Judge calls prosecuting ex-agents an overreaction

Federal prosecutors may have overreacted in the case of two former El Paso Border Patrol agents convicted and sentenced to prison for shooting an admitted drug smuggler in the buttocks, an appeals court judge said Monday in New Orleans.
His comments renewed hopes that the agents' conviction would be overturned and gave more energy to a national movement working for their release.

Judge E. Grady Jolly, one of three judges from the 5th U.S. Circuit Court of Appeals hearing the case of Ignacio Ramos and Jose Alonso Compean, questioned whether the two agents would have been charged if they had reported the shooting.

"For some reason, this one got out of hand, it seems to me," Jolly said of the agents' prosecution.

Ramos was sentenced to 11 years in prison and Compean to 12 years in prison for shooting Osvaldo Aldrete Davila as he was running back to Mexico after a failed smuggling attempt near Fabens in 2005. The agents were convicted by a federal jury in El Paso of violating the smuggler's civil rights and for tampering with evidence for not reporting the shooting and because Compean picked up his shell casings. Their sentences include a mandatory 10 years each for using a weapon in the commission of the offense.

The agents' attorneys are asking the 5th Circuit to throw out the convictions. The judges didn't indicate when they will rule on the appeals.

Joe Loya, Ramos' father-in-law, was present at the 75-minute appeals hearing Monday in New Orleans. He later described the event as "standing room only."
"Whereas we had butterflies before (the hearing), we feel very optimistic now, not overconfident but optimistic," Loya said in a phone interview. "(The judges) never argued any points with the defense attorney, but they argued a bunch with the government lawyer. The government admitted that Davila had lied on the stand. When he said that, the gallery was ... ahh! It was awesome. ... We can tell that they (the judges) are not in agreement."

At the hearing Assistant U.S. Attorney Mark Stelmach acknowledged that Aldrete told "some lies" to investigators, but he said jurors rejected the agents' argument that they acted in self-defense when they shot at Aldrete.

During his trial, Compean testified that he shot in self-defense after seeing what he believed to be a gun in Aldrete's hand, although he did not say so at the time of the shooting. Ramos said he fired in defense of Compean. Aldrete denied having a gun. Both agents acknowledged not reporting the incident.

Family members and supporters of the agents have said the sentences are excessive for the offense committed.

"It does seem to me like the government overreacted here," Jolly said, noting the severity of the charges and the lengthy sentences prosecutors sought, as he questioned Stelmach.

Jolly said that if the agents had reported the shooting, as required, "this prosecution never would have occurred, in all likelihood."

U.S. Attorney Johnny Sutton issued a written statement after Monday's hearing, reiterating his position on his office's prosecution of Compean and Ramos.

"The actions of Compean and Ramos in shooting an unarmed, fleeing suspect, destroying evidence, and engaging in a cover-up, are serious crimes. They were prosecuted to uphold the rule of law. A jury rejected their factual claims of innocence after a two week trial. The case is now before the Court of Appeals for the Fifth Circuit, which will resolve the disputed legal issues in accordance with the rule of law. I look forward to the decision of the Court of Appeals," Sutton wrote.

Compean's lawyer, Bob Baskett, said he was encouraged by Judge Jolly's comments.

"They certainly were aware of the significant issues in the case," Baskett said.

Ramos' attorney, David Botsford, said he didn't read anything into the judges' remarks.

"The court is going to follow the law," he said.

The convictions of Ramos and Compean caused a national firestorm among conservative lawmakers and others.

Monday, Tara Setmayer, the communications director for U.S. Rep. Dana Rohrabacher, R-Calif., said she was "pleased" with the hearing.

"The judges asked all the right questions and the government gave all the wrong answers. It was clear by the line of questioning that the judges shared the same legitimate concerns we've had about this case all along. I hope to see Ramos and Compean home to families before Christmas and justice will finally be served," she said.

Aldrete survived the February 2005 shooting. He was arrested last month after an October indictment on various drug charges.

In exchange for his testimony against the agents, Aldrete was given immunity from prosecution for allegedly trying to smuggle drugs the day he was shot. Jurors didn't hear evidence that Aldrete allegedly smuggled marijuana into the United States several months after the shooting.

Botsford said Judge Kathleen Cardone, who presided over the trial in El Paso, should have allowed jurors to hear evidence that Aldrete was "not a (drug) mule, a simple one-time (border) crosser."

"He basically left a false impression for that jury," Botsford said of Aldrete.

Judge Patrick Higginbotham, who heard the appeal with Jolly and Judge Edward Prado, said evidence that Aldrete made multiple attempts to smuggle drugs across the border "strikes me as very relevant."

Baskett said Cardone failed to properly instruct jurors on the legal principles governing the use of deadly force by law-enforcement officers.

"What you basically have is an equivocal direction to the jury on a basic charge in the case," Baskett argued.

The agents' wives and several Border Patrol agents attended Monday's hearing.

"I'm still very guarded about it, because you never know what to expect," Ramos' wife, Monica, said.

Compean's wife, Claudia, said the judges' remarks gave her a "little hope."

"It was very encouraging, considering the luck we've had in the past," she said.