Looking at things like a good lawyer

Sean Hannity isn’t one of my favorite conservative talking heads. He has some good points, but he functions off of an anger and emotionalism that stops just short of (or maybe drifts over into) demagoguery. I thought this was very clearly displayed in his attack last night on Johnny Sutton, the U.S. Attorney out of Houston who obtained the conviction of two federal border guards who illegally shot a drug smuggler and then tried to cover up what they did:

As it is, I think Johnny handled himself very well in response to the attacks. He kept to a few important points, although I think he could have touched more upon a larger issue. His factual points were that Congress (not the federal prosecutors) makes the laws. The evidence showed that the border guards violated these laws. The evidence also showed that these same guards, knowing that they violated the laws, made every effort to cover up their wrongdoing.

The evidence also showed that these were not picayune little procedural laws, where either their violation or a subsequent cover-up might have been sloughed off with a hand-slap. Instead, these border guys went into Wild West vigilante mode and attempted to kill someone. I can certainly understand the guards’ frustration with the limitations Congress has placed upon them, but if they’re going to commit what they’re now trying to style as an act of civil disobedience, the principles of civil disobedience demand that they take the consequences and become martyrs to a larger cause. Johnny’s role is unchanged — assemble the evidence, see if it stands up to legal scrutiny and, if it doesn’t, prosecute. Those were all points Johnny made, and made well.

The larger issue is the fact that we, as a civilized society, need to ensure that, just as we give our police forces great power (and anyone who has been stopped for a traffic violation understands just how great that power is), we also need to ensure that our police forces never overstep that power. If they do so, we veer from a Constitutional democracy into a very scary police state. We also impair the integrity of all of our police forces if the public perceives a large segment of those forces as running amok with corrupt, vigilante justice. (Think of the L.A. Police Department, and how the public perception about its corruption helped shape the OJ trial.)

Lest you think I’m just talking technical lawyer talk here, I’m not. Over at Hot Air, you can also read a pretty good review of Johnny’s reasoning:

Whether you like it or not, Sutton is right that Agents Ramos and Compean were tried and convicted on the issues. The verdict shows that the jury did not believe the drug smuggler had a gun, or did anything threatening enough to justify the shooting.

Contrary to the belief of some, Johnny Sutton is not just out to nail any Border Patrol Agent who fires a gun. Border Patrol Agents in his district frequently engage in shootings, yet prosecutions like this are very rare. Ramos and Compean were prosecuted because their subsequent behavior showed that they didn’t think their shooting was justified.

If Ramos and Compean were the model Border Patrol agents their supporters make them out to be, there is no reason for them to have covered up this shooting. They picked up their casings and didn’t tell supervisors about the shooting. They had a chance to provide an innocent explanation for this damning behavior at trial — and they failed. A jury of twelve people concluded beyond a reasonable doubt that they were guilty.

Some say that any drug smuggler must be armed. But Sutton noted in his testimony yesterday:

From January 2004 through March 2005, there were 155 drug seizures at the Fabens Border Patrol Station, totaling over 43,000 pounds of marijuana. In none of those seizures was a gun found. Over the longer period between October 1, 2001, and February 15, 2006, the Fabens Border Patrol Station reported the seizure of only one firearm from a total of 496 drug seizures, totaling more than 131,000 pounds of marijuana. . . . The fact is that drug mules in El Paso almost never carry guns.

I’ll twist the knife further. You’re upset that the drug smuggler wasn’t prosecuted? Blame Ramos and Compean. As Sutton makes clear, if they’d done their jobs properly, perhaps the smuggler could have been prosecuted after all.

Hot Air has some bones to pick with Johnny, and ends up rhetorically throwing him to the wolves anyway, but I continue to believe that Johnny is right: the rule of law, which is the unpinning of our society, is nothing if we let our police be at the forefront of abandoning that rule.

The one other thing I can throw in is that Johnny is an all around good guy, completely decent, and conservative to the bone. Based on his personality and values alone, if he thought this was a case worthy of prosecution, I’m going to trust his instincts.

24 Responses

  1. I’m in agreement that if you do the crime, you do the time, and it doesn’t matter if you’re an officer of the law or an illegal alien (Wait….what IS happening to illegal aliens, these days?)

