Court of Appeals Affirms Sentence of Border Patrol Agents

This week the Fifth Circuit Court of Appeals affirmed the conviction of two men prosecuted for shooting at an unarmed man who was running away from them and then concealed evidence concerning the shooting. There is a twist however. The defendants were Border Patrol agents and the victim was a Mexican drug smuggler. This ruling will surely add to the outrage of conservative activists who can’t understand why federal agents were prosecuted for shooting a drug smuggler in the buttocks.

The unanimous ruling by three Republican appointees to the United States Court of Appeals makes it look pretty straightforward.

The Court said:

"The jury was the fact-finder. The jury heard all of the evidence. The jury returned the verdict. The jury did not believe the Border Patrol agents. It convicted them. The government’s evidence, if believed, is sufficient to uphold the convictions. And that is pretty close to the bottom line on guilt or innocence of these agents."

However, this case touches a lot of hot buttons. There are federal agents prosecuted for their actions in trying to apprehend a drug smuggler. The drug smuggler was given immunity and allowed to come to the United States to testify against the agents. After that, he was caught smuggling drugs again. The Mexican government allegedly intervened to cause the prosecution. The agents received long sentences because of a federal statute which penalizes use of a firearm in a felony. To some, this is a case where a federal bureaucrat chose to punish law enforcement agents for just doing their jobs and to reward a foreign drug smuggler. However, the case is really about applying the law even when it is unpopular.

It Started Out With A Car Chase on February 17, 2005

Osvaldo Aldrete-Davila was a drug smuggler, but not a very lucky one. On February 17, 2005, he crossed the Rio Grande and climbed into a van filled with marijuana. Sensors alerted the Border Patrol to his presence and within minutes, agents gave chase. The smuggler tried to escape to Mexico, but got the van stuck in a ditch. He then got out and tried to run away when he was confronted by Border Patrol agent Jose Alonso Compean. Here the stories diverge. Compean claimed that he used his shotgun to push Davila back and lost his footing in the process. However, another Border Patrol agent testified that the suspect was standing with his hands raised when Compean took a swing at him with the stock of the shotgun. When the blow didn’t connect, the agent lost his balance and fell down. The smuggler didn’t need any more of an invitation to take off. As he ran toward the border, Agent Compean pulled out his revolver, emptied the magazine at him, reloaded and started firing again. Another agent, Ignacio Ramos, came on to the scene and fired one shot at the fleeing suspect. Despite being shot in the buttocks, the smuggler made it across the river.

At this point, the agents should have reported the shooting to their superiors. Instead, they picked up the shell casings, threw them in the river, smoothed over the sand and left.

A lot of controversy could have been avoided if the story had ended here. However, due to an unusual coincidence, the drug smuggler happened to be an acquaintance of another Border Patrol agent and mentioned his pain in the rear. The agent did some checking and was surprised to find out that no shooting incident had been reported. He then received permission from his superiors to investigate further. As it turned out, the slug was still buried in the suspect’s posterior. This posed a practical problem. The only way to figure out who shot the smuggler was to examine the slug. However, a drug smuggler who had been shot trying to evade the Border Patrol was unlikely to volunteer to come to the United States to have it extracted. As a result, a deal was cut for Sr. Aldrete-Davila to receive immunity if he would come across the border and testify. Examination of the slug led to Agent Compean. Further investigation uncovered the cover-up and charges were filed.

At this point, a few observations are in order. Up to the point where charges were filed, everyone involved was Mexican or Mexican-American. The drug smuggler was obviously Mexican. All six of the law enforcement agents involved were Hispanic. Therefore, this was not a case with any racial or ethnic overtones because everyone had the same background.

The prosecutor who filed the charges, U.S. Attorney Johnny Sutton, was no raging liberal. He was a Republican appointee and friend of President Bush. However, he came to be pilloried as a threat to national security.

The Trial

At trial, the agents claimed that Aldrete-Davila had something in his hand and was a threat to them. The jury apparently did not believe this story and voted to convict. The sentences imposed were harsh: 12 years for Agent Compean and 11 years for Agent Ramos. However, as the Fifth Circuit noted in its opinion, the sentences were virtually mandated by act of Congress.

“(W)e should note that the rather lengthy sentences imposed on the defendants—eleven years and a day and twelve years respectively—result primarily from their convictions under Sec. 924(c). Why? Because Congress directed a mandatory minimum sentence of ten years for all defendants convicted under this statute, i.e., using a gun in relation to the commission of a crime of violence. The underlying crime of violence with which the defendants were charged is assault within the special territorial jurisdiction of the United States. Once the defendants were charged by the government and convicted by the jury under the statute, the district court had no discretion but to impose at least a ten-year sentence.”

