Johnny Sutton was a guest last week on Laura Ingraham’s show. (2nd Hour, 20 July 2007) Part of the discussion was about whether Osvaldo Aldrete-Davila (the man whose rights were deprived by Border Patrol agents Ramos and Compean) was armed. Sutton’s line of reasoning went something like this: Only one out of every five hundred drug smugglers (which is what Aldrete inarguably is) is armed. “What this tells us is that smugglers don't carry guns.” And, therefore, Aldrete was unarmed when he was shot by agents Ramos and Compean.

Smugglers don’t carry guns. Therefore, Aldrete was unarmed. Oh, my.

This line of reasoning doesn't work, for two reasons. First, the proposition “Smugglers don't carry guns” translated for purposes of logical analysis, is that “For all smugglers, no smuggler is a gun-carrier.” So goes Sutton’s reasoning. But clearly this in not the case, for Sutton has already informed us that in fact one in five hundred smugglers does in fact carry a gun. “Smugglers don’t carry guns” (or, “For all smugglers, no smugglers is a gun-carrier”) is a universal negative. But this sort of proposition is unwarranted by the justification (i.e., one of five hundred smugglers carries a gun). The proposition warranted by the justification is “For all smugglers, some smugglers are gun-carriers”, a particular affirmative.

So in reality the most Ramos and Compean could know is that most smugglers don't carry guns. But since (as Sutton admits) one in five hundred smugglers does carry a gun, they had no reason to think that Aldrete would not be that one in five hundred. The question is not how many smugglers in a sample have been found with firearms. The question is whether Aldrete was armed when he was shot, or at least whether Ramos and Compean had reason to believe he was armed. (You know, like when he turned and pointed – something – at them.)

The second problem with Sutton’s reasoning is that it shifts the burden to the defense. In our system, the burden of proof is upon the prosecution. The accused is innocent until proven guilty. If part of the prosecution’s case against Ramos and Compean is that Aldrete was unarmed and therefore they shot an unarmed man, thus depriving him of his rights, then they have to prove not that Aldrete was probably unarmed (because only one in five hundred is armed) but that he was, in fact, unarmed. The way Sutton has it, the prosecution has only to present some statistics about the number of smugglers who have been armed (even if those statistics are uncontested), leaving it to the defense to prove that in this case the smuggler in question was armed.

If Sutton’s reasoning here is an indication of how prosecutors (and jurors) think the burden is met, then I fear for anyone who’s ever accused of a crime.