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 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?

(more…)

Michael Hunter, a former state trooper who actually knows what it is like to be a law enforcement officer, and has investigated shootings committed by fellow officers wrote a great post here about policy versus reality and tradition. It is his position that officers often, with the tacit permission of supervisors, follow tradition over non-critical policy. Who can blame them when they are crushed under the weight of policies often created in knee jerk fashion as Michael points out:

Another problem with policy is that once you have it, you have it whether you really want it, or whether you like it and even if it isn’t needed. Lots of policy is written because some officer somewhere did something once that resulted in a one-time problem that someone never wants to see again, so we get another policy. One thing police leaders need to consider is that in today’s courts, judges seem to take policy very seriously, even if officers don’t.

If the prosecution knew this, yet chose to use the following of “tradition” over policy by Ramos and Compean to tar them in the jury’s eyes, I believe this is totally unfair. This is the sort of thing that should be tempered by prosecutorial discretion. 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. Do Kanof and Sutton possess this degree of integrity?

(more…)

(Administrator’s comment: Michael is a former state trooper who has investigated shootings by law enforcement officers)

There was an argument during pre-trial about allowing evidence of Border Patrol agents firing their weapons without making reports. They have a policy that requires them to notify a supervisor within one hour that they have fired the weapon whether on purpose or by accident and for any reason. The Court did not want to go into a lengthy exploration of officers firing their weapons. The prosecutor surely did not want the jury to see that others fired their weapons without reporting it and without getting into trouble.

The trouble with policy is that it does not always match reality, tradition, supervisory expectations and it is not always well-understood. Training can overcome lack of knowledge, make inroads into tradition, change the attitude and expectations of supervisors, and makes it better understood. Unfortunately, policy is not usually written in the field, but in a sterile atmosphere by well-meaning people who draw upon collective experience (and personal) and sometimes on the advice of attorneys (no offense intended). Policies change too, and officers have roll call or Read & Sign, but a lot gets lost in the translation when officers are thinking about what they are going to be doing during their shift as Sarge covers that point.

Another problem with policy is that once you have it, you have it whether you really want it, or whether you like it and even if it isn’t needed. Lots of policy is written because some officer somewhere did something once that resulted in a one-time problem that someone never wants to see again, so we get another policy. One thing police leaders need to consider is that in today’s courts, judges seem to take policy very seriously, even if officers don’t.

Tradition and attitude are hard to break. If traditionally every officer assigned somewhere meets at 11:45 am for lunch at The Corner, and if supervisors look the other way or join in – regardless of the policy that says officers are not to congregate – you are likely to find several official cars parked within a half block of The Corner around noon on a given day unless there is something going on. Whoa then to the new supervisor who comes in and tries to alter the tradition. The police manager who tries to do so will affect morale and have to deal with the problems he causes as long as he is there. I call it “knowing the code”. Small agencies have fewer problems, but a large decentralized agency has to live with bad rules. Local offices essentially rewrite a few policies (but not on paper) as long as they are trivial. Tradition sometimes goes away as times change and as new blood comes in, but not always.

Critical policy cannot be the same way. These are the policies that get people in trouble or hurt. Search and seizure, laws of arrest, pursuit policy, use of force are all among the critical policies. When local tradition is outside critical policy, you have a real problem. You can bet every critical policy has been reviewed by attorneys (and will be known by many defense attorneys). Critical policy must have field input as well. Critical policy must be reviewed frequently and understood by everyone.

In this case the prosecution wanted to show a “pattern” of the officers acting outside policy and ignoring the rules. If you get in trouble for being one of four congregating at The Corner, and you drive off the road and hit a mailbox (unsafe driving) and you use the F-word and get a complaint while handling an unruly crowd, when you violate policy and get taken to task for it in a court, you have “shown a pattern” of breaking the rules. This is presented to the jury as evidence that you are a bad actor and deserve to be convicted of what you have been accused of. What it is actually is evidence that you are a human being reacting to stresses, situations, and social ambiguity.

Also in this case the prosecutor did NOT want to show a “pattern” that Border Patrol officers discharge their firearms with some regularity without reporting it – and did not want to show that they do not get into trouble for it. I do not know the history well here, but you can bet the agents did.