    Seriously, I have no beef with prosecuting these guys – they acted badly. Had the prosecution chosen charges related directly to what they did, then I’d say “Throw the book at them.” (I do have a bit of a problem with the privileges given to the drug smuggler in order to get his testimony… …including immunity, plus a free pass to come and go as he pleased….)

    But, my biggest gripe with all of this is what appears to me to be the misuse of a federal law in order to really stick it to these guys. I refer to the “carrying (or using) a weapon while committing a crime” (paraphrase), the charge that gave these guys the 10 years of the 11 and 12 year sentences they ended up with.

    That law was aimed at perpetrators involved in criminal activity who added to their crime by carrying or using a gun. But, these guys were doing their jobs at the time they began their “criminal” activity. They had guns because they were required to carry them. (mis)Using this law, passed for entirely different purposes (check the legislative history), is (to me) like using the anti-racketeering laws against the pro-life movement. Or like sending Martha Stewart to jail for saying things that weren’t true about activities that were never shown to be illegal. It may get by on narrow legal ground, but I think it’s misusing the law to punish someone you think is guilty of something terrible, even though you can’t get a conviction on that underlying crime.

    Had these guys got 10-year sentences for the shooting, or the covering up, or some other aspect of the actual criminal activity they are alleged to have committed, OK. But, this kind of mickey-mouse fiddling with the charges, in order to get long sentences you couldn’t otherwise get, leaves me extremely suspicious about this case.

  2. I have to agree with Earl.

    And Johnny may be an all-around good guy, decent, and conservative to the bone, but he’s absolutely tone-deaf and clueless when it comes to timing, and national mood.

    Granted, neither of those should play a role in deciding whether or not to prosecute, but the reality is that they do. There is the perfect universe of the books, and then there is the imperfect one in which we live.

    What he’s accomplished is to establish, to all too many people, that a prosecutor can indeed indict a ham sandwich.

    I’m not sure that was a wise thing to do, particularly on this issue.

    Then again, it may have been the perfect kick in the pants necessary to get some sense made in the laws and enforcement of immigration generally. Too early to tell.

    I don’t much like Hannity either – he’s a twerp. But Sutton’s now made it into the history books, and not for anything that’ll make his heirs proud.

  3. I may be misunderstanding what JJ means in paragraphs 2 and 3 above, but I don’t care WHAT the national mood is, torturing the law in order to bring a charge manifestly not intended to be used in the case actually before you is “wrong”.

    It’s wrong if the prosecutor is tone-deaf and clueless and thereby harms important policy initiatives. But, it’s equally wrong if the prosecutor knows exactly what the electorate wants and gives it to them, and actually advances an important policy initiative.

    It’s wrong because the individual is the proper level to be looking at in cases of this kind. The big racketeering law that was passed in order to suppress the Mob CAN be used against pro-life demonstrators, and it may even be popular to use it in that way, and the effect may be to stop the demonstrations outside abortion clinics. But this is exactly the kind of “mission creep” in the law and its enforcement that puts us all at risk.

    The law MUST be predictable in its operations if citizens are to be truly free. And to give these two guys 10 years by the “creative” use of a federal law against using a gun in the commission of a crime when you (apparently) can’t get the sentence you want for the underlying crime, will have massive unintended consequences among our law enforcement guys on the front lines.

    It may be a good conservative guy “doing the dirty” this time, but guess who is going to learn the lesson, and then turn this kind of prosecution against the “thin blue line” in cities all over our country? The ends do NOT justify the means, folks…..

  4. Just knowing lawyers and feds as I do, I suspect that much of the prosecutorial animus behind this suit had to do with the cover-up. Feds get mean about cover-ups, and to the extent Sutton was acting in an unusually aggressive way, that may have been the determining factor. Mistakes in the field happen, and usually get some leeway. Cover-ups, however, are inexcusable.

  5. I can certainly understand the guards’ frustration with the limitations Congress has placed upon them, but if they’re going to commit what they’re now trying to style as an act of civil disobedience, the principles of civil disobedience demand that they take the consequences and become martyrs to a larger cause.