The Reaction

At this point all heck broke loose. Congressmen held hearings and made statements. According to published reports, U.S. Rep. Dana Rohrabacher claimed that the U.S. Attorney showed an “alarming pattern” of defending the rights of illegal immigrants over those of U.S. law enforcement officers. Twenty-one U.S. Representatives wrote to the White House and complained that:

“The extremely harsh prison sentences they received are unjustified in this case, and their prosecution and prison sentences have been demoralizing to other Border Patrol agents, which has undoubtedly harmed the security of our nation by causing Border Patrol agents to hesitate before using their weapons in defense of our borders against criminals and terrorists.”

CNN Commentator Lou Dobbs claimed that, “Sutton’s decision to prosecute the agents, to file attempted murder charges against them and seek harsh mandatory sentences was simply an outrage.”

The Los Angeles Times reported that:

“The case has become a cause célèbre among anti-immigration activists and advocates of stronger border security, who argue that it epitomizes the misplaced priorities of federal prosecutors as well as the absurd predicament of Border Patrol agents who must fight heavily armed criminals while using little or no force. Among the rules broken by the agents, supporters say, was a policy forbidding agents from giving chase.”

The story got even weirder when Don Swarthout, a Kentucky pastor and president of Christians Reviving America's Values filed an ethics complaint with the Texas State Bar against U.S. Attorney Johnny Sutton.    A statement released by the group alleged that the prosecutor "willfully misled the jury in order to convict Border Patrol Agents Ignacio Ramos and Jose Compean."     The pastor stated:

"This whole case stinks to the highest parts of heaven.  How is it possible in America to convict two border agents for simply doing their jobs and send them to prison for 11 and 12 years? How is it possible for Johnny Sutton's office to ruin the lives of two of our border agents based on the word of a known Mexican drug smuggler? Why did Johnny Sutton's office twist the facts of this case and hide evidence simply to get a conviction?"

The anger here is palpable.   However, the pastor like many other commenters seems to assume that shooting at an unarmed suspect who is running away constitutes "simply doing their jobs."    

Sens. John Cornyn and Diane Feinstein seemed positively reserved when they suggested that President Bush grant clemency for the agents.   Apparently the White House has not considered clemency because the agents have not asked for it.

The U.S. Attorney’s Office felt compelled to release a statement entitled “Response of the Government to Reporting Inaccuracies Regarding the Compean and Ramos Prosecution.” The final paragraph stated:

“Based on all of the evidence admitted during the two-week trial, including the lengthy testimony of both of the defendants, the jury of twelve citizens heard all of the testimony, judged the demeanor and credibility of the witnesses and unanimously found both defendants guilty beyond a reasonable doubt of eleven of the twelve counts alleged in the indictment, including assault with a dangerous weapon, assault with serious bodily injury, discharge of a firearm during the commission of a crime of violence and willfully violating Aldrete-Davila’s constitutional Fourth Amendment right to be free from illegal seizure, as well as obstructing justice by intentionally defacing the crime scene, lying about the incident, and failing to report the truth.”

What It Means

This is a case where application of the law is unpopular. The outraged parties claim that law enforcement is under siege from heavily armed terrorists and criminals. However, what was really involved here was the shooting of an unarmed suspect who ran away after an agent tried to club him with his shotgun. The conventional wisdom may say that it is okay to shoot a fleeing suspect, but the law as announced by the three Republican appointees on the Court of Appeals is:

“It is well established that the Fourth Amendment to the United States Constitution does not permit officers to shoot a fleeing suspect unless the suspect poses a threat to the physical safety of the officers or to the public”

For a public raised on Dirty Harry, this may seem outrageous. However, the same law that allows a drug smuggler to escape to Mexico, prevents the police from shooting an innocent bystander who made the bad choice to run away from a crime scene.

The sentences in this case were harsh. However, that is what Congress mandated. The Court of Appeals correctly found that the statute did not contain an exception for law enforcement personnel in the course of their duties and had been applied in other cases where law enforcement illegally discharged a firearm. If Congress wants an exception for law enforcement, they should write it into the statute rather than insisting that judges do their work for them.

At the end of the day, Sens. Feinstein and Cornyn may have the more sensible position. The sentence is legally correct, but harsh. If President Bush could commute the sentence of Scooter Libby, he could commute the sentences of these agents as well.  They have already served enough time to realize the seriousness of their actions.  Clemency exists to end a prison sentence where there are extenuating circumstances surrounding an otherwise legal verdict.   The irony here is that the very Congressmen who are screaming about the outrage wrote the law that led to the long sentence.   While they may not have anticipated this result, it is their job to write the law.  This might be a good case for the President to use his clemency powers. That would be a lot more honest than claiming that the Republican prosecutor, the Republican trial judge and the three Republican court of appeals judges did something wrong.