Let’s look at it. The Border Patrol was formed years ago when policies and procedures were much more limited than they are today. Policy may have been limited, but tradition was building. Tradition was born of seat-of-the-pants work that comprised much of policing at one time and still plays a significant part of it today. Local policing and Border Patrol traditions were also based on local traditions. If locals, say, shot rattlesnakes on sight, it is likely that the local agents did so as well. I doubt anyone reported it either. I doubt that Border Patrol agents in Maine shot rattlesnakes, nor did the people in the ivory tower in Washington or at the training academy (if there was one back then). Policy however, was not written in El Paso. Guess where.

Policy about reporting discharge of firearms makes sense in a lot of ways. Officers are supposed to be in control of their weapons and ammunition. If they accidentally touch one off, training may be needed. Warning shots are pretty much taboo. Carelessness may call for discipline. If there is a discharge while holstering a second weapon, there may be a defective holster. Ammunition is expensive, and you account for it. Shooting it out with people usually generates enough excitement that everyone knows about it soon after it happens and notification goes without saying.

Is there a need to report the euthanizing of a crippled deer? Is it allowable to kill a snake? Do you report rounds fired at the range in practice?

The question is whether there is an unwritten tradition of firing shots at animals of some sort for practice and/or to rid the landscape of some of them (rats, snakes, rabbits, deer, stray dogs). If the agents do it, and if the supervisors do it, or if the supervisors turn a blind eye, then the policy is only being selectively enforced. If agents are used to firing in some circumstances without reporting it, and if supervisors know about it or do it as well, it has become a de facto policy (locally). If supervisors have been turning a blind eye while it is happening to maintain deniability, then the policy is a fraud, and they are enabling the violation dishonestly. It is a tradition that everyone knows is against the rules.

Special Agent Chris Sanchez came in from outside to investigate this. Chris Sanchez is not a Border Patrol agent and has never been one. He is from Homeland Security, Office of the Inspector General. I’ll bet that when he calls people, their blood runs cold. He does not know the local traditions, and he does not care. He is investigating employee misconduct. Violations of these rules are misconduct. A tradition that is against policy is not going to be talked about by the rank and file. No one else wants to be investigated. Supervisors who turned a blind eye will say that when an agent fires a weapon, the agent must report it within one hour. They can point to training that has been documented.

That’s the trouble with outsiders investigating inside. They don’t know the code. They have no empathy. It is all cut and dried. A policy was written for a purpose (not that the reason matters) and the policy has been violated. Agent violated the rules, case closed. Now with respect to SA Chris Sanchez, he has been well-trained and is expected to do a tough job. There is a lot more than an unreported shooting, so at this time I am not really going to get on his case.

It is the Prosecutor’s case I am on. If there is a pattern of officers shooting without reporting it, if guys start doing things out of habit, if supervisors were at the scene, it is understood there was a shooting. The supervisors did not report it and it was their call. Any discipline for not reporting the shooting should have been on them. Discipline starts at the top. Failure to report a shooting should not have been used to show a pattern of misconduct by the officer when there was a pattern that the agents did it normally when they felt that it didn’t count. Unfortunately it counted here.

Michael Hunter is a former State Trooper who has investigated shootings involving law enforcement. He has commented on this blog here and here.

He has graciously accepted my invitation to blog about the Ramos Compean case as he is also going through the transcripts. I believe that his experience will add a dimension that not even the really good attorneys and others commenting at Patterico can possibly contribute. We are lawyers looking at words on the page to see if the prosecution made a case. Michael has been out in the field and can add context to the words.

I look forward to his input.

Go here to listen to it and here are the lyrics.

When I listen to it, I feel like I’m back in the 60′s.

Michael Hunter had some great commments about the Ramos Compean case here at this site. He has made another excellent comment at Patterico’s place. I am going to post it here because it gives us good insight into why Ramos and Compean may not have talked too much after the shoot and how OAD could have kept running after the shooting.

Gunshots do not necessarily hinder a man pumped on adrenaline from functioning unless nerves are severed, major bones broken (legs), vitals are struck or if there is major muscle damage. A hit in the buttocks that does damage to the urethra would not necessarily be painful (at the moment), although it is likely that he would feel it big time later. A number of our people (a highway patrol agancy) have been involved in shootings and were amazed by the ability of fatally injured assailants to continue to function and fight or run and a few others by their own ability, not even realizing they had been hit until moments later.