    Actually, in my view, them trying to kill someone and failing when they were armed spoke more badly of them than any laws they broke. Undisciplined, out of control, bunch of freak jobs that can’t even do murder competently. Not sure what we need them on the border for.

    This is also another reason why the skills learned in Iraq is so very important for the US. Because the same US Marines and Soldiers manning the checkpoints in Iraq, are the only ones with the skills to be able to handle competently the MUCH LESS threatening posture of Mexicans and human traffickers across the border. Including the Meixcan mercenaries armed with military surplus.

    I think the evidence is pretty clear. Now that is.

    The one other thing I can throw in is that Johnny is an all around good guy, completely decent, and conservative to the bone. Based on his personality and values alone, if he thought this was a case worthy of prosecution, I’m going to trust his instincts.

    Thanks for weighing in Book. Your perspective is very valuable and it does tip the scales so to speak, for me at least.

  6. “They picked up their casings and didn’t tell supervisors about the shooting.”
    Oh, Except for the supervisors that were there as they picked up the shell casings.

    “The fact is that drug mules in El Paso almost never carry guns”
    And neither do the Crypts, the Bloods, or MS13 members. Anyone who believes this statement from Sutton is not adequately aware of the facts on the ground in EP.
    Mr. Sutton is very slick and has polished his presentation to a high sheen. He is not one of the good guys, he only knows how to talk like one.

  7. I can appreciate a prosecutor’s anger at anyone who attempts to cover up his crime. Are we going to excuse prosecutorial misconduct because of understandable anger….?

    I don’t think so. And I have a hard time believing that you really think so, either, Book. Is this a tribal thing – the lawyer’s guild, and all that? I’m not trying to be insulting, but I am trying to understand your continuing rock-ribbed defense of Mr. Sutton.

    For all I know, he’s the good guy, straight arrow you admire, and not the bad guy that D. Reid thinks. But, unless you have access to a lot of information that the rest of us don’t know, it seems to me there’s room for a kernel of doubt that real justice was done in this case.

    Please react to the “10 years for carrying a gun during the commission of a crime” sentence they hung on these two guys. If Sutton had charged obstruction of justice for trying to hide the evidence of the shooting, I wouldn’t be writing this to you…..but do you really want to allow prosecutors to do this kind of thing? When all the trees are cut down and the devil turns his attention to you, what are you going to hide behind?

  8. Earl, my rock-ribbed defense for Johnny’s decisions comes from knowing him fairly well and for quite a long time. This could mean I’m just placing blind faith in a friend, but I like to think it means I’m trusting someone whose intelligence and integrity has always been front and center in his life. If he’s a political con man, he’s conned me well; if he’s a vindictive operator, he’s hidden that fact.

    As for the problem with the long sentence for gun use in committing the crime, I have to admit to an incomplete knowledge of the law at issue, of Congress’ purpose in passing the law, and of the cases interpreting that law. I’ll offer a few ideas, though, off the top of my head. First, Johnny’s statement in the wake of the conviction is a useful rundown about the officer’s behavior. You can find it here: http://www.usdoj.gov/usao/txw/press_releases/2006/Sutton%20statement%20re%20compean%20and%20ramos%20conviction.pdf

    With regard to the gun usage, I can see that it would not (or should not) apply to officers who were acting in accordance with either their duty or their reasonable understanding of their duty, but who instead negligently violated the law and found themselves prosecuted. The facts of this case, though, demonstrate that the officers were not using their guns in the line of duty. Instead, the facts of the case indicate that, from the very beginning of their gun usage, they used their guns to commit a crime. In this regard, they are no different from someone licensed to own a gun who has a brain spasm and decides to rob a convenience store.

    Why should the officers being cut any slack for a gun crime that was illegal from beginning to end, simply because they have the right to carry a gun? No one else would be cut that kind of slack.

    As it is, though, I would be inclined to pardon them or commute their sentences because I think they’ll be dead meat in jail. These men were not corrupt cops in the traditional sense of the word, who work hand in hand with criminals for power or enrichment. Instead, for reasons I won’t try to guess, they got carried away, violated the law, and tried to hide their act. They were over-policing, one might say. It was wrongful, and those wrongs carry statutory penalties. However, once in prison, because they’re not crooks, but are, at heart, cops, they’ll be targets — and I don’t think they should be subject to that added layer of punishment.

