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THE BURDEN OF PROOF

 

By “Mark Andrew Dwyer”

 

March 29, 2007

(Updated September 25, 2007)

 

 

Ignacio Ramos and Jose Alonso Compean, Border Patrol ex-agents convicted by a U.S. court for shooting and wounding a Mexican drug smuggler, Osbaldo Aldrete-Davila, during his commission of crime, are serving harsh ten to 11 year sentences in federal prison. The “suspect”, a well known Mexican drug cartel member and a notorious illegal border crosser, remains at large waiting for another opportunity to smuggle a truckload of narcotics into the U.S. Meanwhile, the public outrage with the federal authorities that, despite massive violations of this nation’s borders by millions of illegal "immigrants", commit their inadequate (or so they claim) manpower to prosecution of sworn defenders of the American border rather than to catching illegal entrants and smugglers, mounts as more and more disturbing details of this blatant travesty of justice are being brought to light.

 

As I indicated in my earlier commentary on this subject (see [1]), the basis for the agents’ prosecution and convictions was a misinterpretation of the U.S. Constitution by the U.S. Court and by the U.S. Attorney Johnny Sutton (and his subordinates) who entertained the canard of illegal entrant’s “civil rights” that the ex-agents allegedly violated. This absurd assertion (“civil” means “of or relating to citizens”, and “civil rights” movement was a movement of black citizens of the U.S. against segregation) contradicts several well-known opinions of the Supreme Court and (past) White House administrations that illegal aliens generally do not enjoy all the Constitutional rights while in the U.S. (see footnotes in [1] for detailed rationale and exact quotations from Supreme Court’s rulings). In particular, Fourth Amendment protections apply only to the members of “national community” (the Supreme Court’s language) that consists of U.S. citizens and, to some extent, legal residents in this country.

 

To add an insult to injury, Mr. Sutton, supported by former supervisor of the ex-agents, Border Patrol Chief Barker (watch [2] for his statement), invented quite novel legal doctrine in order to justify the mentioned above travesty of justice. He and chief Barker claim now that the ex-agents failed to prove in the court of law that the shooting of the smuggler was justified by the circumstances, as if presumption of ex-agents’ guilt was the point of departure for the entire process (which it probably was). I was left speechless.

 

Imagine this. In the middle of a night, a notorious burglar broke into your house and is now pointing at you an object that looks like a gun. So, you shoot and wound the mother sucker with your .38 special S&W revolver that you kept under your pillow and the suspect flees. Few days later, a U.S. attorney who traced the burglar on a tip from his buddy and granted him immunity from prosecution for burglary in exchange for his testimony, charges you with violation of intruder “tenant's rights”. Before you can say “Second Amendment”, you find yourself in the middle of a criminal trail against you that, eventually, sends you for 11 years to a federal prison. Well, it turned out that you were unable to prove that you acted in self defense, and your assurances in front of the court that you did were dismissed based on the intruder's testimony. He maintained that, first, you invited him to your house, and second, that you shot him when he wanted to peacefully surrender to you while running away. Since you haven’t presented any evidence to support the claim of your innocence, the jury, unaware of the intruder’s criminal record, found you guilty as charged (so much for your presumption of innocence), and the judge “enhanced” your sentence with mandatory penalty (ten years) for a use of a firearm during commission of a crime (a circular argument in itself2).

 

As absurd as the above story may seem to you, that’s exactly what Mr. Sutton and Chief Barker have been doing. Despite the fundamental “innocent until proven guilty” doctrine1  that has long been accepted in the American jurisprudence, they skillfully shifted the burden of proof from the prosecution to the accused, apparently stipulating on national TV (as visualized in [2]) that if the ex-agents shot the smuggler in self defense then they had a duty to prove it (which they, apparently, didn’t). When I watched chief Barker de facto dismissing off-hand the presumption of innocence doctrine1 during his interview by Lou Dobbs (see [2] and judge for yourself) I hoped I would never be subjugated to the judgment  of such a narrow-minded individual like he was, or else I might find myself a part of yet another travesty of justice.