As to talking among themselves after a shoot out, it is very likely that the involved were silent as it is a very emotionally draining experience. As the adrenaline wears off and the officers ratchet their emotions back down they will experience fatigue. Adrenaline is known to be toxic if not totally burned off. Studies of people involved in post stress trauma note that emotions can include anger that they were involved, anger at the assailant for forcing the issue, anger at partners for getting them into the situation or not preventing it, anger at themselves for not preventing the shooting, and probably in this case embarrassment and self-reproach for an inability to stop the assailant (OAD). They may also experience relief that they are not hurt and that they did not seriously hurt the assailant and trepidation at what the supervisors and administration were going to think and do. These are all “normal” emotions. If he felt threatened and other officers did not join in assisting him, he would be unhappy with them as well. (They would probably get the silent treatment for that.)

If Compean thought he was directly threatened as he maintains, the experience is very personal and overwhelming and there have been many recorded instances of officers believing that they were going to die – and accepting it rather than fighting back. In the 1980s when this became known, training was altered all over the US so that officers were taught not to give up even if they thought they were fatally injured (as they might be wrong) and fewer officers just laid down and died. The fact that he was not shot and no one found a weapon does not alter this. It is likely that the two officers just checked to see if each other was okay or possibly a quick thanks from Compean to Ramos for being there for him.

Part of post stress trauma has to do with the way people are brought up, although not all people (including officers) experience it. Officer believe they are the good guys. If they have been brought up in the church, there is a commandment “Thou Shalt Not Kill”, which can be a conflict with officers (me included). Being in a situation where he has taken a life, seriously injured someone or used deadly force imposes a sudden conflict. Guys susceptible to this fool themselves until the moment after this happens. I always said that in that situation, it was the other guy’s choice, but after a man I was pursuing nearly killed himself, I was essentially a basket case – unable to properly function at the scene in my job. Only when I found he was not hurt badly was I able to come down from that – and not immediately either. After a shooting, many agencies require a visit to mental health professionals, including ours. One friend of mine in another agency (Don Roberts, Toledo, Ohio) committed suicide after a righteous fatal shooting in which he probably saved his partner’s life.

Compean may have also doubted himself after the incident. If he thought initially that there was a weapon (which would mean to him that he was about to be shot), he was justified in defending himself and knew it. Later when he had not been shot at, he may have wondered if he saw what he thought he saw or if he had been “seeing things”, in other words, he may have thought he made a mistake. That alone could bring dread to him – and a lot of quiet.

Comment by Michael Hunter — 2/23/2007 @ 9:43 pm

Scroll down and read another exchange between Michael and other commenters at the site. The attorneys and others at Patterico’s are doing a great job of analyzing the transcripts–though I don’t agree with all of their conclusions at this point.

I’ve been skipping around the trial transcripts. I just re-read Ramos’s testimony and noticed something interesting in the cross examination by Kanof beginning on page 46. It has to do with perceptions. You will note that a good part of the governments approach was to discredit the testimony by Compean and Ramos that they thought OAD turned back and pointed a gun at them. They did this by eliciting testimony that, during other parts of the incident, Ramos and Compean and Juarez did not see a gun in OAD’s hand. As I’ve discussed in another post, Juarez was not in a position to see OAD during all points of the chase on the vega side of the levee. Also, much was made of the fact that OAD was right-handed, as if the agents were supposed to discern that at the time.

However, then it came to OAD, Kanof seems to excuse OAD’s misperceptions. OAD testified that he saw other agents besides Compean pointing guns at him when he was in the ditch. However, Ramos testified that, although he had unholstered his gun at that point, he was not pointing it at OAD, but rather was holding it in “ready pistol position”. Here is where it gets interesting:

Q. So when Osvalde testified that he turned around and he saw several agents pointing a gun, he must have been right, correct?