    One other thing regarding the prosecutor: What people always forget is that there is a judge involved in all of this. In any case, attorneys take very polarized positions, with the prosecuting attorney prosecuting to the max, and the defense attorney defending to the max. It is the judge’s responsibility to inject a middle road into all of this — and especially to make sure that the right law is applied. That is, after all, the judge’s role — to apply the law.

    If the judge went along with the legal standard the prosecutor applied to this case, it either means that the prosecutor’s office did apply the right law, or that this was is a weak and bad judge. In the first instance, the prosecutor did no wrong. In the second instance, I would argue that the judge completely failed in his responsibility to ensure a fair and reasoned trial in his court. He acted like a ringmaster at the circus who allows the lions to take over.

  9. #

    Earl, my rock-ribbed defense for Johnny’s decisions comes from knowing him fairly well and for quite a long time.

    I suspected something like that given what you said of him and how you kept using his first name.

  10. I saw part of an interview with Sutton on CNN, which, surprisingly, was pretty aggressive. I didn’t catch the whole thing, but I came away with the impression the defendents were not upstanding guys, which may have motivated the prosecution, even though that information was inadmissable. One of the defendents apparently had a history of violence, including domestic violence.

    Like Earl, I am not pleased with the red carpet treatment the drug smuggler received, but maybe there was more to the deal than we need to know.

    As BW said when this issue first arose, there was more going on here than was initially reported.

  11. It pains me to keep on arguing about this, but the issue is SO important…as I expressed above.

    Clearly, this law was passed to nail criminals….guys who went out to do bad stuff – like rob the store, in the example BW gave. The intent was to convince criminals that if they were going to burglarize someone’s house, THEY, as well as the homeowners, would be a lot safer if they didn’t take a firearm with them.

    Saying that law enforcement officers, on duty with their service weapons on their hips, should have to worry about a mandatory 10-year sentence for “using a firearm while committing a crime” if they get nailed for a “bad shoot” is to cripple the cops…do we really want this? These guys did not take their guns out there to commit a crime. There is no way this is analogous to the example given.

    I’m willing to stipulate that these guys weren’t “good guys”. Why were they working for the border patrol, in that case? They should be fired, not put in jail for more than 10 years. Charge the actual crime — misuse of a weapon, covering up a crime, whatever — and the problem I have with this case goes away, even if they end up in prison for the same amount of time. Allowing prosecutors to be this aggressive, with even the truly bad guys, is a recipe for disaster for every one of us who depend on a nation of laws and not of men. And we’re seeing more and more of it. Here’s an example my brother the lawyer gave me just this morning: http://online.wsj.com/article/SB118480723539171082.html?mod=djemITP
    It’s the KMJ case, in case you don’t want to bother.

    I suspect (he repeated) that Johnny Sutton knew more about these guys than we do. I suspect that he wanted to punish them for a lot more than just their actions that day. I suspect that either the actual misconduct didn’t carry the kind of penalty the prosecutor’s office thought was warranted, or they didn’t think they could convince the jury of the worst legitimate charges. I suspect that someone said “Hey! Here’s this law that imposes a mandatory 10-year sentence on anyone committing a crime if he has a gun in his possession. We can get them with that one – what can the jury say?” This is wrong, and it’s extremely dangerous to all of us, however much we like the outcome in any particular case.

    Depending on the judge to do the right thing, when you’ve done the wrong thing, is how we got “campaign finance reform” and the McCain/Feingold unconstitutional law abridging free speech. Both congress and the President figured it was so obviously a violation of the first amendment that SURELY the Supreme Court would strike it down. We can’t continue to be free unless each and every one of us resolves to do the right thing (and then does it) pretty much every time a situation comes up.

    Our prosecutors must charge the crimes that are actually committed, and accept the sentences that result. If you want longer sentences, then get the law changed. But, allowing prosecutors to twist a law plainly not intended for the case at hand, merely because it suits his sense of what is actually deserved, puts us all at terrible risk.

  12. Earl, I think you make a really good case. Without knowing more about the law and the facts, I’m had a dead end in my argument, and have only my faith in Johnny, my knowledge of the way in which both prosecutors and defense attorneys always push for the extreme edges of their positions, and my suspicion that the judge (a) along with Johnny knew more than we know or (b) wasn’t a very good judge. Take away all those vague things, and you’ve got the better argument.

