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Attorney says Marine fired at border teen as `last resort'

The Houston Chronicle July 24, 1997

Copyright 1997 Houston Chronicle

An attorney for the Marine who killed a high school student during a border anti-drug patrol accused law enforcement officers Wednesday of spreading "disinformation" and activists of using his client to pursue their own agendas.

Launching the counteroffensive from his office in Houston, attorney Jack Zimmermann told reporters that his recently completed investigation revealed that Cpl. Clemente Banuelos showed great restraint prior to the May 20 shooting of Esequiel Hernandez Jr., 18, near Big Bend National Park. He said his client violated no laws when he fired a single, fatal shot with his M-16 rifle.

"Corporal Banuelos fired only as a last resort," he said.

A Marfa grand jury is expected to hear evidence on the matter next week. The district attorney has said he will leave it up to the grand jury to decide what, if any, charges will be filed.

Zimmermann, a decorated former Marine colonel who was appointed by the Justice Department to represent Banuelos in the criminal proceedings, said he met with his client last week at Camp Pendleton, Calif. He reviewed photographs, videos and reports from civilian and military investigators taken after the shooting.

He also took pains to present Banuelos as something other than a hardened killer. Describing him as a "fine young man" who got excellent scores in Marine evaluations, Zimmermann passed out a color photograph of the baby-faced 22-year-old. He said Banuelos, a native of San Francisco, has been a Marine for more than three years; he's been married for one year.

Zimmermann then proceeded to counter comments reportedly made by prosecutors and Texas Rangers looking into the case. At issue is whether Banuelos acted in self-defense when he shot to death Hernandez, who was tending goats near his family's home in Redford.

Specifically, Zimmermann denied speculation that Hernandez did not realize he was shooting toward people when he fired two shots with the .22-caliber rifle that townsfolk said he always carried when out with the goats. Some argue that Hernandez may have thought he was shooting at wild animals or taking target practice with rocks or trees.

Zimmermann said the Marines, although dressed in camouflage and appearing at a distance of more than two football fields, should have been recognizable to Hernandez. They had sweated the paint off of their faces and some of the twigs and burlap strips used as camouflage had fallen off their uniforms during the patrol. They had no helmets on and were toting a black water can, communication gear and backpacks to carry supplies for their three-day patrol.

But the Marines were wearing camouflage hats. When pressed, Zimmerman conceded he did not know how large or visible the water can or other equipment were.

But, he added, "The last I checked, animals don't carry water cans or packs on their back, and rocks don't travel in pairs."

Zimmermann also said prosecutors and Rangers are wrong when they say the angle of Hernandez's bullet wound is inconsistent with the Marines' version of how the young man was killed.

Declining to elaborate, Zimmermann said his review shows the autopsy results to be entirely consistent with the statements the soldiers made to Border Patrol and military investigators the night of the shooting and to the FBI and Texas Rangers the following day.

The autopsy report shows Hernandez was shot in the right front chest.

According to Zimmermann, the events of May 20 unfolded this way:

Banuelos and three other Marines were in the final hours of a three-day patrol when they radioed the Border Patrol and reported seeing an armed man about 6 p.m. At 6:07, Banuelos radioed that the team was being fired on; he expected Border Patrol agents to arrive within 15 minutes.

After a second shot from Hernandez, the Marines, using hand signals to communicate with each other, began following Hernandez to keep him in sight until the Border Patrol showed up. Zimmermann complained about the description of this by some law enforcement officials as "tracking" or "stalking."

Zimmermann said the Marines carried no bullhorn and made no attempt to identify themselves to Hernandez. The wind was blowing strong from behind Hernandez, and they likely could not have been heard, he said. When Hernandez disappeared from view a couple of times, Banuelos had Lance Cpl. James Blood move to a high point above and to Hernandez's left.

Banuelos watched as Hernandez raised his rifle a third time and aimed it toward the unsuspecting Blood. Banuelos fired at 6:27 p.m., from a distance of just over 125 yards, and saw Hernandez go down.

Zimmermann also complained about reports that the Marines failed to administer first aid to Hernandez, allowing him to bleed to death. "I think the Marines have been taking a bum rap on this," he said.

He explained that the soldiers did not know whether the man had been shot or had merely dived for cover, and so they approached cautiously. It was nine minutes before they came upon Hernandez. When they did, the lawyer said, there was no blood visible and it appeared the man may have hurt his head or neck. He said their first aid training said they should not move someone with such injuries.

The autopsy shows most of Hernandez's bleeding was internal.

Zimmermann also took issue with activists who have seized on the shooting either to blast the military for racism or to make Banuelos the fall guy in the debate over militarization of the U.S.-Mexico border.

Noting that more than a quarter of the 56 Marines assigned to the Redford patrol had Hispanic surnames, Zimmermann said it is "ludicrous" to claim Hernandez was shot because he is Hispanic. Banuelos, he said, is of Mexican-American descent.

And while calling border militarization a "legitimate national debate," Zimmermann said Banuelos should not be a pawn in that debate.

"Corporal Banuelos was carrying out lawful orders of his chain of command," he said. "He was doing what he was supposed to do."

Meanwhile, six protesters from the American Friends Service Committee gathered outside Zimmermann's Galleria-area office. They carried signs calling for justice and showing a photograph of a smiling Hernandez on a horse.

Maria Jimenez, director, said they want Banuelos held responsible for his actions. But more important, she said, they want a change in U.S. policy.

"This was a predictable death," she said. "Having the military engaged in civilian law enforcement means it will happen again."

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

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