Getting Enough Exercise?

Like many middle-aged lawyers, I weigh more than I should. I try to exercise and eat right but don't always succeed. I remember hearing sometime back that you should exercise for 30 minutes three times per week to be in good health. However, now a study in the Journal of Internal Medicine has raised the bar. According to the study, in order to lose weight and keep it off, you should exercise 50 to 60 minutes a day, five times a week. That adds up to 275 minutes a week of exercise.

I am able to do the most exercising during the summer when I don't have to worry about soccer practice or the kids' homework. In a perfect week, I will spend 33 minutes on the eliptical trainer at the gym five days a week, work out with a trainer for an hour twice a week and run on the treadmill for an hour once a week. That adds up to 345 minutes of exercise a week. How often do I have a perfect week? Never. If I am at the office till 1:00 a.m., it is very unlikely that I will get up at 6:30 a.m. to go to the gym. If I am having to deal with computer problems that come up late in the afternoon, I may have to cancel my training session.

During the school year, things get worse. In order to get to the gym and get my daughter to school, I have to be up by 5:55 a.m. A lot of days, the extra 30 minutes of sleep is the only thing that keeps me going. During soccer season, I only train once a week so that I can help with my other daughter's soccer practice on Thursday nights. During some weeks, the only exercise I get is one training session a week and the time that I spend refereeing on the weekend (which involves a lot of short bursts of activity rather than sustained exercise).

However, it gets worse. According to another study that I read, the less sleep you get, the harder it is to lose weight. Thus, if the only way you can find the time to exercise enough is to cut back on sleep, then the two forces counteract each other. It seems like the only way to get enough exercise and enough sleep is to have a non-stressful job and no child-related responsibilities.

Welcome to My International Readers

This is one of the more obscure corners of the blogosphere. On a good day, about ten people read this blog (mostly members of my family). However, one of the interesting things about Google is that they let you track where your readers are coming from and what they are reading. In the past month, I have had readers from Canada, Australia, the UK, Ghana, Colombia, Germany, Slovenia and Morocco. I am glad that you stopped by this blog and hope that you find it interesting. Please feel free to leave a comment and say G'Day or Guten Tag or Buenos Dias or whatever works for you.

Death of a Bad Man

I took the family to see Batman: The Dark Knight yesterday. This is a dark, disturbing movie. The movie cheats its way into a PG-13 rating by omitting the profanity and leaving much of the graphic violence to the imagination. However, on a psychological level, the terror and depravity is on a par with Silence of the Lambs. One aspect of the movie involved killing public officials who stood up to organized crime. Today’s paper contained a reminder of an incident where this actually occurred.

On May 29, 1979, U.S. District Judge John Wood, Jr. was assassinated as he was about to preside over the trial of El Paso drug kingpin Jimmy Chagra. There was also an unsuccessful plot to kill the prosecutor in the case as well. The hit man, Charles Harrelson, was caught and later died in prison. Jimmy Chagra was acquitted of most of the charges brought against him. However, the fact that his wife was convicted for delivering the payoff to the gunman should leave no doubt that he was behind the assassination. In the end, Chagra was convicted of obstruction of justice in the Wood killing, attempted murder of the Assistant U.S. Attorney and drug trafficking. For these crimes, he received sentences of 10 years, life in prison and 30 years respectively. Given the gravity of the charges, it seemed unlikely that he would ever see the outside world again. However, he was released on parole in 2003. He died Friday at the age of 63.

We frequently hear about killings of judges in places like Iraq, the Philippines, Mexico and Colombia. However, they are extremely rare in the United States. There were three federal judges killed in the line of duty during the 20th century, as well as one case where members of a judge’s family were killed. Most were the work of mentally unbalanced litigants. The Judge Wood assassination stands alone as the only case of organized crime carrying out an assassination of a federal judge. Despite his infamous place in U.S. history, Jimmy Chagra served only 23 years and lived the last five years of his life as a free man. Now that is disturbing.

More Thoughts About Empathy and Judicial Selection

In my last posting, I compared the public statements of John McCain and Barack Obama regarding judicial selection. I was mildly critical of Sen. Obama for proposing to appoint judges based on their empathy and heart compared to Sen. McCain who proposed to nominate judges based upon “excellence in the law and a proven commitment to judicial restraint.”