  13. I was reading Jay Nordlinger’s Impromptus today, and he came to Johnny’s defense. To support his position, he threw in cites to two early Andrew McCarthy articles. McCarthy is himself a former federal prosecutor, so he that gives him a definite bias, but his articles still make for interesting reading — and they’re much more informed than anything I could say. I don’t know that they’ll change your mind, Earl — and maybe they shouldn’t — but they do flesh out the information available. This is the first: http://article.nationalreview.com/?q=MTQ4OWJjZTNmODMwNzhlMzA2MzZhYzJmYWM2NjBkYzI=. This is the second: http://article.nationalreview.com/?q=YWVhZjE5ZmVkZjVjYzY5NGRkODBmYTdlNzFiY2UzZjI=

    (Pardon the awkward links, the my comments were rejecting HTML today.)

  14. I’ve read Andy McCarthy’s pieces in The Corner, and I agree with him on almost everything he says. These guys appear to be rogues, should have been fired earlier on, and ought to serve time in prison for this episode.

    But, even McCarthy says that charging the 10-year mandatory minimum was “a very close call”, and I think his experience as a prosecutor is what tips him over into the “reasonable exercise of discretion” camp. I just disagree.

    I’m pretty sure that most prosecutors are less alert to the possibility of over-zealous prosecutions and the threat to citizens of the U.S. should this become the norm. I’ll add another “I suspect” to my previous list – I suspect that Johnny Sutton and his staff were really ticked at these guys for refusing the plea deals that were offered. My suspicion is stronger because in the plea bargaining sessions, the prosecution didn’t mention the 10-year mandatory minimum charges – at least, if we can believe Andy McCarthy. When these guys stone-walled, undoubtedly figuring they could tell their story and get a jury to let them off, the prosecutors got mad. Understandable, but I don’t think we should retain prosecutors who let their emotions run away with them in this way. Judges should admonish them, keep track, and if they continue to twist the law to serve their emotional needs, should get rid of them.

    Prosecutorial excess, and even blatant cheating, is becoming more common – it’s one reason I will NOT vote for Rudy Guliani, despite his manifold pluses…check his record as a prosecutor in New York during the ’80s. We don’t want these guys cutting corners to do “good things”…that’s wrong. And the precedents that are set will be easily used by those who will do things we all agree are evil.

  15. Judges should admonish them, keep track, and if they continue to twist the law to serve their emotional needs, should get rid of them. With that statement, Earl, you’ve put your finger on one of my biggest gripes about the legal system: judges.

    I’ve been a lawyer for about 20 years, and I’ve only three times come across judges who do what they’re supposed to do: control the lawyers and apply the law.

    The issue of controlling the lawyers before them is simply. Just as drivers who suspect that their are cops around would restrain themselves from running red lights, even if they can’t see the officer at that particular moment, so too would lawyers, knowing that they’re being watched by competent judges, also slow down or stop. The fact is, though, that judges often do nothing to restrain the more extreme conduct of lawyers they see in the court. Lawyers, therefore, being rational creatures, figure the odds and understand that it’s worth their while to go for broke, since they’re unlikely to be stopped. I cannot tell you the amount of egregious conduct judge’s complacently watch.

    The other thing that drives me crazy about judges, and it dovetails with the failure to control the court, is their failure to apply the law. Now I recognize that operating in the San Francisco Bay Area puts you at special risk of activist trial court judges, but the problem really is epidemic. When judges take their oath and don the black robe, they’re supposed to promising to apply the law to the facts before them.

    What most judges seem to think, though, is that, like a priest in his vestments, they have a hot line to some greater truth — a hot line that allows them to ignore legal precedent and follow their gut. What this means is that you may have a client who is somewhat distasteful, but who is absolutely in the right legally — and he’ll still lose, not before the jury, but before the judge. These kind of emotional (and often politically oriented) rulings, destroy the stability of our system. People can no longer function in a world where there are legal absolutes to which they can hew and be safe. Instead, they’re at the mercy of every two bit lawyer elevated to the bench, with biases intact (and, in SF, those biases are usually against business).

