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Doubts raised on self-defense in border case

Prosecutors report 18-year-old not aiming at troops when shot

Copyright 1997 Houston Chronicle San Antonio Bureau

SAN ANTONIO -- An armed teen-ager killed by a military anti-drug squad near the Mexican border last month was not aiming at the Marines when he was shot, prosecutors said Tuesday, contradicting statements that the troops acted in self-defense.

Tests on the rifle belonging to 18-year-old Ezequiel Hernandez revealed an empty shell. That finding along with a shell casing found near where the high school sophomore died seems to corroborate the military's claims that the teen-ager fired two shots in the incident near Big Bend National Park.

It is the first time since the May 20 killing that prosecutors have acknowledged Hernandez, a U.S. citizen, fired the shots. Perhaps more importantly, though, it is the first time officials have said he was preparing to fire a third time -- away from the soldiers.

Prosecutors said the angle of Hernandez's bullet wound is inconsistent with the soldiers' reports of where they were when the teen-ager, who had been tending his family's goats, allegedly aimed his rifle at them for the third time.

"That's my biggest problem with the (military's) case," said James Jepson, first assistant district attorney in Fort Stockton. "The angle is consistent with him pointing away from the Marines. He would have to have been shooting away."

In addition to Jepson's contention that the teen-ager was not aiming at the Marines, the first sheriff's deputy on the scene said he was not told Hernandez had been shot until at least 15 minutes after he arrived.

The Marines and U.S. Border Patrol agents on the scene had requested a medical helicopter but failed to brief sheriff's Deputy Oscar Gallegos. Because the bleeding was mostly internal and the soldiers offered little information about the incident, Gallegos said he had no reason to believe the youth had been shot. He told paramedics by radio that Hernandez had fallen in a well and hit his head.

"It could hint of a cover-up" by the military, said Rusty Taylor, Presidio County chief deputy sheriff. "Or maybe they were just scared."

A spokeswoman for Joint Task Force-6, the military unit that coordinates anti-narcotics and other operations along the U.S.-Mexico border with federal officials, refused to comment Tuesday.

"We're awaiting the results of the investigation by the Texas Rangers," said Maureen Bossch from Fort Bliss in El Paso. The task force also is investigating the incident.

Texas Ranger Capt. Barry Caver has expressed his own doubts about the military's version of what happened, saying several days after the shooting that the state's preliminary investigation conflicted with Marine Col. Thomas Kelly's explanation.

The Marines must obtain permission from landowners before conducting exercises on their property. Kelly said they had permission, though he would not say from whom. But Hernandez was shot on the property of Albert Carrasco, who said he never authorized the exercises.

Still, Kelly has said he is satisfied with the Marines' version of what transpired. After expressing his sympathy to the friends and family of Hernandez, who had no criminal ties, Kelly said the soldiers had no choice but to shoot the teen-ager after he opened fire on them.

Military operations in the region were suspended after the shooting and the team of four Marines involved was immediately sent home to Camp Pendleton, Calif. But prosecutors, who are expected to bring the Hernandez case before a grand jury next month, say they are dissatisfied with the way the Marines closed the case so quickly.

"The Marines came up with their own conclusions within days of this happening," Jepson said. "That's where (District Attorney Albert) Valadez had a problem."

Jepson said he may subpoena military records on the events surrounding the Redford shooting, including documents on why the four soldiers were reassigned with such apparent haste.

"I'm considering lighting a fire under the military," he said.

Hernandez is the first U.S. citizen to be shot by a military drug surveillance team on the border. Described by friends and family as an easygoing, quiet youth, he was killed while herding goats in the desert hills that surround his family's cinder block house.

The second shooting involving soldiers along the border this year -- the first involved a Mexican national -- the Hernandez case has heightened debate over the role of the military along the Texas-Mexico frontier.

Law prohibits soldiers from involvement in domestic affairs, but such restrictions were loosened in the early 1980s, largely to bolster the law enforcement presence along the border.

Though soldiers are only allowed by law to fire in self-defense, critics say the death of Hernandez is a direct result of the blurring of the lines between the military and domestic law enforcement.

"Soldiers aren't trained to deal with civil disorders," said retired Vice Adm. Jack Shanahan, director of the Center for Defense Information in Washington, D.C. "They're trained to kill people."

Border Patrol and federal drug enforcement agents, however, say drug traffickers have become so sophisticated and well-equipped that the United States has no choice but to increase manpower along the border. They say the military provides valuable reconnaissance skills.

But the 700 soldiers assigned to the Joint Task Force 6, about 125 of whom are working along the U.S.-Mexico border, operate in a highly secretive manner, mostly working undercover. The Marines in Redford wore camouflage uniforms and netting with twigs and leaves over their heads.

Though Kelly insisted Hernandez knew who he was firing at, Jepson said that if the youth had been firing at the Marines at all, he might not have known they were soldiers. Hernandez was more than 200 yards away.

"I'm an avid hunter," Jepson said. "And I'm not sure I could have recognized those four guys."

This article copyright 1997 the Houston Chronicle and is reproduced for non-profit educational purposes only.

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