While I touched on these issues lightly the first time, I want to dig a little deeper. Empathy and heart are not bad qualities in a judge. As a practicing attorney, I would never want to appear in front of a heartless judge who had no empathy for the parties in his court. When a judge displays an imperious temperament and is callous towards lawyers and their clients, we tend to call it “judge-itis”—and it is not a compliment.

Sen. Obama's Public Statements

However, Sen. Obama’s use of the terms empathy and heart suggests that he means something more than just treating parties with courtesy and respect. In three cases, Sen. Obama opposed President Bush’s nominees on the basis that they had not ruled in favor of specific groups.

In opposing the nomination of Judge Leslie Smithwick to the Fifth Circuit Court of Appeals, Sen. Obama said:

"Judge Southwick’s answers to the Senate Judiciary Committee failed to excuse his disappointing record on cases involving consumers, employees, racial minorities, women and gays and lesbians. After reviewing his 7,000 opinions, Judge Smithwick could not find one case in which he sided with a civil rights plaintiff in a non-unanimous verdict."

Obama Statement on the Nomination of Judge Smithwick for the U.S. Appeals Court, July 23, 2007.

In opposing the nomination of Judge Samuel Alito to the Supreme Court, Sen. Obama stated:

"The Judicial Branch of our government is a place where any American citizen can stand equal before the eyes of the law. Yet, in examining Judge Alito’s many decisions, I have seen extraordinarily consistent support for the powerful against the powerless, for the employer against the employee, for the President against the Congress and the Judiciary, and for an overreaching federal government against individual rights and liberties.

"By ruling this way so many times over a course of so many years, Judge Alito simply does not inspire confidence that he will serve as an independent voice on the U.S. Supreme Court."

Obama to Vote No on the Nomination of Judge Alito to the Supreme Court, January 24, 2006.

In opposing the nomination of John Roberts to be Chief Justice, Sen. Obama stated that in 5 percent of the cases the application of the law would not be clear. He went on to state:

"In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled—in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart. . . .

"The problem I had is that when I examined Judge Roberts’ record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak. In his work in the White House and the Solicitor General’s Office, he seemed to have consistently sided with those who were dismissive of efforts to eradicate the remnants of racial discrimination in our political process. In those same positions, he seemed dismissive of the concerns that it is harder to make it in this world and in this economy when you are a woman than a man."

Remarks of Senator Barack Obama on the Confirmation of Judge John Roberts, September 22, 2005.

Each of the statements quoted above were taken from official statements released by Sen. Obama and posted on his Senate website. Taken together, they suggest that the job of a judge is to favor the weak over the powerful and to effect social change in favor of racial minorities, women, gays, lesbians, employees and the disabled.

In the case of Judge Smithwick, Sen. Obama suggested that merely ruling in favor of civil rights plaintiffs in a unanimous decision was not enough; instead, there should be a record of ruling in favor of civil rights plaintiffs when other judges were ruling for the defendant. In the case of Judge Alito, Sen. Obama defined an independent voice on the Supreme Court as one that would rule in favor of the powerless against the powerful. In the case of Judge Roberts, Sen. Obama said that when the law was not clear that a judge should rule with his heart and in favor of the weak as opposed to the strong.

This reminds me of the time when my father served on a jury. An individual had sued a realtor. At the end of the jury’s deliberations, they found that the plaintiff had not proven his case and were about to render a verdict for the defendant. At that point, one of the jurors spoke up and said “Ah, but the defendant is rich so we must punish him.” To the jury’s credit, they did not follow that advice. However, the story points out the danger of trying to pick sides based on class or economic standing.

Conclusion

There is a school of thought called legal realism or critical studies. One claim by the proponents of critical legal studies is that “all law is politics.” “Many modern-day commentators have interpreted it as implying that in the eyes of the CLS scholars, all ‘legal’ decisions are just like ‘political decisions’ in the sense that it is impossible to tell judicial and legislative acts apart.” http:/en.wikipedia.org/wiki/Critical_Legal_Theory.

Based on his public comments, Sen. Obama seems to articulate a view that law is politics and that judges should weight their decisions in favor of the powerless. While this may be preferable to the view that judges should weight their decisions in favor of the powerful, it raises the question of whether judges should be choosing sides at all. Judges, being human, will always be shaped by their experiences, their upbringing and their core beliefs. However, it does not follow from this statement of the obvious that judges should rely upon those biases to act as super-legislators. Each of the three branches of government has a separate role to play. The legislative branch makes the rules; the executive branch should implement the rules; and the judicial branch should enforce the rules. However, those rules should come from Congress or the Constitution rather than the judge’s own sympathies. In my mind, a good judge is one who is aware of his own biases and sympathies and is prepared to rule the other way.