Derb, Life is short, so I hadn’t gotten around to your piece about my piece until now. A few points in rebuttal.

1. Your critique of my point about the propaganda version is weak — even by your own rendition of it. First, as you note, I said the propaganda version consisted of two elements: (a) the agents are heroes and (b) the doper got off scott-free. You point out, quite incompletely, that I concede one of those elements, viz., the doper got off scott free. Therefore, you somehow conclude, “‘the propaganda version’ is, um, true.” Well, um, no. I will not try to compete with your mathematical wizardry, but I’d say you’re at least one premise short.

And even where you say I’ve conceded the point on the doper, your argument is misleading. As anyone who reads the (admittedly long) piece will see, my argument is that while the propaganda version holds that the main reason the doper got off was that the prosecution opted to give him a walk, the true version is the main reason is that the two “heroes” failed, twice, to do their sworn duty and arrest him so he could be prosecuted — the second occasion, opting not to scoop him up because they were too busy scooping up forensic evidence that they had improperly discharged their firearms at a fleeing, unarmed man.

Had they believed they’d acted properly, of course, they’d have arrested him and let the chips fall where they might on the shooting. But no, they opted to obstruct justice and lie to the investigation — both felonies. I realize that this is the Libby-era at National Review, where those charges are not regarded as serious as long as the commentator in question decides the investigation shouldn’t have been done in the first place. But many of us still believe that obstruction of justice and false statements are pretty eggregious acts for public officials to commit even if we are not crazy about the underlying investigation.

2. The court transcripts are the province of the court to release, not the prosecution. Investigations are executive branch affairs. Trial transcipts are the domain of the court. If they have not been released (and I don’t know whether they have or not — thus answering your question about whether I’ve personally reviewed them), it is because the judge has not released them. There can be very innocent reasons for that (e.g., the court reporter did not prepare a transcript from the transcription notes at the time of the trial; or the judge makes it a practice not to release the transcript until he or she has reviewed it, and that hasn’t been done yet), or more intriguing reasons (e.g., one of the parties has requested that some or all of it be sealed temporarily and the judge believes the request has merit).

I fully agree that this is a ridiculously long time for a transcript not to be publicly available — sentencing, after all, has taken place and the defendants, presumably, are going to appeal, meaning there must be a transcript for the court of appeals to review. I wish they’d release the transcript so we could all see what it actually says.

My recitation of the facts was based on public interviews with the two agents and a lengthy interview with (as well as review of the public information about the case put out by) the U.S. attorney. He notes, for example, that Compean, after first lying about whether there was even an incident, ultimately admitted that Aldrete-Davila had tried to surrender to him (arms up and palms empty) — testimony that was corroborated not only by the doper but by one of the Border Patrol agents who witnessed it.

As far as Ramos is concerned, the jury’s conviction of him on several charged offenses is rational only if the jurors rejected his version of events. (If the jury believed the doper had had a gun and that Ramos acted in self-defense, it would have been irrational to convict him, for example, of the assault and civil rights violations.) Jury’s resolutions of credibility and sufficiency of the evidence issues are nearly unreviewable. As the jury of 12 impartial Texans spent nearly 3 weeks considering the case, I feel quite comfortable accepting their verdict as resolving the fact disputes (just as I accept their acquittal on the attempted murder count).

3. I think your point about prosecutors tending to sympathize with each other is well taken. But prosecutors also tend to sympathize with agents, and, for what it’s worth, I am much more sympathetic to agents than most prosecutors are. (Many prosecutors become defense lawyers after a few years; agents tend to be good solid law enforcement people for life, and I — having, alas, eschewed the lucrative life of the defense lawyer – tend to be more at home with their view of the world.)

I did try to check my prejudices on this one, and with agents I have always drawn the line at obstruction of justice. My sense is that Sutton is the same kind of guy (I don’t pretend to know him well). He has a pretty solid record of defending agents — including in four shoots where Border Patrol guys actually killed people in border incidents. I think (and hope) that influenced me more than the mere fact that Sutton is a prosecutor. But the question whether I am doing the work of the guild is a fair one — it’s certainly one I hope I’d be asking. I’ve tried to be objective, but it’s really for others to judge how successful I was at that. (I take it you’re voting “not so successful,” John!)

I went into this thinking the agents had been hammered too hard. I still think 11 and 12 years is an awful lot, and that the decision to bring the severe firearms charge (the one with the automatic 10-year consecutive sentence) is a judgment call that could have gone either way. But these guys nearly killed a man who had tried to surrender, obstructed justice, and — if you accept the jury verdict — perjured themselves at the trial. Their conduct, to the extent it becomes well known, will make it harder for honest agents to get violent felons to surrender rather than fight it out. Especially given that they declined a very favorable plea offer, I can’t pretend to have a lot of sympathy for them over the sentence, even if it’s longer than I may think the case deserves.

4. Derb, as far as unjustly being accused and thus not pleading a case out is concerned, you have a fair point on the counts based on the inane (but unfortunately true) fiction that an illegal alien here only to traffic in drugs has constitutional rights. However, the obstruction of justice and lying to the investigation counts were supported by overwhelming evidence (even now, the agents’ partisans don’t dispute that — they just minimize its importance). The agents should have taken the plea (they’d by now be out of jail and on with their lives). Since they didn’t take the plea, DOJ threw the book at them. That’s usually the way it goes.

5. As I understand it, the agent of the year stuff is just not true. It is true, however, that one of the agents had prior arrests for violating court restraining orders, and was also disciplined by his agency for failing to report the arrests — which, as all law enforcement people are aware, is a major no-no.

6. Your point about how the agents managed to stay agents for so long if they were unfit is very unpersuasive, especially given your worldliness (which I much admire) and your agreement with me about the out-of-dimension strength of labor unions. The fact is that most sub-par officials do not get drummed out of the corps until they both do something outrageous that hurts someone else and get caught at it. This is human nature, and applies with equal force in other areas — do you think Al Capone was an overrated mobster just because it took a couple of decades to get him … on tax evasion?

See you at supper.