A. I guess so.

Q. You were one of them?

A. I didn’t say that I was pointing my gun at him.

Q. Well, I thought you said that, when you get out–yesterday, in testimony, you said when you got out you drew your gun.

A. I drew my gun.

Q. Oh. You drew your gun, and you just left it by your side?

A. No, ma’am. I had it in a ready pistol position.

Q. Okay.

A. Just right here (indicating).

Q. So you’re standing at the edge. You have it in the ready pistol position, you’re watching the guy?

A. Yes, ma’am.

Q. Okay. Well, if Mr. Aldrete-Davila saw you like that, don’t you think he might have thought you were pointing your gun at him?

(emphasis added)

So, OAD’s misperceptions under the circumstances are understandable and excusable–but Ramos’s perception about the possible gun is not?

You know what I wish? I wish that Ramos had answered like this: “Yes, he might have thought that–just like I thought he pointed a gun at me.”

I posted about Gary Brugman here and here. I quoted the prosecutor who encountered Brugman during the trial and allegedly said:

“It’s not a matter of IF you’re going to prison, it’s a matter of how long you’re going to prison for. I have a $50,000,000 budget to make sure you’re going.”

Now NewsMax is covering the story.

Federal Prosecutors have great power. Unlike local D.A.’s, they are not elected and they cover vast areas of jurisdiction (at least here in Texas) We can vote local D.A.’s out of office if they abuse their office, fail to control their assistants or behave with arrogance. Their power is constrained by our vote.

Not so with Federal Prosecutors. Their power is awesome, and we all know the adage that “power corrupts”. U.S. Attorney General Robert H. Jackson wrote a speech about it and said this:

The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.

There are some Federal prosecutors who adhere to this with great diligence. I have had the pleasure of dealing with one of those in my career. She chose not to indict my client because, though she knew that she could make a technical, civil violation iinto a criminal case under our present Medicaid/Medicare laws, she knew that my client had no mens rea.

There are some, whose focus is only to win–which is misguided according to AG Jackson:

Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just. Although the government technically loses its case, it has really won if justice has been done. The lawyer in public office is justified in seeking to leave behind him a good record. But he must remember that his most alert and severe, but just, judges will be the members of his own profession, and that lawyers rest their good opinion of each other not merely on results accomplished but on the quality of the performance. Reputation has been called “the shadow cast by one’s daily life.” Any prosecutor who risks his day-to-day professional name for fair dealing to build up statistics of success has a perverted sense of practical values, as well as defects of character.

(emphasis added)

It appears to me that we have some Federal Prosecutors who care overmuch about statistics. This article about Debra Kanof raises suspicions in my mind about her focus. The story of Gary Brugman raises other questions about Sutton, Bauman and Bauman’s assistant and their focus.

Arrogance and condescension are disgusting traits and should be avoided by all lawyers. These traits are especially disturbing when found in Federal Prosecutors due to their great power. A Federal Prosecutor who can’t find it in himself to be courteous to those who disagree with him and choose to debate him have little business holding the lives of others in their hands.

I have noticed comments about Compean putting a new magazine in his gun during the incident. I wondered about that and asked Michael Hunter, a former State Trooper, who had this great comment a couple of days ago to explain what this meant. With his permission, I am posting his email here:

It is called a “tactical reload”. Some years after I joined, the Highway Patrol taught us this tactic as there is a lot of evidence that officers do not know how many shots they fire in dynamic situations. In fact they try to get us to mentally count as we fire on the range or in simulation, but they know that even as realistic as they try to make training, it is not the same as being under fire.

A classmate (Tom G.) in 1975 or 6 was in a situation where he had already been badly injured with a man on top of him and was in serious danger of dying when he found his revolver and fired it against the chest of his assailant. They found 2 marks on the primer of the first cartidge in his 6-shot revolver. In other words he pulled the trigger 7 times and only quit when it did not fire again.

Later, with this training, Angela W. was shot in the chest by an assailant with a .44 magnum but survived thanks to her vest and instantly returned fire. She did a reload when she thought she ran out of ammo (13 rounds, if I remember correctly in a .40 cal Beretta) and was later found to have ejected a magazine with live rounds. She may have had a jam, but the point was she had no idea how many times she fired. For awhile we were trained to do a specific scenario where, after a number of rounds were fired, we did a tactical reload and retained the other magazine to use later if we totally ran out.

