Prosecutor's 'discretion'

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Last month, when Border Patrol Agents Ignacio Ramos and Jose Compean began serving 11-year and 12-year prison sentences, respectively, for shooting at a fleeing drug smuggler, many Americans were outraged that the federal government would prosecute two agents for doing their jobs.

Their trial uncovered policies that seem designed to undermine success -- such as the rule that prohibits agents from pursuing a speeding suspected smuggler without a supervisor's authorization. Drug smugglers know that if they speed to the border, they'll likely get away.

But the real outrage in this story is how federal prosecutors used their discretion to shelter a drug smuggler and go after two men who, at the worst, should have been fired for shooting at the smuggler and then not reporting what they had done. The outrage is that this case ever came to trial.

Reading the trial transcript -- which was released Tuesday -- you can't tell which witnesses seemed credible. Nor do you see drawings that show the lay of the land on the afternoon of Feb. 17, 2005, when drug smuggler Osvalo Aldrete-Davila drove a truck filled with 743 pounds of marijuana off a West Texas road and then tried to run for the border when he encountered Agent Compean.

Did Agents Ramos and Compean shoot at a man they knew to be unarmed? I see reasonable doubt. Compean said that as Mr. Aldrete-Davila fled, the smuggler turned toward him with a shiny object in his hand, so the agent fired back in self-defense. Ramos said he heard the shots while he was crossing a ditch and could not see what was happening. Then, fearing for his partner's safety, he fired one round at the suspect, who first dropped out of sight and then was seen walking into Mexico and being driven away in a friend's car.

I see how jurors could have seen the agents' failure to tell supervisors about the shooting, their failure to tell other agents the suspect was armed, and the fact agents scooped up the spent shells when Ramos and Compean realized they had engaged in a bad shoot. Hence the guilty verdict.

But there is no way to know for certain if Mr. Aldrete-Davila had a gun or a cell phone in his hand as he fled. Yet U.S. Attorney Johnny Sutton's office waged this prosecution based on Mr. Aldrete-Davila's version of events -- even though the smuggler originally lied to a Border Patrol agent when he said he was shot as he was simply returning to Mexico. He left out the drug smuggling.

Later, when Mr. Aldrete-Davila was supposedly telling the truth, his story still smelled. As Ramos' defense attorney, Mary Stillinger, said in court, Mr. Aldrete-Davila claimed "he's a little mule, and he needed money for his mother's doctor's bills, and he needed money to renew his commercial driver's license" -- which was current. "He doesn't know who hired him. He doesn't know where the stash house is."

Later, Miss Stillinger added, Mr. Aldrete-Davila apparently abused the border-crossing card provided by Uncle Sam to assist with the medical care he needed because the bullet severed his urethra. She noted in court, Mr. Aldrete-Davila "did it again in October, he personally took the load to the stash house."

Was he smuggling again? Mr. Sutton replied, "To our knowledge, Aldrete has not been arrested or indicted on any other loads." The records are sealed.

Oh, and Mr. Aldrete-Davila is suing the Border Patrol for $5 million. It doesn't help the prosecution's credibility that Mr. Aldrete-Davila testified in court that a family friend, the Border Patrol agent who started this investigation, told him he might sue the Border Patrol and helped him find a lawyer -- which the agent denied.

In addition, three agents testified against Ramos and Compean (with limited immunity for their role in the alleged cover-up), but none of them saw the whole exchange. Two were too busy checking out the drug van to run to the scene when they heard gunshots.

Mr. Sutton argues he has to prosecute when his office sees a crime. He told me, "Of course, my office would have preferred to have sent the alien to prison for his crimes, but when the agents broke the law, destroyed the crime scene and covered it up, they made that impossible."

I do not countenance law enforcement officers shooting at unarmed suspects. If that's actually what happened, Ramos and Compean should lose their jobs.

But a just government does not put men who have risked their lives in the line of duty -- men who are not criminals, did not premeditate their misdeed and have not been running criminal rackets on the job -- in prison for more than a decade.

When you think of the considerable resources spent on this trial, so prosecutors could put behind bars two agents who may have screwed up dangerously in the heat of pursuit and lied about it -- in order to help a drug smuggler who has a financial incentive to lie -- you wonder where the justice is. And you cannot see it here.

Debra J. Saunders is a nationally syndicated columnist.