do so for a conviction.

Furthermore, I have concerns about the possibility that the prosecutor has conflated policy or at law in an erroneous manner. This also does not seem to be unusual for this prosecutor. Again refer to Sheriff Letsinger’s letter:

We fail the system when we imply to the jury that policy is law. When we know that policy is only a guideline for operations.

What is the state of our federal prosecutorial system? This was addressed in a series of articles published in the Pittsburgh Post-Gazette in 1998 aptly entitled Win at All Costs. I was reminded about this article by William Anderson who is doing excellent work concerning the prosecutorial abuses committed by Michael Nifong.

This work is an extremely lengthy piece and I am only part way through it but one quote stood out to me as particularly appropriate in this context. It is a statement by a former US Attorney concerned about the level of integrity being demonstrated by federal prosecutors:

Thomas Dillard, who spent 14 years as an assistant U.S. attorney in Knoxville, Tenn., then four years as U.S. attorney for the Northern District of Florida, said a lack of real world experience among prosecutors also has hurt. “You’ve seen an increase in career prosecutors that you didn’t have 15 years ago, people who never practiced in the private sector,” he said. “They sit in this lofty tower with a rather skewed vision of the world. They are on a divine mission, and everything that gets in their way is evil. The ends justify the means.”

Johnny Sutton has never practiced in the private sector. He is the consummate career prosecutor.

Moreover, federal prosecutors have actually fought against being subject to state ethics requirements for attorneys.

Recently, a controversy has erupted over whether Justice Department lawyers are bound by state codes of ethics and analogous local federal court rules of practice. The issue stems from rules that restrict contact by lawyers with parties known to be represented by counsel, including corporate parties. In essence, the government is seeking to exempt its own lawyers from state and federal court ethical restraints in ways that would go far beyond issues of witness contact.33 Courts, thus far, have been unsympathetic to this government effort at unilateral exemption from the rules of ethics.34

And as Thomas Dillard points out:

“For it to get to the point where prosecutors honestly believe they are immune from state ethical standards, they honestly believe purchasing witness testimony at any cost is OK, and they honestly believe a grand jury is their own little forum, all of that is . . . bizarre.”

Furthermore, the article makes clear that when a prosecutor intimidates witnesses and the like, and is caught, there is no repercussion to that prosecutor:

Prosecutors promised a witness leniency if he would testify about the bribery scheme. Outside of the grand jury’s presence, a prosecutor questioned the witness about Moore’s knowledge of the scheme. Nineteen times during that intimidating session, the witness told the prosecutor that he had no idea if Moore knew about the bribery. The witness said he would not lie to satisfy the prosecutor’s demands. The prosecutor tore up the government’s non-prosecution agreement in his face.

The witness softened. His lawyer begged for another chance. So under careful questioning by the prosecutor before the grand jurors, the witness hedged enough to hint that Moore might be implicated in the scheme. Grand jurors never learned about the witness’s 19 emphatic denials.

The Justice Department’s Office of Professional Responsibility found no problem with the prosecutor’s conduct. The report of its investigation, kept secret, exonerated him of wrongdoing in 1991.

Read this article. The system is broken.

“The prosecutor is there to do justice, not to win. A prosecutor must possess a high level of integrity to overcome the desire to use such evidence in a way that misprepresents the defendant in an unfair manner.” This is an excellent statement that describes the ideal, and one hopes that prosecutors and our friends in the policing community always observe the standard.

We have to watch our self-righteousness sometimes as cops when we have observed the violation first hand. What I mean to say is that when we see it happen, we want the conviction. We have to be wary of embellishments in our testimony to make the offense more than it was or to make our evidence look better than it is. I think that it is something that professional witnesses (experts) must take care to avoid, and prosecutors must strive to eliminate bias.

Harry Beasley is very correct in his assessment of what policy is. A fairly firm guideline is what it is supposed to be with well-reasoned exceptions usually made by experienced and knowledgeable supervisors. I used to counsel officers that policy can be violated for cause, but not arbitrarily – “cause” meaning, absent a supervisor, you had better be able to justify it to me so that I can justify it to the Captain, a Major (or several), the Colonel and the public if need be. I also told them that they cannot violate state law, court orders and rulings and cannot violate someone’s civil rights.

There can be one other document regulating officers. Each state, agency and unit of the federal government may be set up differently. If there is a binding set of rules and regulations, the officers generally cannot violate those either. We did, and I warned them to obey them as in Ohio they are part of the Ohio Administrative Code. Of course as in many other things in life, there is the catch-all violation – “inefficiency”. However, that’s a whole new subject.

I just found a letter to the Court written by Sheriff Letsinger regarding Gilmer Hernandez. The letter seems to confirm Michael Hunter’s and Harry Beasley’s comments about policy not being law. Here it is:

“Your Honor,
I have served the enforcement of the law and the protection of the public for 25 years, 15 of them as an elected Sheriff. I have been cross-designated with the DEA. I was the Task Force Officer and case agent in the prosecution of a Conspiracy to Traffic Narcotics in violation of Federal Statutes. I fully understand the need to protect the rights of all individuals, especially the rights of the accused. I understand the need to defend the rule of law and the Constitution. I understand the need for 18 USC § 242, Deprivation of Rights Under Color of Law. I also understand the Doctrine of Self-defense from the use and threatened use of deadly force.