 

The entire affair (the unjust conviction of ex-agents and their undeservedly harsh punishment) becomes even more disturbing under the circumstances of the scandal that has been brought to public attention earlier this month. It turns out that the U.S. Department of Justice fired eight U.S. Attorneys for purely political reasons, and the Attorney General, Alberto Gonzalez, made “[not] accurate” statements in front of the U.S. Senate regarding his role in the firing (see [3] for details) as well as the reason for it. Initially, Mr. Gonzalez maintained that he was not aware of the firing, and that the fired attorneys were dismissed based on their (unsatisfactory) performance, only to admit later that he was aware of it and that “performance considerations” and “political reasons” were virtually synonymous notions in this context. In other words, the Attorney General’s idea of the effective federal law enforcement is that the U.S. attorneys must follow the political directives from the White House and DOJ rather than dutifully prosecuting all violations of the federal law (never mind his later change of testimony).

 

It’s pretty scary, isn’t it? We knew of this kind of “political justice” in the former Soviet Union and its satellite socialist “democracies”, but in the U.S. anything of this kind seemed utterly out of place, at least up until now. Taking into account President Bush’s stubborn refusal to enforce the Mexican-American border and the part of the immigration law that mandates deportation of illegal border hoppers, as well as obedience of his servant Attorney General in this respect, Mr. Sutton blatant disregard of national priorities (defend the country first and worry about over-zealous border enforcement, if any, later) must surprise no one. It has all appearances of a symptom of a well orchestrated effort (should I say: conspiracy?) at the highest levels of American structures of power that aims at sacrificing our national sovereignty on the altar of corporate profits. Quite obviously, for anyone who thinks that this country must yield to the “necessity” of free movement of merchandise and labor, and that America is but a market that needs to be unionized (“harmonized” is the euphemism that is usually use in the official language; see [4]) with Mexico and Canada in order to increase its profitability, ex-agents’ attempt to obstruct the free flow of goods and people between Mexico and the U.S. must have appeared as an impediment that deserves stern discouragement.

 

As to Mr. Gonzalez and the firing scandal that he has been in the center of, several U.S. Senators, both Democrats and Republicans, have already demanded his resignation, which he flatly refused so far. No surprises here. I think that it’s equally likely that Mr. Gonzalez will resign anytime soon as it is that millions of illegal Mexican “migrants” will stop, all of the sudden, violating our country. According to some students of Mr. Gonzalez biography, he himself is a son of an illegal “migrant” from Mexico and it shows: Mexican “migrants” are notorious for their proverbial stubbornness.

 

