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Prosecutor stands in political storm

Web Posted: 03/04/2007 12:16 AM CST

Guillermo Contreras
Express-News

The Justice Department's recent firings of eight top federal prosecutors across the country have come amid allegations that the agency bowed to political pressure.
Even as the Justice Department rebuts the accusations, some are wondering who might be next.

In Central and West Texas, Johnny Sutton has held the post of U.S. attorney for more than five years, but he has come under fire recently over a case in El Paso in which Sutton's office gained convictions of Border Patrol agents who shot an alleged drug smuggler.

In a federal trial in El Paso last year, jurors convicted Ignacio "Nacho" Ramos and Jose Alonso Compean on charges that they shot the alleged smuggler in the buttocks Feb. 17, 2005, and counts alleging they covered up the shooting. Ramos got 11 years in prison. Compean was sentenced to 12. Both have appealed.

Hailing them as "heroes" who were wrongly convicted, some foes of illegal immigration and Republican members of Congress are pushing for President Bush to pardon them.

More Information
Report of Investigation on Ignacio Ramos & Jose Compean

Without a satisfactory answer from the White House on the request, supporters of the agents are aiming at Sutton who, from Austin, supervises 120 federal prosecutors in the largest federal district in the country, a territory that stretches from Waco to San Antonio, south to Del Rio and west to El Paso and Midland/Odessa.

Sutton "has violated the public's trust, and must be removed from office immediately," said T.J. Bonner, president of the National Border Patrol Council, the union that represents 10,000 Border Patrol agents.

"Our federal government had to make a choice between prosecuting somebody who was bringing in $1 million worth of drugs, and prosecuting two border agents who did not follow policy," said U.S. Rep. Ted Poe, R-Humble, who stopped short of seeking Sutton's removal but has collected more than 40 signatures from fellow House members seeking congressional hearings on the case. "The government chose the wrong side."

The Justice Department had no comment Friday on whether mounting criticism would have an effect on Sutton's post. But a high-ranking department official told the Senate Judiciary Committee last month that Sutton's job is safe. The Feb. 6 hearing was to review the wave of terminated U.S. attorneys, the transcripts show.

"No," Paul J. McNulty, the No. 2 man in the Justice Department, responded to a question of whether Sutton's job was in danger over the controversial border agent case.

Sutton, a former Harris County prosecutor who has held criminal justice policy advisory roles for the Bush administration, said he does his job based on his experience and management of a large office of prosecutors. He added that deciding whether to prosecute is based on facts and evidence. He also said he had no plans to resign.

"Politics is not a consideration, and public pressure is not a consideration," Sutton said. "Those kinds of things are extraneous, and you just have to put them out of your mind."

"What happens is, the defenders of Compean and Ramos just don't like the result," he said. "They don't like the fact that a jury convicted these two men, and they're willing to change the facts or manipulate the facts to try to get a different result."

Immunity agreement


Hundreds of pages of trial transcripts, exhibits, court documents and reports reveal adrenaline-infused moments of border police work that can cut careers short.
Shortly after 1:10 p.m. Feb. 17, 2005, agents chased a van they suspected of being involved in smuggling undocumented immigrants or drugs back toward the Mexican border near Fabens, east of El Paso. It led to the shooting of Osvaldo Aldrete Davila.

Those involved in the incident agreed Aldrete ditched the van, which carried 743 pounds of marijuana, at the edge of a deep sewage ditch, not too far from the Rio Grande. Other agents involved in the pursuit gave conflicting statements about what they saw or heard. Three testified for the government during the trial after the prosecution gave them "proffer letters" that shielded them from criminal prosecution but not from administrative punishment. The three were later terminated or resigned from the Border Patrol — one of them for violations that included his admission that he picked up some shell casings fired by Compean and threw them into the ditch, where they were never found.

Compean testified he fired at Aldrete as he ran off because he thought Aldrete turned his body toward the agent and appeared to have something "black, shiny" in his hand that Compean believed was a gun. One of the agents who received immunity testified he saw Compean fire several times with his handgun, reload and fire some more.

Ramos testified that he heard gunfire, saw Compean on the ground and fired once because, "I believed I saw a gun."