The thinking was that in a dynamic situation we would revert to training, and if we had a second round face-off with an armed assailant, we would be doing it with a fully loaded weapon. Whoa to the guy who counts the officer’s rounds and gets bold! They documented at least one shooting where an officer did this, but I no longer recall the circumstances or the results.

My impression of the situation, after receiving this background, is that the insertion of the new magazine is not indicative of wrongdoing–but an instinctive following of training. Is it possible that the prosecutor was wrongfully conflating an instinctive reaction grounded in training with a nefarious act? Perhaps Michael will comment further.

I also asked him how long it takes to get shots off. He replied:

It takes very little time to fire off 10 rounds. My weapon is a Sig Sauer P-226 .40 caliber semi-auto handgun. It is double action (never cocked, always the same trigger pressure, no safety). If I just shoot it, I can fire 10 times in about 4 seconds. If I am taking time to point and shoot, the time will go up, and if I am trying to get a sight alignment, the time will increase more due to recoil and having to realign.

Four seconds. What does that tell us about the sequence of events?

When God commanded that we put no other god before him, he did not confine this Commandment to the worship of statues. He was telling us that we should put nothing above Him and his law. We may not prostrate ourselves before the statutes of golden calves, but we routinely bow down to human institutions and place human laws above God’s laws.

It is my opinion that we elevate our system of justice to such a degree as to be idolatry. We ignore the fact that it is a human institution which has real human failings.

Therefore, as the blogosphere continues to discuss thetrial transcripts and convictions of Ramos and Compean, we find some saying such things as — “they were convicted by unanimous vote of the jury”–suggesting that the vote of a jury is sacrosanct and irrefutably the truth. We see others, especially lawyers, examining every misstep and conflict in testimony of Compean and Ramos as if failing to remember perfectly–or remembering differently from each other is proof of guilt–with no consideration of the high stress circumstances of the incident. Of course, if their stories matched perfectly, some would be calling that a “set up”.

We hold Ramos and Compean to a standard of near perfection, while excusing a system which condones bestowing “favors” on witnesses and coercing witnesses with threats of prosecution when their stories do not find favor with the prosecutor. We stand mute when the Federal leviathan swoops down and disregards the findings of the respected Texas Rangers in order to prosecute a Deputy for reasons more political than just. We watch in horror when a District Attorney cuts a “wide swath in the law” in order to prosecute innocent men for personal gain, committing the bearing of false witness, intimidation of witnesses and defying facts that were before his face.

We react with confusion as prosecutors transform civil or administrative infractions in to crimes. We realize that we have lost control when we observe prosecutors piling on charge after charge after charge for the same facts in order to enhance punishment for acts that have not hurt, killed or caused a loss of anything of value to any person or institution.

Whereas, at one time, those who bore false witness in judicial proceedings were condemned to the same sentence that would have been pronounced on their victims, we now find apologists for the liars. Those who wrongfully convict men by hiding exculpatory evidence continue in their professions–despite the fact that their withholding of exculpatory evidence would have resulted in a death had it not been detected. Judges allow testimony bought through the shameful practice of “jumping the bus”.

Our jurisprudence came from Blackstone’s Common Law–which expressly based itself on God’s law–transcendant law. It has now descended into the law of Jeremy Bentham, a man who believed in rounding up people before they committed crimes, in torture for extracting confessions and that defendant’s lawyers have the duty to aid the prosecution. With the rise of Benthamite influences, has come the decline of the principles embodied in the Rights of Englishmen–and the increase of wrongful prosecutions and convictions.

Blackstone’s Rights of the Englishmen preserved the personal nature of justice–law is a shield which protects the individual. With Bentham came collectivism–law is a sword to be wielded in the service of the greater good. There is nothing personal about it, it is “might makes right”, a steamroller, “a blind, impersonal, and mechanically operative force”. It encourages prosecutors to concentrate on notches in their belts rather than justice.

It is embodied in the following statement, allegedly made by an Assistant United States Attorney to Gary Brugman in an encounter when Brugman was without his lawyer:

“It’s not a matter of IF you’re going to prison, it’s a matter of how long you’re going to prison for. I have a $50,000,000 budget to make sure you’re going.”

