As a former police officer, my visceral reaction to the U. S. Fifth Circuit upholding the criminal convictions and lengthy sentences of former Border Patrol Agents Ignacio Ramos and Jose Compean was, despite the late Supreme Court Justice Robert Jackson’ dictum to the contrary, that our Constitution has become a national suicide pact.  Before commenting, though, I thought it would be helpful to actually read the Fifth Circuit’s opinion in United States v. Ramos and Compean.  You can, too, here. Such a reading is instructive.  For one thing, it demonstrates the obvious miscarriage of justice that occurred, and makes it pretty clear where the blame lies.  There is plenty to go around, much further than one would think.

I begin by making it clear that there is no way two Border Patrol agents, who appear to have otherwise had exemplary lives and careers, deserve the 10 years plus prison sentences for shooting a career criminal drug smuggler in the butt with non-fatal results.  Under the facts related by the Fifth Circuit in its opinion, they do not deserve a medal, either.  I am not here attempting to justify law-enforcement misconduct.  I would like to understand who might be responsible for this most recent law enforcement fiasco.

The Fifth Circuit?  No way.  The judges did a fine job of analyzing the facts in the record and the applicable law.  There was no judicial activism in this opinion, although the reaction of many may well be “more’s the pity.”

The trial court?  Maybe, it’s hard to tell.  Some alleged error was analyzed on appeal under a more deferential standard because the agents’ lawyers did not object to evidence offered by the government.  There were also some technical evidentiary rulings by the judge that might have gone the other way, and still have been upheld as being in the trial court’s discretion.

The jury?  The Fifth Circuit correctly stated that the case boiled down to whether the jury would believe the agents’ stories or the drug smuggler’s.  They chose to believe the smuggler’s version.  Why? You ask.  Again, it’s difficult to tell.  The appeals courts nearly always defer to the jury’s finding of a contested fact – especially when it involves who is telling the truth – unless the record shows absolutely no evidence to support the finding.  The record of testimony does not convey the facial expressions, the body language, the tone of voice, or the general demeanor of a witness (or the lawyers, who can sometimes act like jerks and alienate the jury).  All of these factor into their decision as to who is more believable.  It is truly a situation where you would had to have been there to intelligently evaluate the findings.  That is not to say that the jury may have been stacked with those more likely to be biased against the agents.  Given the necessity for a unanimous verdict, that seems unlikely to have had much effect.  Making a reasonable evaluation of this possibility would take more research that most of us have time for, and ultimately might prove to be a fool’s errand.

The Border Patrol?  According the facts recited in the opinion, the command and internal affairs investigators seemed to be unusually diligent in trying to make a case against the agents.  It is hard to fault them for this, though.  Ramos and Compean did not report the shooting incident, and the Border Patrol had a mystery to solve.  They did.

Agents Ramos and Compean themselves?  Once again, we have a cover-up of a questionable event that, had it come out at once, might have not amounted to anything.  Our culture views a cover-up, particularly when government actors are involved, as worse than the actual crime.  Furthermore, it almost never works -- Shakespeare’s tangled web.   If the two agents would have followed procedure and reported the incident immediately, their stories would not have been tainted with inference of guilt flowing from covering up.  In this regard, if not in the acts where they attempted to apprehend the smuggler, they showed poor judgment.  It came to haunt them.  Ironically, the Fifth Circuit reversed the agents’ conviction for the actual concealment, while affirming the convictions which carried harsher penalties.

U.S. Attorney Johnny Sutton?  He had the discretion to prosecute or not, or for what.  He chose to throw the book at the agents.  Why?  One answer is that prosecutors often get so much of an intellectual and emotional investment in prosecution that they become blind to everything else.  Many become crusaders for their notion of truth, justice, and the American Way.  I know next to nothing about Sutton, but I would wager he has never had street experience in law enforcement, and he would not be aware of the realities of what goes on out there.  Whatever else Ramos and Compean did wrong, they did not unjustly kill, or even seriously injure, anyone.  There were plenty of lesser offenses they could have been charged with, that more appropriately would have fit the offense.  Furthermore, who knows what future political aspirations Sutton might have.  Successful prosecution of rogue law enforcement officers looks good on one’s resume to those pretty much across the political spectrum.  If he had not a good deal of such ambition in the past, he would not be the U. S. Attorney.

President Bush?  Sure, why not?  He gets blamed for everything anyway, what is one more.  He did appoint Johnny Sutton.  He could have pardoned the agents (he may still).  No, this is too much of a stretch.

The U. S. Congress?  Ah! Now we are getting somewhere.  In an effort to eliminate sentencing disparity in the federal courts across the Nation, and, of course, worshiping at the altar of the always elusive equality, Congress enacted the idiotic U. S. Sentencing Guidelines which removed virtually all sentencing discretion from the courts.  Now a bureaucrat sitting in a windowless room adding up point, has more power than anyone else in determining how much time a convict will do.  It is true that the U. S. Supreme Court recently has had the wisdom to rule that the Guidelines must be advisory rather than mandatory, but they still give a presumption of reasonableness which courts are loathe to depart from.  But worse than the Guidelines, statutes imposing mandatory minimum sentences for certain crimes, notably those involving drugs, totally remove lower end discretion.  In this case, the Fifth Circuit held that the statute (18 U.S.C. § 924(c)(1)(A)) that imposes a mandatory minimum of ten years for discharging a firearm in relation to a crime of violence or drug crime applies to those trying to enforce the law as well as those trying to break it.  As ludicrous as this sounds, it is wholly consistent with the court strictly construing a statute passed by Congress and signed into law by the President.  In fact, it would have been judicial activism for the Fifth Circuit to say it did not apply in this circumstance.  The en banc Fifth Circuit or the Supreme Court could weigh in on this issue and rule that Congress could not have intended what appears to be an absurd result, but that is doubtful.  It is entirely probable that Congress really did not intend this application of the statute, and it is the result of shoddy draftsmanship.  If so, it’s not the only thing Congress has managed to screw up lately.  Rest assured, however, that our lawmakers will not in any case touch this issue, particularly given the present political climate.

The rest of us?  That is where the buck stops.  We elect our lawgivers, and other officials, often with too little thought.  Draconian laws, such as the one cited here, may make us feel good, but they have unintended consequences.  That is what a happened to Agents Ramos and Compean.  I am convinced that our government is responsive to the American people, which tells us something – something we really do not want to hear.  Enough said.

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