    As is so often the case when I hear someone complaining about lawyer misconduct, I’m willing to bet that a large share of that misconduct is traceable back to a passive or biased judge.

    Having said all that, I recognize that prosecutors are unlike all other attorneys in that, with the power of the government behind them, they are themselves responsible for restraining their conduct. All other attorneys are allowed to push and push — and get away with it as long as no one pushes back more effectively, or as long as the judge lets them.

  16. I have a LOT of agreement with you about the judges, BW. They can stop the dangerous nonsense that is, as you pointed out, so very widespread these days. And they too rarely do.

    I also agree that prosecutors have a special duty to represent as ideal a version of what is “right” as they can. If the attorneys who represent, and who have the full power of, the government take a “win at all costs” approach, or are allowed to indulge their emotions in deciding on charges or in their strategy and tactics, we have disaster awaiting us.

    Having said that, here’s another link to a major example of the problem we’re discussing – making questionable business decisions criminal, and then strong-arming companies to abandon their employees to the mercies of the criminal justice system. Thank G-d that the judge in this case is taking charge. I think attorney who do this kind of thing and then lie about it should be disbarred!
    http://blog.kir.com/archives/2007/07/judge_kaplan_ha.asp

    I won’t say that about Sutton, but the judge should surely have disallowed the charge carrying the 10-year mandatory minimum….totally inappropriate, in my view.

  17. Not to beat a dead horse….but the following appears to be an example of what we get when prosecutors “go for broke”, and judges fail to restrain them.

    From The Corner:

    Marines on Trial [Michael Ledeen]

    You may remember that Congressman Murtha pronounced a ‘guilty’ verdict on some Marines in Haditha a while back. But the case against them isn’t all that convincing, which may be why coverage of the trial has been so sparse. If you’re interested, you can follow it here in the local paper, the North County Times, which provides much more detail than you get in the occasional reports in the big dead-tree media.

    For example, chew on this—from a similar case about events in Hamdania—for a minute or two:

    On Thursday, attorneys for Cpl. Marshall Magincalda…lost their bid to argue that the victim was a wanted Iraqi insurgent and not a disabled, retired policeman, as prosecutors have said.

    Judge Lt. Col. Eugene Robinson will allow prosecutors to remove the man’s name from the charges, effectively blocking defense attorneys from challenging who the victim really was, and whether he was a known insurgent.

    The essence of both cases is an accusation that the Marines cold bloodedly murdered innocent civilians. The defense is arguing that they counter-attacked in self-defense. It strikes me as significant that the defense apparently had evidence that one of the alleged victims was a known terrorist, and not a “disabled, retired policeman” (of course he could have been both). And apparently their evidence was pretty good, since the prosecutors asked to have the victim’s name removed from the case.

    07/20 09:59 AM

  18. The agents shot a man in the back. It was, according to current law, an illegal act. These men were tried by a full jury and found guilty.

    These are the facts. Everything else is just emotion. If there is a problem with the law, change the law. But don’t think Attorney Sutton was not doing his job.

  19. “That law was aimed at perpetrators involved in criminal activity who added to their crime by carrying or using a gun. But, these guys were doing their jobs at the time they began their “criminal” activity. They had guns because they were required to carry them. (mis)Using this law, passed for entirely different purposes (check the legislative history), is (to me) like using the anti-racketeering laws against the pro-life movement. Or like sending Martha Stewart to jail for saying things that weren’t true about activities that were never shown to be illegal. It may get by on narrow legal ground, but I think it’s misusing the law to punish someone you think is guilty of something terrible, even though you can’t get a conviction on that underlying crime.”

    Comment by Earl | July 18, 2007

    Actually, Sutton’s use of this law is more like a prosecutor bringing perjury charges against a witness on the fact that the verdict ended up being opposite the witness’ testimony. It’s disingenuous, silly, stupid, and just nasty.

    And, on top of all that, Sutton was just totally incorrect in the side that he was working for – evidently he doesn’t understand the relative value of US citizens versus non-US citizens to the US government. this is understandable, though, as he works for Jorge Bush, who thinks that he works for Mexico.

