WASHINGTON — Federal prosecutor Johnny Sutton found himself on the receiving end of a Washington-style cross-examination Tuesday as members of the Senate Judiciary Committee vigorously questioned his prosecution of two Border Patrol agents imprisoned for wounding a Mexican drug courier.
Sen. Dianne Feinstein, D-Calif., who chaired the three-hour hearing, said the U.S. attorney from San Antonio engaged in "prosecutorial over-reaction." She also challenged his office's decision to prosecute agents Jose Compean and Ignacio Ramos under a firearms statute that mandated a minimum 10 years in prison.
"That's a huge penalty," she said.
The wives of the two agents were seated in the packed hearing room as Sutton made his first congressional appearance to discuss the case. At one point apologizing for "my passion," the federal attorney strongly defended the prosecutions against two lawmen who he said "crossed the line."
"They are not heroes," Sutton said of the agents. "They deliberately shot an unarmed man in the back without justification, destroyed evidence to cover it up and lied about it. These are serious crimes."
Ramos and Compean have been in prison for nearly six months after an El Paso, Texas, jury found them guilty of shooting Osvaldo Aldrete-Davila in the buttocks on Feb. 17, 2005, after he abandoned a van loaded with marijuana near the U.S.-Mexican border in west Texas. Aldrete-Davila fled across the border and later became a key witness against the agents, testifying under immunity.
The case has prompted an outcry in some circles of Congress and among conservative grassroots advocacy groups, who contend the two agents were the victims of an out-of-whack judicial system and should be pardoned or have their sentences commuted.
Sen. John Cornyn, R-Texas, who requested the hearing before the Democratic-controlled panel, said the case is symptomatic of the "distrust" toward government because "the public sees two Border Patrol agents serving long prison sentences while an admitted drug dealer goes free."
Cornyn also expressed "serious concerns about the judgment calls made during the prosecution of this case" and joined other members of the panel in questioning Sutton's decision to grant Aldrete-Davila immunity. Sutton said he effectively had no choice since the fugitive was the key witness against the two men.
Sutton was also grilled extensively about a DEA investigative report that Aldrete-Davila transported another load of marijuana, valued at $600,000, nearly eight months after the shooting incident, apparently while the witness was allowed to enter the United States on a temporary visa.
Sutton said the information about the second marijuana load was presented to the El Paso trial judge, who ruled it was irrelevant to the case involving the two agents. The federal prosecutor told the lawmakers that he was otherwise prohibited from discussing the second marijuana seizure because it remains under investigation.
Agents seized 752 pounds of marijuana from a stash house in Clint, Texas. The occupant of the house identified "Osvaldo Davila" as the individual who dropped off a 1990 Chevrolet Astro van containing marijuana.
Ramos is serving 11 years in federal prison in Mississippi, while Compean is serving 12 years at an Ohio prison, both on multiple counts. Their wives — Monica Ramos and Patty Compean, both of El Paso — said their husbands are stoically dealing with their confinement while their supporters work toward their release. Both defended the agents as honest lawmen who were unjustly prosecuted by Sutton's office.
"They chose to take the word of a smuggler," Patty Compean said after the hearing.
Some of the harshest criticism against Sutton came from two California Republican House members, Duncan Hunter and Dana Rohrabacher, who appeared as witnesses. Both assailed the case as an appalling miscarriage of justice, with Rohrabacher saying the lives of the agents and their families were destroyed by "elitist, arrogant and overreaching prosecutors."
But Luis Barker, former deputy Border Patrol chief, sided with the prosecutor and said the two agents wrongfully used deadly force and violated department policy by failing to report the case. The two agents testified that they thought Aldrete-Davila had a gun, but Sutton and Barker said the facts didn't support their claim.
Feinstein repeatedly pressed Sutton on various aspects of the case and, at one point, chided him when he mentioned his office's pursuit of Mexican drug cartels.
"You weren't going after cartels in this case," said the California Democrat. "You were going after Border Patrol agents."
Feinstein and other committee members questioned the prosecutor's decision to charge the agents with discharging a firearm in a crime of violence, a law often reserved for drug operatives or career criminals, which carries a mandatory 10 years in prison. Sutton said his trial team made that decision, but he endorsed it.
"It's a lot of time," he conceded. But, he said, "there are a lot of people in this country who believe these guys should be in prison for a long time."