A Mexican man who was convicted of murdering a U.S. Border Patrol agent successfully showed he was provided ineffective counsel, a U.S. appeals court has ruled.
The court overturned the man’s murder conviction.
Heraclio Osorio-Arellanes in 2010 took part in an exchange of bullets with U.S. agents in Arizona, in mountains south of Tucson. Brian Terry, one of the agents, died. Terry’s death led to the discovery that a U.S. government operation dubbed “Fast and Furious” lost track of guns, including firearms that were found at the scene of the 2010 firefight.
After the exchange, Osorio-Arellanes fled to Mexico, where he remained for nearly seven years before he was arrested.
Inside a Mexican prison, following advice from his attorney, Osorio-Arellanes confessed to crimes. He was extradited to the United States and convicted.
Osorio-Arellanes said his rights under the U.S. Constitution’s Sixth Amendment were violated, meaning he should receive a new trial. The amendment provides for assistance of counsel.
A U.S. district judge disagreed, siding with the government against Osorio-Arellanes, but the majority of an appeals court panel ruled on Aug. 9 in favor of the Mexican native due to the advice given by Mexican lawyer Juan Salvador Pimentel.
“The interrogation transcript shows that Pimentel’s advice was so inadequate that it obviously denied Osorio’s Sixth Amendment right to effective assistance of counsel,” U.S. Circuit Judge Michael Daly Hawkins wrote for the majority.
Pimental said in part: “how is it possible for you to rob somebody ... who was carrying out an illegal activity ... there’s no crime for another crime, right? So since they’re alleging that you’re affecting ... the drug runner’s trade ... it will not affect you if you tell them about it.”
Hawkins was joined by U.S. Circuit Judge Roopali Desai.
The majority emphasized that the case is not necessarily over.
“Our holding does not decide Osorio’s ultimate responsibility for his actions. The government can still retry this case,” Hawkins wrote. “Nevertheless, his direct appeal reaffirms the potency of our Constitution’s procedural protections for criminal defendants, which ‘are granted to the innocent and the guilty alike.'”
U.S. Circuit Judge Andrew D. Hurwitz in a dissent noted how U.S. agents prior to Osorio-Arellanes’ confession warned the man that he had the right to remain silent and that he was able to speak to a U.S.-trained lawyer before answering questions.
Hurwitz added later that he would uphold the district court ruling at this time, although he might eventually side with the convict.
“Even if the transcript is properly considered, it contains no statement by Osorio that the Mexican attorney’s advice caused him to make the relevant admissions. Although that is a reasonable inference from the transcript, it is only an inference; neither Osorio nor his Mexican attorney ever so stated, either in the transcript or anywhere else under oath in these proceedings and the arguments of his present counsel are not evidence,” he wrote. “In my view, we would benefit from factual development of the record—and the findings of a habeas court—before reaching this conclusion.”