  20. There is something about this case that bothers me. Yes the border agents may not have been candidates for sainthood but I am deeply concerned about the government’s overly aggressive prosecution of this case.

    In light of the recent amnesty immigration bill and the disingenuous reasons offered for the inability to construct a border fence I feel strongly that this case was motivated by factors beyond the mere desire to enforce the law.

  21. “And Johnny may be an all-around good guy, decent, and conservative to the bone, but he’s absolutely tone-deaf and clueless when it comes to timing, and national mood”

    Should our justice system be changed so that the guilt or innocence of a party is determined by “national mood” instead of a trial by jury? Do we really our laws to apply only to the unknown or unpopular?

    If you feel the sentence was too harsh consider this. These agents had plenty of chances to admit that they didn’t follow procedure, but they chose to fight the case. Because they chose to fight, the prosecution didn’t and shouldn’t have given them leeway regarding a violation of the law simply because it carried a minimum mandatory sentence. The whole point of a plea bargin is you get a lesser sentence in exchange for admitting guilt and not wasting the court’s or the taxpayer’s time and money. If we gave everyone (the law applies equally to all) a lesser sentence regardless of plea, then no one would plead guilty and our justice system wouldn’t work as efficiently as it does today.

  22. I don’t think this is the place or time for a discussion of plea bargaining – it would take far too much time and space.

    Again, the complaint here isn’t that these guys got too tough a sentence for the crimes against the drug smuggler that they committed. The problem that threatens every citizen is that the courts are permitting aggressive prosecutors to do “creative charging” in order to hand out long sentences which they would not get if they simply charged the actual crimes that had occurred.

    In the present instance, Johnny Sutton used a law imposing a mandatory sentence for committing a crime while carrying a firearm, a law intended to induce criminals to do their crimes unarmed, in order to make citizens safer. He used that law against two border patrolmen, who must carry guns as part of their jobs. Further, he used this law against the guys when the crime being charged – shooting the drug smuggler – could not have been done without a gun.

    This crime is in no way comparable to a guy who goes out to burglarize a house and can choose to go armed or unarmed. These guys misused the tools of their trade – they are not the only people accused of such misuse…it happens all the time. I have no problem with them being tried and sentenced on the underlying crime of shooting the drug smuggler and trying to cover it up – let them serve whatever sentence those crimes carry if the jury convicts.

    But, it’s a dangerous precedent to allow the prosecutor to add in a 10-year mandatory sentence resulting from a law that cannot possibly apply to these guys except by torturing it until it shrieks. It seems plain to me that this was done to punish them for not pleading, but insisting on their constitutional right to a trial before a jury of their peers. I think that’s wrong, and even if you don’t – can’t you see the threat that this kind of thing poses to every law enforcement officer in our country….and finally to you and me and every other citizen, as well?

  23. “I think that’s wrong, and even if you don’t – can’t you see the threat that this kind of thing poses to every law enforcement officer in our country….and finally to you and me and every other citizen, as well?”

    They were found guilty of violating this law. If the law is bad, repeal it. I feel more threatened when our law enforcement agents are not held to the same or higher standards as everyone else. Would you rather live in one of those countries where the police and other government agents are not subject to their own laws? There’s plenty of countries like that and I’d pick our system over theirs any day.

  24. I don’t think it’s a bad law, Nelson….someone who chooses to carry a gun while he burglarizes a house, and when accosted uses that firearm to try and get away, OUGHT to have years added to his sentence.

    But, those who work in law enforcement carry a gun as a condition of employment. If we decide to apply a law that was never intended for them, and which doesn’t rationally apply to their situation, then we tell the men and women who protect us that if a jury decides they did something wrong in the performance of their duty, they’re risking a mandatory 10-year sentence because they have their service pistol on their hip. Does that seem rational to you?

    I agree that we live in the best country in the world. But it’s an abuse of power for a prosecutor to twist the law in this way. And he knew it, too — notice the reports that this mandatory minimum was NOT brought up during the plea bargains…it got added later, because the prosecutor’s office was ticked off that these two (bad) guys demanded a jury trial. This is a threat to you and to me — prosecutors have tremendous power and lots of leeway, and they need to have integrity to go with it. Sutton misused his power in this case, and he ought not be allowed to get away with it.

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