Derb,

1. I’ll take that under advisement. I’d similarly suggest that you perhaps consider not distorting a broader argument into a bumper sticker, except that is probably too much to ask (and I confess a fondness for bumper stickers).

By the way, the drug dealer technically did not get off scot-free since he was given only use immunity for his statements not transactional immunity for his crimes. He could still actually be prosecuted if (a) evidence tying him to the van could be located — as long as it was not a product of his immunized statements (e.g., if the “heroes” had shot at him once with a camera rather than 15 times with their guns), and (b) the U.S. could get jurisdiction over him. Of course, pointing this out makes me guilty of your point 4 about failing to see things through the eyes of non-lawyers. The bottom-line, I concede, is that Aldrete-Davila was not prosecuted. I still don’t see how that much helps Compean and Ramos, since the lack of a prosecutable case against him was directly caused by their actions.

2. I don’t know what is up with the transcripts. The one person at the White House I spoke with about the case seemed pretty anxious to have the transcripts released. (I didn’t ask the U.S. attorney about it since it wasn’t, to my knowledge, an issue when I spoke with him.) The lack of a transcript cannot cause a mistrial — many cases are tried without the parties having access to a transcript. As I suggested yesterday, though, if there continues to be no transcript, it could result in a reversal of the convictions on appeal, since the appellate court may find that it can’t adequately review that case in the absence of a verbatim record. (That may have been what you meant by a “mistrial”; if so, it’s a good point.)

Unlike your “certitudes,” mine come from the fact that what I believe about the case — after talking to people who were involved in it (on the prosecution side, admittedly) and reading the same things you have read from the agents and their partisans — lines up with what the jury obviously concluded about the case after spending nearly three weeks of their lives on it. I take it, John, that you haven’t read the transcript of, say, the 1998 embassy bombing trial. Are you telling me that means you can’t be fairly confident you know happened?

3. For about the zillionth time, the Justice Department says (and I’ve heard nothing to contradict this) that Compean admitted Aldrete-Davila attempted to surrender with his arms raised and his palms empty. This was corroborated not only by the testimony of Aldrete-Davila (who claims to have been unarmed), but the testimony of a Border Patrol agent (don’t you think he should get the benefit of the doubt?). It was at that point, when Compean attempted to strike Aldrete-Davila rather than take the surrender, that the latter fled and the shooting started. There is no evidence that Aldrete-Davila shot a weapon, notwithstanding being shot at 15 times. The recovery of the ballistics evidence the agents tried to hide turned up no shell casings from guns other than those of Compean and Ramos. (And, by the way, if the agents had really believed Aldrete-Davila had a gun, they would not have covered up the evidence of the shooting; they’d have arrested him and made sure he was charged with the assault and perhaps even the attempted murder of a federal officer, the use of a firearm during a drug trafficking crime, and the use of a firearm during a violent crime — charges that would likely have landed Aldrete-Davila in jail for decades.)

I suppose, if you want to probe the limits of epistemology, you can probably get me to concede I can’t be absolutely certain I am living, breathing, and typing this. But, yes, Derb, how can anyone really know anything? As it happens, Compean and Ramos were given the benefit of the doubt — they were presumed innocent, the burden of proof beyond a reasonable doubt was on the government, and the jury, unanimously, found that the government met that burden. That’s what happens at a trial.

4. So now we get to the point where the heroes, deserving of and having gotten from an impartial jury the benefit of every doubt, should get a pass anyway since what they did, though obviously wrong, wasn’t “egregiously awful.” With due respect, I think the problem here is your sensibilities, not mine.

Obstruction of justice is a serious offense, but it is more serious when it is done by a public official. The government routinely gives a pass to mob wives, intimidated civilians, and others who intentionally mislead investigators; cops and public officials generally do not get a pass. How heavy-handedly they are treated depends on how serious what they lie about is. Discharging a weapon without reporting it, if you have not shot at someone, is not so serious. Shooting at someone who is not a threat is serious. Doing it 15 times is much more serious. Actually hitting him with one of those shots is extremely serious. (I take it you would agree that if they had killed him, that might have been at least “awful” if not “eggregiously” so … but who knows?). In any event, you think this is nonsense and I don’t — and I doubt most people who took the time to grapple with the facts would. And, while — thanks to Congress’s infatuation with mandatory-minimum sentences – the term here is severe, the logic of your face-stomping example would mean almost no one would ever do time for anything. I know that can’t be right even if 11 or 12 years is too much.

5. Point well taken. I wonder why, though, you won’t give the U.S. attorney credit for clearing many other agents in shooting incidents, including four incidents in which the people they shot actually died. Does he get no benefit of the doubt?