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By “Mark Andrew Dwyer”
March 29, 2007
(Updated September 25, 2007)
Ignacio Ramos and Jose Alonso Compean, Border Patrol ex-agents convicted by a U.S. court
for shooting and wounding a Mexican drug smuggler, Osbaldo
Aldrete-Davila, during his commission of crime, are
serving harsh ten to 11 year sentences in federal prison. The
“suspect”, a well known Mexican drug cartel member and a notorious
illegal border crosser, remains at large waiting for another opportunity to
smuggle a truckload of narcotics into the
As I indicated in my earlier commentary on this
subject (see ),
the basis for the agents’ prosecution and convictions was a
misinterpretation of the U.S. Constitution by the U.S. Court and by the U.S.
Attorney Johnny Sutton (and his subordinates) who entertained the canard of
illegal entrant’s “civil rights” that the ex-agents allegedly
violated. This absurd assertion (“civil” means “of or relating to citizens”, and “civil rights”
movement was a movement of black citizens of the U.S. against segregation)
contradicts several well-known opinions of the Supreme Court and (past) White
House administrations that illegal aliens generally do not enjoy all the
Constitutional rights while in the U.S. (see footnotes in  for detailed rationale and exact quotations
from Supreme Court’s rulings). In particular, Fourth Amendment
protections apply only to the members of “national community” (the
Supreme Court’s language) that consists of
To add an insult to injury, Mr. Sutton, supported by former supervisor of the ex-agents, Border Patrol Chief Barker (watch  for his statement), invented quite novel legal doctrine in order to justify the mentioned above travesty of justice. He and chief Barker claim now that the ex-agents failed to prove in the court of law that the shooting of the smuggler was justified by the circumstances, as if presumption of ex-agents’ guilt was the point of departure for the entire process (which it probably was). I was left speechless.
Imagine this. In the middle of a night, a
notorious burglar broke into your house and is now pointing at you an object
that looks like a gun. So, you shoot and wound the mother sucker with your .38
special S&W revolver that you kept under your pillow and the suspect flees.
Few days later, a
As absurd as the above story may seem to you, that’s exactly what Mr. Sutton and Chief Barker have been doing. Despite the fundamental “innocent until proven guilty” doctrine1 that has long been accepted in the American jurisprudence, they skillfully shifted the burden of proof from the prosecution to the accused, apparently stipulating on national TV (as visualized in ) that if the ex-agents shot the smuggler in self defense then they had a duty to prove it (which they, apparently, didn’t). When I watched chief Barker de facto dismissing off-hand the presumption of innocence doctrine1 during his interview by Lou Dobbs (see  and judge for yourself) I hoped I would never be subjugated to the judgment of such a narrow-minded individual like he was, or else I might find myself a part of yet another travesty of justice.
The entire affair (the unjust conviction of
ex-agents and their undeservedly harsh punishment) becomes even more disturbing
under the circumstances of the scandal that has been brought to public
attention earlier this month. It turns out that the U.S. Department of Justice
fired eight U.S. Attorneys for purely political reasons, and the Attorney
General, Alberto Gonzalez, made “[not] accurate” statements in
front of the U.S. Senate regarding his role in the firing (see  for details) as well as the
reason for it. Initially, Mr. Gonzalez maintained that he was not aware of the
firing, and that the fired attorneys were dismissed based on their
(unsatisfactory) performance, only to admit later that he was aware of it and
that “performance considerations” and “political
reasons” were virtually synonymous notions in this context. In other
words, the Attorney General’s idea of the effective federal law
enforcement is that the
It’s pretty scary, isn’t it? We knew
of this kind of “political justice” in the former Soviet Union and
its satellite socialist “democracies”, but in the
As to Mr. Gonzalez and the firing scandal that
he has been in the center of, several
