Ya don’t say:

Federal prosecutors may have overreacted in their case against two Border Patrol agents who were sentenced to lengthy prison terms after they were convicting of shooting a fleeing drug suspect and hiding evidence of the incident, an appeals court judge said Monday.

“It does seem to me that the government overreacted here,” said Judge E. Grady Jolly, one of three judges of the 5th U.S. Circuit Court of Appeals hearing the case of Ignacio Ramos and Jose Alonso Compean.

A federal jury in Texas convicted the agents of assault, obstruction of justice and civil rights violations in the wounding of Osvaldo Aldrete Davila on the Texas border near El Paso in 2005. A federal judge sentenced Compan [sic] to 12 years in prison and Ramos to 11 years…

Jolly, during questioning of Stelmach, said that if the agents had reported the shooting as required, “this prosecution never would have occurred, in all likelihood.”

“For some reason, this one got out of hand, it seems to me,” Jolly added.

So it’s the cover-up and not the crime that gets you?

Back in July, prosecutor Johnny Sutton appeared on Hannity & Colmes to defend both the verdict and sentences in this case. Judge Jolly’s statement today runs directly against Sutton’s defense. At the time of Sutton’s defense on H&C, Patterico wrote an authoritative nuanced take that more or less sided with Sutton, while finding some fault with his as well. One section of that post has bothered me ever since, and I see in today’s action that the ideas behind it are influencing Judge Jolly as well.

Ramos and Compean were prosecuted because their subsequent behavior showed that they didn’t think their shooting was justified.

If Ramos and Compean were the model Border Patrol agents their supporters make them out to be, there is no reason for them to have covered up this shooting. They picked up their casings and didn’t tell supervisors about the shooting.

That’s a prosecutor talking. There is another valid point of view, though. From an officer’s point of view, there may be a motivation (not a good reason, but a motivation) to cover-up a shooting that doesn’t indicate that the officer knows the shooting wasn’t justified. That is the possibility that even if the shooting was justified, the internal investigation of the shooting can end up wrecking the officer’s career anyway. A law enforcement officer who uses his weapon in the line of duty can usually expect months of investigation and confinement to desk duty until the situation is resolved in his favor. He’ll probably have to hire legal counsel to help him get through the investigation, and on a law enforcement officer’s salary, the resulting fees can ruin him financially. And that’s if the investigation goes his way. If it doesn’t, and some prosecutor who has never been in the line of fire finds him at fault, then he gets to go on trial for his freedom. Factor in the international nature of this case and it’s not hard to see why Ramos and Compean may have believed that their actions were justified, yet committed the crime of covering their actions up out of fear that not only would they not be backed up and protected by their superiors, but that they would be sold out by their superiors. And I’m not saying that the superiors are evil here, just that the political environment is what it is, and there’s tremendous political pressure on high level law enforcement officers to prosecute beat officers and little incentive built in to defend them in borderline (no pun intended) cases. Law enforcement officers in the readership can weigh in on whether I’m all wet on this or not.

I’m not saying that the daunting fate what awaits an officer after discharging his weapon is a good reason to cover up his actions, but it may be a motivation that doesn’t indicate guilt in the use of the weapon itself. It looks to me like Judge Jolly sees this possibility as being operative in the Compean/Ramos case and that’s why he said that if they hadn’t covered the shooting up in the first place, there would have been no trial. That tells me that the judge thinks the shooting itself may have been justified. If one of the other two judges on the panel agrees with Judge Jolly, Compean and Ramos may get some justice after all.