______________

 Notes. 1The “innocent until proven guilty” doctrine, also known as the presumption of innocence, which has been central to the American criminal justice system, rests the burden of proof with the prosecution and not with the accused. If the prosecution fails to prove, beyond reasonable doubt, that the accused is guilty as charged (which responsibility includes a proof of criminal intent of the accused), the court, according to that doctrine, shall acquit the accused. Any requirement that shifts the burden of proof from the prosecution to the accused (for instance, by stipulating a proof of innocence of the accused as a necessary condition for his acquittal, an implication that has been clearly made by Chief Barker during his interview [2], and then echoed by Mr. Sutton at a later phase of the same program) violates his presumption of innocence and de facto introduces the opposite presumption, of his guilt into the legal process. Unfortunately (or, illogically), a court will rarely grant the presumption of innocence to the accused who claim that they had committed a homicide in self-defense, and only under certain circumstances, or else the court will require a proof of deemed necessity (as perceived by a “reasonable person”) of a deadly force. Although some may argue that in prosecution of homicides and other cases of similar gravity, court’s reluctance to fully grant the presumption of innocence to the accused who claims self-defense is a draconian but necessary measure without which conviction of a murderer would be virtually impossible (never mind the burden of proof of his/her criminal intent that, theoretically, still rests with the prosecution), it appears utterly unfair and out of place in the U.S. in cases of lesser charges, like in the case of the ex-agents (assault with a deadly weapon and violation of “civil rights” of the alien criminal). Moreover, it seems clear to the author of this writing that American national interest does require that such a presumption of innocence (as pertaining to self-defense) be given to border enforcement personnel while preventing border violations by criminal entrants, just like it is customarily given to a resident in cases of home invasion (just to name one example), without which any meaningful border enforcement against numerous and determined violators may soon turn virtually impossible. Such a presumption may be later disproved, if actually false, by the prosecution, based on the facts presented during the trial. It is one of the most fundamental duties of a jury to determine whether or not a “reasonable person”, out of genuine fear of being killed or seriously injured, would be compelled to use a deadly force (which in the case of ex-agents turned out not quite deadly) under the same circumstances as the accused was exposed to, but, according to trial transcripts, the jury in this case was kept ignorant of the border violence and grave risk of death or great bodily injury that the ex-agents were subjected to while performing their duties, as well as of criminal past of the smuggler and his affiliation with Mexican drug cartel notorious for its violence. As a result, the jury must have had rather fuzzy idea of what a reasonable person in shoes of the ex-agents would do under the circumstances. It’s worth noting that, contrary to common belief, neither the phrase “innocent until proven guilty” nor the presumption of innocence (never mind the individual right to self-defense) appear in the language of U.S. Constitution and the Bill of Rights, which leaves room for their different, sometimes contradictory, interpretations. The “innocent until proven guilty” doctrine and the right to self-defense predate the U.S. Constitution and are ones of the individual rights protected by 9th Amendment that reads: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

 

2(Added Sep. 25, 2007) The argument is circular because it concludes that the discharge of a firearm by the agents must be characterized as "while commission of a violent crime", even if no crime has been committed, except, perhaps, for the allegedly criminal discharge of the firearm. In other words, the prosecution argued that if someone fires a firearm and this act is later presumed unlawful then the perpetrator automatically qualifies for 10 years sentence self-"enhancement" due to the discharge of the firearm "while commission of a violent crime", which, in turn further "proves" that the said discharge was a violent crime "eligible" for 10+ years prison sentence. This way anyone who fires a firearm (try to convince a jury that firing a gun is not a violent act, particularly if considered a crime) can end up spending 10 years in penitentiary even if no crime (other that the very firing of the firearm) has been committed. Fortunately, agents' defense lawyer, J Mark Brewer, noticed this circularity of indictment and used it a basis for an appeal that he filed on behalf of the agents. The appeal points out that the agents "were charged with a nonexistent crime and convicted after the jury was given improper instructions by the trial judge" and that they were charged "under a federal statute [a self-enhancing effect of which has been pointed out above] with the discharge of a firearm in relation to a crime of violence, but the statute does not define a crime and contains only a sentencing factor to be addressed after conviction." (See [5] for more details.)   [top]

 

    

 

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REFERENCES

 

[1] The Blessings of Liberty

http://oocities.com/readerswrite/commentaries/Blessings_of_the_Liberty.htm

 

[2] Lou Dobbs Special -- CNN -- March 27 (video clip)

http://americanpatrol.com/WMV/070327-DOBBS-SPECIAL/1.wmv

 

[3] Ex-Aide: Gonzales Signed Off on Firings

http://www.breitbart.com/article.php?id=D8O624VG0&show_article=1

 

[4] Bush Administration in Denial of ‘North American Union’ Plans

http://www.newswithviews.com/DeWeese/tom63.htm

 

[5]  Ex-border agents appeal convictions

http://www.washingtontimes.com/apps/pbcs.dll/article?AID=/20070924/NATION/109240047/1002&template=printart

 

 

Past commentary (January 28, 2007) STEALING THE AMERICAN DREAM

 

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