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Dallas Morning News August 16, 1997

Civil rights reviewed in border case
Family of slain teen says justice not done

By Bruce Nichols and David Mclemore / The Dallas Morning News

Federal prosecutors said Friday that they are looking into possible civil rights violations in the shooting death of a teenage goat herder by a Marine patrol near the Rio Grande.

The Justice Department's civil rights division has been reviewing the death of Esequiel "Zeke" Hernandez but was "taking a backseat role" to allow the local district attorney to complete his investigation, said Daryl Fields, a spokesman for the U.S. attorney's office in San Antonio, which oversees West Texas.

Mr. Fields said that "we will probably start picking up on our end" now that a grand jury in Marfa declined to issue criminal charges in the May 20 shooting.

"What may come out of that investigation is speculation ... but we are looking into the matter," Mr. Fields said.

Mr. Hernandez, 18, was killed after crossing paths with a four-man Marine unit assigned to watch a suspected drug smuggling route at the request of the Border Patrol in Redford, a tiny border town 200 miles southeast of El Paso.

Military officials said Mr. Hernandez fired twice at the Marines with a .22-caliber rifle and was about to shoot again at Lance Cpl. James M. Blood when Cpl. Clemente Banuelos killed him with a single shot from an M-16.

Presidio County Sheriff Danny Dominguez said he turned over physical evidence, including two guns, to the FBI on Friday.

Mr. Hernandez's family said they were outraged at the Presidio County grand jury's decision.

"We waited for justice to be done and it wasn't," said Bill Weinact, an attorney speaking for the Hernandez family. "We felt that the entire burden of responsibility should not shift from the government to the individual and we will pursue this issue with civil litigation and other measures until the end of time, if necessary."

Meanwhile, Houston attorney Jack Zimmermann introduced Cpl. Banuelos, 22, at a news conference but refused to let him answer questions because of the potential for more investigations.

"I wanted to introduce you ... so you know he's a real person," Mr. Zimmerman said, adding that the Marine feels bad about the shooting but believes he did nothing wrong.

Mr. Zimmermann predicted that any Justice Department civil rights investigation will conclude that the case was handled properly.

"They found no probable cause. ... I do not predict an indictment by the federal authorities," he said.

Mr. Zimmermann said he was determined "not to permit Clemente Banuelos to be a human sacrifice to some special interest agenda. Thank God it didn't happen. The system worked."

It is not unprecedented for federal charges to be filed against someone already cleared in the same case by local authorities. California police officers who beat Rodney King were acquitted of state charges but later were convicted of violating his civil rights.

Justice Department spokesman Lee Douglass said Friday that about about 85 percent of civil rights violation cases are law enforcement-related but said she didn't know how many cases, if any, have involved the military.

Another spokesman said the department "would not view it as the U.S. government taking on the military. It's just an incident into whether there were possible civil rights violations. It doesn't matter who is accused."

Presidio County District Attorney Albert Valadez, busy with another grand jury Friday in Alpine, could not be reached for comment. Thursday night, he said the grand jury had agreed with the Pentagon's contention that 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.

Texas Rangers and local prosecutors who investigated the shooting said their evidence conflicted with the Marines' reports. The teen's family said he carried a gun to protect his livestock from predators and occasionally to shoot at targets.

Mr. Zimmerman said Mr. Hernandez undoubtedly knew he was shooting at people, recalling that the young man had fired at a group of Border Patrol agents in February and then explained to them he thought they were Mexicans after his goats.

The Rev. Melvin LaFollette, head of a committee that will spearhead the community's legal actions, said that in Redford there is "quite a bit of disgust and anger and a determination to press ahead."

"We know that we're taking on the most powerful government in the world, but it must be done," Mr. LaFollette said.

Mr. LaFollette said the makeup of the grand jury was a factor in prompting residents to seek continued state and federal inquiry into the shooting.

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

"In addition, only one of the 12 members of that jury came from the Presidio area. The rest all live in Marfa, an unacceptable imbalance," Mr. LaFollette said. "These are not people who were the peers of Esequiel Hernandez." In Marfa, residents who have been watching the case predicted further turmoil.

"The grand jury's actions won't bring any calm. The kid is still dead and when someone dies, someone has to be punished. This will be with us for a while," said Nora Lujan outside the post office.

A friend, Marjorie Fellows, said the case "isn't about race or ethnics. It's about trust. How people react to the government and to how officials are seen looking at their interests.

"I think most people feel sorry for Banuelos. He was just following orders. He's just a kid himself," said Mrs. Fellows. "It's a terrible burden to be responsible for killing someone. But it was the military who put him in a strange environment, that's who's responsible."

In the aftermath of the killing, the military suspended surveillance missions like the one that resulted in the confrontation with Mr. Hernandez.

They continue to provide other support, such as road construction and intelligence analysis, but the use of armed patrols is under review.

In Marfa, chief Border Patrol Agent Simon Garza Jr. is conducting his own review of the use of such patrols before deciding to request such help, if it's available in the future.

"We're all going to try to work to ensure there's never a recurrence," he said.

Staff writer Diane Jennings and The Associated Press contributed to this report.

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

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