Notes. 1The “innocent until proven guilty” doctrine, also known as the presumption of innocence, which has been central to the American criminal justice system, rests the burden of proof with the prosecution and not with the accused. If the prosecution fails to prove, beyond reasonable doubt, that the accused is guilty as charged (which responsibility includes a proof of criminal intent of the accused), the court, according to that doctrine, shall acquit the accused. Any requirement that shifts the burden of proof from the prosecution to the accused (for instance, by stipulating a proof of innocence of the accused as a necessary condition for his acquittal, an implication that has been clearly made by Chief Barker during his interview , and then echoed by Mr. Sutton at a later phase of the same program) violates his presumption of innocence and de facto introduces the opposite presumption, of his guilt into the legal process. Unfortunately (or, illogically), a court will rarely grant the presumption of innocence to the accused who claim that they had committed a homicide in self-defense, and only under certain circumstances, or else the court will require a proof of deemed necessity (as perceived by a “reasonable person”) of a deadly force. Although some may argue that in prosecution of homicides and other cases of similar gravity, court’s reluctance to fully grant the presumption of innocence to the accused who claims self-defense is a draconian but necessary measure without which conviction of a murderer would be virtually impossible (never mind the burden of proof of his/her criminal intent that, theoretically, still rests with the prosecution), it appears utterly unfair and out of place in the U.S. in cases of lesser charges, like in the case of the ex-agents (assault with a deadly weapon and violation of “civil rights” of the alien criminal). Moreover, it seems clear to the author of this writing that American national interest does require that such a presumption of innocence (as pertaining to self-defense) be given to border enforcement personnel while preventing border violations by criminal entrants, just like it is customarily given to a resident in cases of home invasion (just to name one example), without which any meaningful border enforcement against numerous and determined violators may soon turn virtually impossible. Such a presumption may be later disproved, if actually false, by the prosecution, based on the facts presented during the trial. It is one of the most fundamental duties of a jury to determine whether or not a “reasonable person”, out of genuine fear of being killed or seriously injured, would be compelled to use a deadly force (which in the case of ex-agents turned out not quite deadly) under the same circumstances as the accused was exposed to, but, according to trial transcripts, the jury in this case was kept ignorant of the border violence and grave risk of death or great bodily injury that the ex-agents were subjected to while performing their duties, as well as of criminal past of the smuggler and his affiliation with Mexican drug cartel notorious for its violence. As a result, the jury must have had rather fuzzy idea of what a reasonable person in shoes of the ex-agents would do under the circumstances. It’s worth noting that, contrary to common belief, neither the phrase “innocent until proven guilty” nor the presumption of innocence (never mind the individual right to self-defense) appear in the language of U.S. Constitution and the Bill of Rights, which leaves room for their different, sometimes contradictory, interpretations. The “innocent until proven guilty” doctrine and the right to self-defense predate the U.S. Constitution and are ones of the individual rights protected by 9th Amendment that reads: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
2(Added Sep. 25, 2007) The argument is circular because it concludes that the discharge of a firearm by the agents must be characterized as "while commission of a violent crime", even if no crime has been committed, except, perhaps, for the allegedly criminal discharge of the firearm. In other words, the prosecution argued that if someone fires a firearm and this act is later presumed unlawful then the perpetrator automatically qualifies for 10 years sentence self-"enhancement" due to the discharge of the firearm "while commission of a violent crime", which, in turn further "proves" that the said discharge was a violent crime "eligible" for 10+ years prison sentence. This way anyone who fires a firearm (try to convince a jury that firing a gun is not a violent act, particularly if considered a crime) can end up spending 10 years in penitentiary even if no crime (other that the very firing of the firearm) has been committed. Fortunately, agents' defense lawyer, J Mark Brewer, noticed this circularity of indictment and used it a basis for an appeal that he filed on behalf of the agents. The appeal points out that the agents "were charged with a nonexistent crime and convicted after the jury was given improper instructions by the trial judge" and that they were charged "under a federal statute [a self-enhancing effect of which has been pointed out above] with the discharge of a firearm in relation to a crime of violence, but the statute does not define a crime and contains only a sentencing factor to be addressed after conviction." (See  for more details.) [top]
Readers’ comments: [Be the first one to send a comment to email@example.com] [top]
 The Blessings of
 Lou Dobbs Special -- CNN -- March 27 (video clip)
 Ex-Aide: Gonzales Signed Off on Firings
 Bush Administration in Denial of ‘North
Ex-border agents appeal convictions
Past commentary (January 28, 2007) STEALING THE AMERICAN DREAM
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