In a fresh outrage, the 5th Circuit Court of Appeals has rendered a 46-page decision upholding the convictions of Border Patrol Agents Ignacio Ramos and Jose Compean.

All convictions were affirmed except those for tampering with official proceedings, which has been remanded for resentencing. In his opinion Judge E. Grady Jolly (a Reagan appointee) wrote: “We leave the major conviction with the major sentence … untouched.” He continued, “The underlying crime of violence with which the defendants were charged is assault within the special territorial jurisdiction of the United States. Once the defendants were charged by the government and convicted by the jury under this statute, the district court had no discretion but to impose at least a ten-year sentence.” 

Court observer Edd Hendee’s analysis raises some concerns. Being present at the December 2007 hearing Hendee says this overly late decision — which should have been rendered in 60 days, not eight months — is not compelling and contains “conflicts of common sense and clear intent of the law.”

Hendee recorded these observations back at the December 2007 hearing:

•    Judge Jolly openly stated it “does seem the Government over-reacted” in this prosecution"
•    All 3 judges aggressively went after the 924C gun charges pointing out that there are no other cases where law enforcement officers were charged with this crime
•    Judge Higginbotham asked U.S. attorney if every policeman who was accused of using unreasonable force should face 924 C charges or were they discretionary;  Judges strongly disagreed with the application of the 924C charges.
•    The judges further raised questions that the witness Davilla was not a low level mule but routinely ran drugs and would have likely carried a weapon in the daily activities of smuggling drugs.
•    There was NO indication that the judges considered the U.S. Attorney’s discretion reasonable or that the 924C gun charges were warranted.

Regardless of their sentiments back in 2007, the court has raised a red flag with their opinion, and by not agreeing that the defendants should have been able to introduce evidence of Osvaldo Aldrete-Davila’s second alleged drug-trafficking incident in October 2005 (months after the February 2005 incident.) And regardless of their own 60-day goal for reaching a decision, the black robes’ eight-month hiatus could also be viewed with great suspicion, given that their previous statements are contradicted by their conclusion, that:

For the most part, the trial of this case was about credibility, and although the jury could have gone either way, it chose not to believe the defendants’ version of the crucial events of February 17. The trial of the case was conducted fairly and without reversible error.

Heartbreakingly, Ramos and Compean remain in solitary confinement, their wives and families devastated emotionally and financially.

Unless enough pressure comes to bear on the White House, this stomach-wrenching affair may never be righted. Pardons and commutations are political and not based on merit. So, even with top republicans now demanding a commutation, the White House continues to sidestep the issue. When Sen. John Cornyn approached White House spokeswoman Dana Perino on the subject, she responded: "There is a process in which people in our country can ask a president of the United States for a commutation of their sentence and that process can take place if those individuals want it to."

How likely is a presidential pardon? The answer: not very. While the president found time to pardon his pal, Scooter Libby, and to contemplate pre-emptive pardons for administration officials in the increasingly unlikely event Congress might demand accountability for wrongdoing in the areas of torture and illegal wiretapping, he is unlikely to get around to pardoning officers Ramos and Compean.

Petitions for commutations are submitted to the Justice Department for investigation and review, but the Justice Department is presently two or three years behind in authorizing the first step of investigations. Meanwhile, the most egregious perversion of the American legal system in recent memory remains, a mockery of the idea of justice.