I have always believed that those of us that protect and defend the law are obligated to truth. The truth to disclose to a Jury or Grand Jury all the facts, all the evidence, the truth and the whole truth. We must do this even if the guilty are not indicted or found not guilty. Justice is only truly served with the truth.

I cannot begin to explain to anyone my dismay when I was informed of the guilty verdict handed down against Deputy Sheriff Guillermo F. Hernandez. I assure you that I became truly ill. I could have not been any more upset if the verdict had been passed on my own son.

My first thoughts were that the system that I have served for 25 years had failed. For about three days I was ashamed to be part of the law enforcement community that serves and protects the Constitution. Finally I remembered what I already knew. The Grand Jury did not fail, they indicted on the information they were given. The Jury did not fail, they convicted on the evidence presented. The Court did not fail the system. The Court does not control the investigation or the prosecution’s presentation of the facts.

I know that the system only fails when we (law enforcement officers and prosecutors) the protectors of the system fail the system by not disclosing to the jury the whole truth, all the facts and all the evidence. We fail the system when we imply to the jury wrong doing when there is none. When it is implied that evidence was not collected to protect an officer from prosecution. When we know that the policy requires another agency to collect that evidence and the prosecution knew the evidence was collected. We fail the system when we imply to the jury that policy is law. When we know that policy is only a guideline for operations. When we imply before a jury that evidence may have been tampered with. When those of us who know better know that it is a simple thing for the FBI to test a videotape to see if it has been erased or tampered with. We fail the system when an expert witness testifies with words like “There were four shots fired and maybe six.” When we posture before the jury with implications that we do not believe the integrity of a witness when we know the witness is honorable and truthful. We fail the system when we know a witness for the government has made false statements to investigators and we justify those statements as confusion and we do so for a conviction. We fail the system when we buy witnesses and purchase testimony at the expense of our Statutes.

Your Honor, no man should stand for judgement based on prosecution courtroom antics in the name of advocacy based on false statements and implied evidence. As God is my witness Deputy Hernandez is a good and honorable young man. Deputy Hernandez told the truth when he said the driver of the vehicle tried to run him over. Even the statement of Yvonne Hernandez-Morales supports Deputy Hernandez. “When the officer got to the drivers door the driver took off.” Deputy Hernandez and his wife could have told any story they wanted. Deputy Hernandez was shooting at the tires trying to stop a vehicle whose driver was evading arrest or detention. Deputy Hernandez had every right to arrest and detain the driver of the evading vehicle. Deputy Hernandez did not intentionally harm anyone. Deputy Hernandez is a good enough shot to have placed all the rounds in his weapon right through the back glass of the suburban.

Your Honor, I respectfully request that you sentence Guillermo Falcon Hernandez to time served and release him from custody.
Sincerely,
Don G. Letsinger,
Sheriff, Edwards County

This confirms to me that we need to look beyond trial transcripts and directly into the level of integrity held by the prosecutors and the investigators. This Sheriff sat through the trial and apparently saw what he believed to be “win at all costs” tactics employed by the prosecutors.

If his take is correct, may they burn in Hell.

I have some great commenters. Here is another comment from a LEO that I think needs to be highlighted. Perhaps Michael Hunter will comment on it from his LEO background and EricPWJohnson from his legal background. Eric appears to know more criminal law than I do.

Has the relationship between policy violations and law violations ever been properly addressed, defined or interpreted by Congress or the courts?

One cannot be criminally charged for a policy violation, and yet in this case policy violations were the very basis behind the criminal charges. That’s retarded!

A cop can make a bad shoot yet still be within policy, and they’ll be criminally charged; or a cop can make a good shoot yet violate policy, and they’ll be given a pass. I know; I’ve been given one in the past for a shooting I was involved in!

Policy is NOT LAW. It is guidance intended for various reasons, such as establishing practice, assuring quality control, or granting protections.

When policy gets in the way, it can be set aside. There are authorities and venues for it. There’s the old saying that goes, “There’s an exception to every policy.”

Consider the Ramos and Compean case if they had not violated policy, in that they got authorization for the pursuit and cut paper on the shooting. Would they have been criminally charged? For what? They’ve articulated their justification behind the shoot.

The bottom line is that these prosecutions being argued (Gary Brugman, Ramos & Compean, and Gilmer Hernandez) could never succeed without using the policy violations as their foundation. So where has that line ever been defined by Congress or the courts between using a policy violation versus a law violation to strip an officer of protections?

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This story makes sick to my stomach…

Back in the 1960′s, the F.B.I. withheld evidence from state authorities which would have exonerated four men of a gangland slaying. The men spent DECADES in prison.

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The Death House case happened under Johnny Sutton’s watch. The case involved the alleged mishandling of an informant who participated in the murder of several people and the near abduction of a DEA agent and his family in Juarez. In the latter instance, there was a failure to share information with the DEA, which caused the chief of the El Paso DEA’s office to write a blistering letter to his counterpart in I.C.E.:

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