(From American Freedom Riders)

I’m going to continue looking at the trial transcripts–but I am not going to rely only on legalistic analysis, I am going to find others who have knowledge about law enforcement and other areas who may be able to detect whether the government’s case was created from clever lawyer wordsmithing–or reality. You must consider that the government was advancing a particular worldview of how the Border Patrol was to operate. The goverment held all the cards in that particular endeavor—because it controlled all the witnesses available to explain how things work. Is the paperwork insufficient–that’s indicative of a coverup. Is a BP agent supposed to capture dealers–or just push them back over the border?

I’m going to start with my next post.

One point the prosecution in the Compean Ramos case made over and over again with various witnesses, is that Agent Richards, one of the supervisors who went to the scene, is a stickler about paperwork. Thus, he would not have blown off making a report about the assault on Compean or the discharge of the firearms. had he known about them.

However, I invite you all to go to this volume of the transcript to the cross-examination of Agent Richards by Stephen Peters, one of the attorneys for Ramos. Specifically look at the testimony beginning on page 244. Peters goes through the pursuit policy with Richards and establishes that the agents were in pursuit mode. It is clear that Richards knew about the pursuit as it was in progress. In fact, he went out to see what was happening when the radio was quiet for a while.

Then, an interesting line of questioning begins on page 253. There you will find an admission by Agent Richards that the supervisors of agents involved in a pursuit must file a report outlining the details of that pursuit. Agent Richards admits that he did not file such a report.

Q. And it’s also part of the policy that, whenever there is a pursuit, that the supervisor of the agents initiating a pursuit has to prepare a report outlining the details of the pursuit?

A. That’s correct.

Q. Do you know whethter such a report was prepared in this case?

A. No, sir, there was not.

On page 254, he acknowledges that ultimate responsibility for the report fell on him.

Q. Who would have been responsible for filing a pursuit report if the supervisors had been notified of a pursuit?

A. The agent and the supervisor.

Q. Okay. And who was the supervisor?

A. It would have been Robert Arnold or myself.

Q. Okay. So how would it–how would it be determined whether it was you or Robert Arnold who was responsible for filing that report?

A. I would have either assigned him the task or I would have done it myself.

Q. So, ultimately, it was your responsibility, or would have been your responsibility?

A. That’s correct, as well as the supervisor.

This certainly undercuts the prosecution’s theory that Richards would never encourage or condone shirking paperwork–even if it was at the end of a shift. It gives credence to Agents Compean and Ramos’s perceptions that Richards was discouraging the reporting of an assault on Compean by OAD. In my experience, employees often sense what their supervisors don’t want pushed and act accordingly. I got the impression that is what Compean was doing when he backed off on the assault issue.

Could it also explain the lack of clarity about why no formal report was filed regarding the discharge of Compean’s and Ramos’s weapons?

Jerome Corsi at WND is reporting another major development in the Ramos Compean case. It has now been confirmed that Aldrete-Davila was identified as being involved in another drug smuggling incident after the one that occured in February of 2005. As the story makes clear, the judge in the Ramos Compean case sealed the evidence and issued a gag order preventing the families and attorneys from discussing this.

This may be grounds for an appeal given the 5th Circuit’s decision in the Sipe case. In that case, the prosecution withheld evidence from the defense, as I discussed here, about an incident where the illegal who had been injured, Guevara, was caught–after the incident for which Sipe was indicted and before the trial– illegally transporting illegals. He was not detained or arrested. He was, in fact, released due to intervention by a Border Patrol Agent related to Guevara’s drug trafficking boss.

The trial court believed that this evidence, along with other evidence, was exculpatory because it reflected on the crediblity of the accuser, since he was a transporter and not the innocent mere illegal coming across to do lawn work, and it showed the extent of the benefits given by the government to the accused for his testimony. The 5th Circuit, in its decision, expressed concern for the the withholding of several pieces of evidence concerning the extent of the benefits given Guevara, apparently, including the “get out of jail free” pass given Guevara. This was especially compelling because Guevara kept changing his story as the benefits to him multiplied. Thus, the 5th circuit affirmed the trial court’s decision to grant Sipe a new trial.

This may or may not help Ramos and Compean on appeal. But, it is a very interesting parallel to the Sipes case.