The agents claimed they did not believe they hit Aldrete because he fled into Mexico. The trial documents say Compean fired 14 times, and that the final shot fired by Ramos was the one that hit Aldrete in the buttocks.

The documents also said Ramos and Compean turned back toward the drainage ditch after the shooting and that Compean picked up some shell casings and threw them into the ditch. The reports they wrote did not mention the shooting.

Border Patrol policy on firearm discharges requires agents to verbally report such incidents within an hour to a supervisor. That didn't happen, the trial documents said, although the agents claimed they did.

The shooting investigation did not start until two weeks later, when Aldrete's family reported it to the relatives of another Border Patrol agent in Arizona who is originally from the El Paso area. That agent made inquiries that resulted in the Homeland Security Department's Office of Inspector General launching an administrative probe.

One thing not directly mentioned in the public records is that Aldrete was named in a U.S. Drug Enforcement Administration report as the alleged transporter of another 750 pounds of marijuana while he waited to testify at the border agents' trial. The November 2005 report identified Aldrete as the person responsible for stashing the marijuana in a van parked at a house in Clint, also east of El Paso, in October 2005, according to a story published Tuesday by the Inland Valley Daily Bulletin of Ontario, Calif.

U.S. District Judge Kathleen Cardone limited the defense's ability to question Aldrete about his alleged criminal activity in detail, ruling that such information would be prejudicial.

Prosecutors gave Aldrete limited use immunity, which shielded him from prosecution for his acts on the day he was shot. Additionally, no charges were filed in the October 2005 incident, infuriating the backers of Compean and Ramos. They claim the immunity deal he was originally given shows it extended beyond Feb. 17, 2005.

A civilian group in California, Friends of the Border Patrol, called for Sutton, his prosecutors and the judge to be fired. Cardone, appointed for life like all federal district judges, had no comment.

"It's clear this was a witch hunt," said the group's head, Andy Ramirez. "They protected a doper."

"We cannot comment about matters that are under seal or ongoing investigations," Sutton said in a statement. "This office will pursue criminal charges where there is prosecutable criminal activity and competent evidence to prove it.

"We have clearly stated that the immunity necessarily afforded to Aldrete in the investigation and trial of Ramos and Compean for the February 17 (2005) incident would not extend to any subsequent or future criminal activity that may be alleged."

At Bush's side


Sutton calls the criticism "ironic," given his office's track record. Justice Department data shows his office last year led the nation's 94 federal districts in drug prosecutions and was second in prosecuting immigration cases.
Sutton has dealt with pressure before, albeit in a less serious role. As a left fielder for the University of Texas — where he said expectations were high — he played on the same baseball team with pitching great Roger Clemens that won the College World Series in 1983.

After choosing a career in law, he worked in the Harris County District Attorney's Office for eight years. It led to positions as Bush rose politically. When Bush was governor of Texas, Sutton served as his criminal justice policy director from 1995 to 2000.

Sutton later was a policy coordinator for the Bush-Cheney transition team before joining the Justice Department as an associate deputy attorney general.

Bush appointed Sutton as U.S. attorney in late 2001. He serves as the chairman of the Attorney General's Advisory Committee, a 17-member body picked by Attorney General Alberto Gonzales. The committee plays a significant role in determining Justice policies and programs and in carrying out the national goals set by the administration.

Despite Sutton's closeness to Bush, some observers note that the fired U.S. attorneys were also appointed by Bush originally. Last week, New Mexico's David Iglesias publicly claimed to have been forced out after refusing a request by two congressmen to rush an indictment that could have helped Republicans in last November's election. Iglesias has refused to identify the two.

The Justice Department staunchly denied the charge that Iglesias or any of the eight federal prosecutors were dismissed for political reasons, according to the Associated Press.

U.S. attorneys serve at the pleasure of the president and can be fired for any reason — or none at all.

Given those circumstances, Carl W. Tobias, a law professor for the University of Richmond in Virginia, said it wouldn't be a stretch to assume that other prosecutors might not rest easy.

"The question is whether the Justice Department will listen to these people who are arguing for his removal," Tobias said of Sutton. "Whether they can get to him and whether the Justice Department would even listen, I don't know, but that's the kind of thing U.S. attorneys are worried about."