Senators Grill Prosecutor of Ex-Border Agents

Since 07-21-07

By Fred Lucas
CNSNews.com Staff Writer

July 18, 2007

http://www.cnsnews.com/ViewPolitics.asp?Page=/Politics/archive/200707/POL20070718a.html

(CNSNews.com) - Looking for a word to describe a prosecutor's controversial actions that helped put two former U.S. Border Patrol agents in prison, a senior senator Tuesday settled on "overreaction."

Sen. Dianne Feinstein seemed hesitant to use a more severe description to describe U.S. Attorney Johnny Sutton's role in the affair, which caused a storm earlier this year and sparked strong criticism of the Bush administration by lawmakers from both parties.

But the California Democrat did not hesitate to take issue with Sutton on a number of points during a Senate Judiciary Committee hearing she chaired. Feinstein frequently cringed and often looked perturbed at Sutton's responses.

The hearing was called to examine the prosecution and imprisonment of Ignacio Ramos and Jose Compean. The two are serving jail terms of 11 and 12 years, respectively, for shooting a Mexican drug smuggler in the buttocks and then covering up the February 2005 incident.

Other senators joined a chorus of criticism against Sutton, who brought the case after offering a deal to the Mexican, Osvaldo Aldrete-Davila. In exchange for immunity from prosecution, he returned to the United States to testify against the two agents in court.

Although few new revelations surfaced during Tuesday's hearing, Sutton and other government officials were asked to explain why the case was brought to begin with, why the sentences were so severe and why the drug dealer was never prosecuted for an alleged secondary drug offense.

The panel also focused on the conviction for discharging a firearm while committing a crime, an offense carrying a mandatory sentence of 10 years. It was one of 12 charges brought against the agents and a key factor in the length of their sentences.

Senators from both parties on the committee contended the statute is not intended for law enforcement officials who use their weapons while doing their job.

"There was no criminal intent [on the part of the agents]," argued Sen. Jeff Sessions (R-Ala.). "Indeed, the intent was to create a lawful society."

David Botsford, an attorney for Ramos, told the panel that even if Aldrete-Davila was unarmed -- as the prosecution had convinced the jury -- the agents believed they saw him pointing something shiny at them.

"If there is a good faith mistaken belief that Davila had a gun, they had the right to use their guns," Botsford said.

During his testimony, Sutton said: "The fact is that it is a crime to discharge a firearm during a crime of violence, and we will continue to bring those charges where the law and evidence warrants."

Feinstein asked him, "Did the jury know that [the gun crime charge] carried a 10-year minimum sentence?"

"No, Ma'am," Sutton replied.

Sutton, who is based in the Western District of Texas, said prosecutors in his office had made the decision, without consulting him, to add the charge and other additional ones to the original three charges brought against Ramos and Compean.

On numerous occasions during questioning, Sutton deferred to his staff. It was his staff, he said, who made the decision to offer immunity to the drug dealer -- again without consulting him.

In response to questions about why his office did not pursue criminal charges against Aldrete-Davila more aggressively, he again attributed this to "the opinion of the trial team ... ."

Nonetheless, he said he supported his staffers' decisions. When Sen. John Cornyn (R-Texas) suggested some of Sutton's staff members be called to testify since they may have more answers, Sutton responded: "I stand by my people. This was a big case. I was very much involved."

'Cover-up'

Despite criticism from senators, Sutton seemed fairly at ease and held firm to his case, repeating earlier statements that Aldrete-Davila was unarmed, that the agents did not know for certain that he was a drug dealer when they shot him -- drugs were found in his van only after the shooting -- and that they were involved in a "conspiracy to cover this up."

"The jury concluded after hearing the testimony of the agents at the scene, the drug smuggler who was shot and the defendants themselves that the agents shot at and struck an unarmed, fleeing drug smuggler; that they deliberately failed to report the shooting as they were required to do; that they destroyed evidence to cover up their actions; and that they did those things willfully in violation of the laws they were sworn to uphold," Sutton told the panel.

Still, senators were puzzled as to why the drug dealer has not himself been charged, given evidence he smuggled a second load of drugs into the country several months after being granted immunity in the original incident.

Questions were also raised about the veracity of the Mexican's testimony, and some senators said he had not honored a provision of the immunity agreement that forbade him from protecting or withholding information about other members of his drug cartel.

As Cybercast News Service reported earlier, after the drug dealer was brought to the U.S. for medical treatment for the bullet wound, U.S. authorities gave him a "humanitarian pass" to cross the border freely. It was during this time, according to Drug Enforcement Administration documents, that Aldrete-Davila was allegedly involved in further drug-smuggling.

"Was it wise to give a humanitarian pass to a known drug dealer?" Cornyn of Texas asked.

Sutton responded: "You're assuming he ran another load of dope."

Feinstein interjected, raising her voice slightly. "His question was, 'Do you think it was wise to give a humanitarian pass to a known drug dealer?'"

Sutton wavered, "If he ran another load of dope, it was a mistake [to give him the pass]. If he did not run another load of dope, it wasn't."

Sutton said the alleged second offense was the subject of an ongoing investigation.

'Slam dunk'

Sessions of Alabama wanted to know why Sutton had not simply prosecuted Aldrete-Davila for the first offense -- running drugs across the U.S.-Mexico border in February 2005.

"Flight is evidence of a crime," Sessions asserted. "There is a van full of dope, and he runs off. I think that's a slam dunk."

Sutton responded that if border agents hadn't destroyed evidence at the crime scene, prosecutors might have been able to do so.

"The DEA initially treated this [743 pounds of marijuana found in the van] as an abandoned load," Sutton said. "There was no physical evidence this guy was driving the van."

Feinstein also had an exchange with Luis Barker, former chief patrol agent of the El Paso Border Patrol sector, about what action agents should take if a fleeing suspect ignores shouted warnings to stop.

"They should use measures other than deadly force," Barker replied.

"No wonder we have so many drugs coming over the border," Feinstein commented.

Critics of the Ramos-Compean prosecution and imprisonment have claimed that the case had a "chilling effect" on other Border Patrol agents, but Barker disputed that.

"The facts do not support this contention since in the last two months, agents have discharged their weapons against assailants in self defense on three occasions in El Paso, resulting in injury to one suspect," he said.

But T. J. Bonner, president of the National Border Patrol Council -- the border agents' union -- told the committee that the case has had the effect of discouraging agents.

"Someone said to me you would have to be crazy to join this outfit. You eat your own," Bonner said.



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