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Dallas Morning News August 15, 1997

Marine avoids indictment
Panel says he followed rules in border shooting

By David Mclemore / The Dallas Morning News

MARFA, Texas - Concluding two days of testimony, a Presidio County grand jury declined to return criminal charges in the shooting death of a young goat herder by a Marine on an anti-drug patrol along the border.

District Attorney Albert Valadez read a terse message at about 8:45 p.m. Thursday that the 12-member grand jury had less than the nine votes necessary to return a criminal indictment against against Cpl. Clemente Manuel Banuelos in the May 20 shooting of Esequiel "Zeke" Hernandez, 18, a Presidio High School sophomore.

"The grand jury believes that Cpl. Banuelos was acting reasonably in defense of a third person when he fired the fatal shot," Mr. Valadez said. "They also believe that Zeke raised his rifle at the moment he was shot."

The grand jury reviewed evidence beginning in the morning Thursday. It had recessed July 30 without returning an indictment following more than seven hours of testimony and evidence, including photographs of the shooting scene, lab reports, and several audio and video tape recordings.

The shooting occurred May 20 when Mr. Hernandez crossed paths with a Marine patrol while he worked his family's goat herd in the brushland outside the border village of Redford, not far from the Rio Grande.

According to the Pentagon, Cpl. Banuelos fired once with his M-16 rifle at Mr. Hernandez, who had raised his .22-rifle toward the Marines after firing at them twice earlier.

Mr. Valadez also said the grand jury believed that Mr. Hernandez had fired first but did not conclude he shot at the Marines intentionally.

"The grand jury also believed Cpl. Banuelos and the other Marines were following the rules of engagement while following Zeke," Mr. Valadez said.

Mr. Valadez then left without taking questions from reporters gathered outside the courthouse.

Houston attorney Jack Zimmermann was nearly in tears as he left the courthouse after a quick phone call to Cpl. Banuelos, who was in California where his unit is based.

"This means no crime was committed. This is a night that makes me proud to be a Texan to see a grand jury who worked so hard on one case and a district attorney who had the courage to present all the evidence and let justice be done," Mr. Zimmermann said.

Cpl. Banuelos and his wife, Luz, reacted to the news first in silence, Mr. Zimmermann said.

"They then both expressed relief that it was all over and that the stress would be off, he said. "I don't think this has sunk in."

The Hernandez family left the courtroom unseen. The Rev. Melvin LaFollette, who heads the Redford Citizens Committee for Justice, said, however, that the fight to bring justice in Mr. Hernandez's death has just begun.

"This verdict comes as no surprise," Father LaFollette said. "But this is not the end."

He said the committee would seek a new grand jury to reopen the investigation, as well as ask a state judge to convene a court of inquiry.

The group also said it would petition for a federal civil rights investigation into the shooting and the subsequent investigation.

Earlier, Hernandez family members said they believed the Marines stalked Mr. Hernandez and killed him in cold blood.

As they entered the courthouse Thursday, Mr. Hernandez's mother said in Spanish, "There is a silence in my life since they killed my son. All we want is justice, and I don't know that justice will be done here."

The grand jury included a retired Border Patrol agent, two customs inspectors and the Border Patrol assistant chief in Marfa.

County Judge Jake Brisbane credited both the grand jury and the district attorney for conscientious work.

"My greatest concern is that now, there will be a perception that all the facts didn't come out and will create an atmosphere of conspiracy theories," Judge Brisbane said. "That will only further divide this community."

During proceedings Thursday, three of Cpl. Banuelos' fellow Marines testified under immunity from prosecution.

They said they had received permission to load their rifles and defend themselves against a suspected drug smuggler, attorneys reported of the proceedings, which are closed to the public.

"These four young Marines did that night exactly as they had been trained. They followed their orders after being fired upon that night," Mr. Zimmerman said.

Cpl. Roy Torrez Jr., 19, Lance Cpl. Ronald Wieler Jr., 21, and Lance Cpl. James Blood, 22, testified for more than an hour each about their roles in the shooting.

Cpl. Banuelos did not appear before the grand jury.

As the grand jury reviewed the case, Conroe attorney Jerald Crow, representing Cpl. Blood, said the Marines simply followed procedure for military forces sent to the border to assist civilian law enforcement in combating drug smuggling.

"There was no criminal conduct on the part of any of them in this tragedy," Mr. Crow said. "They were given extensive briefings on what to expect before they were put on the border, both on smuggler tactics and the use of armed scouts by smugglers along that stretch of river.

"The night of the shooting, as they were required, they reported to both the Border Patrol and the Joint Task Force-6 patrol centers the first time they were fired upon and the second time," Mr. Crow said. El Paso-based Joint Task Force-6 is the cooperative federal office that coordinates drug interdiction efforts with civil authorities.

"Audio tapes of those call-ins to the centers show these guys were not even allowed to carry loaded weapons without orders," Mr. Crow said. "They received those orders after they had been fired upon. They were then given permission to load their weapons and take defensive action."

The four Marines were each represented by a civilian attorney hired by the Justice Department, which had faced a possible conflict of interest defending the soldiers and Mr. Hernandez's civil rights.

The three Marines in Marfa had little to say following their testimony. All expressed sorrow over Mr. Hernandez's death and the grief caused his family. But each said he felt his actions were justified.

"Clemente saved my life. I would do the same for him," said Cpl. Blood. "I don't think he should be charged with anything."

Following the May shooting, Secretary of Defense William Cohen temporarily halted all ground troop deployment in support of civilian law enforcement.

This article copyright 1997 the Dallas Morning News and is reproduced for non-profit educational purposes only.

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