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Houston Chronicle July 31, 1997

Panel hears evidence in border case
No action taken yet in teen's fatal shooting

By THADDEUS HERRICK Copyright 1997 Houston Chronicle

MARFA -- A grand jury heard evidence but took no action Wednesday in the case of a Presidio High School sophomore shot to death by a U.S. Marine during an anti-drug patrol on a remote stretch of the Texas-Mexico border.

District Attorney Albert Valadez said the grand jury, which will reconvene Aug. 12, heard from seven witnesses between 10 a.m. and 7 p.m. The panel of seven women and five men included a current U.S. Border Patrol agent and a retired agent, but their presence was not challenged.

The jurors viewed photographs and videotape, examined lab results and listened to tape recordings relating to the incident.

Valadez said he was not seeking a murder charge in the death of Esequiel Hernandez Jr. but wanted the grand jury to sort through the evidence and decide on the case for themselves. Marine Cpl. Clemente Banuelos, 22, of Camp Pendleton, Calif., who shot Hernandez with an M-16, could be charged with murder.

At issue is whether Banuelos fired in self-defense and, similarly, if Hernandez was aiming his .22-caliber rifle at Banuelos and three other soldiers when he was shot.

The shooting occurred in the early evening on May 22, just days after Hernandez's 18th birthday, while he was tending his goats on a desert hill not far from his cinder block home in Redford. Investigators say the camouflaged soldiers followed the Redford youth for about 20 minutes after he fired two shots at them from about 200 yards, never issuing him a verbal warning.

Jack Zimmermann of Houston, Banuelos' attorney and himself a former Marine, said he welcomes the proceedings but that the real debate should be over the federal policy that put military anti- drug troops on the border. Banuelos did what he was "instructed and trained" to do, Zimmermann said.

"Let's get the air cleared," he said. "This was a tragedy but it wasn't a criminal act."

The shooting in the tiny town of Redford has thrust the issue of the militarization of the border into the national spotlight and illustrated the risks of using troops in domestic law enforcement. The Pentagon said Tuesday it had suspended all anti- drug patrols on the border pending the inquiry into the Hernandez killing, and Congress is calling for hearings on the matter.

Valadez said the delay until Aug. 12 was partly because of a snafu with federal subpoenas issued earlier this summer. The subpoenas were not rejected outright, but he said they were not up to federal government standards and would be served again.

"Usually we pick up the phone and get their cooperation," he said, adding that he expects cooperation when he reissues the subpoenas for eight federal witnesses.

One-third of the grand jury members are active or retired federal employees, reflecting the demographics of Presidio County, a vast expanse of West Texas desert and mountains that is home to about 8,000 people. Nine of the 12 jurors are Hispanic, also in line with the county's ethnic breakdown.

The grand jury includes Joseph Harris, the Border Patrol's assistant chief agent in Marfa; Billy Peiser, a retired Border Patrol agent; and two U.S. Customs Service officials. Ten of the grand jurors are from Marfa and two from Presidio, a border community some 70 miles to the south. None are from Redford, a town of fewer than 100 on the outskirts of Big Bend National Park.

Among the others weighing the evidence were an executive for West Texas Utilities Co., a gas station attendant and a student at Sul Ross State University in Alpine.

Valadez described the grand jury as "very attentive" and the proceedings as "unemotional." Neither Valadez nor Zimmermann expressed concern with the federal law enforcement presence on the grand jury. Zimmerman said the perspective of the Border Patrol and customs officials could "cut both ways," working for or against his client.

He said the grand jurors with federal ties might side with prosecutors out of law-enforcement solidarity or, because the Border Patrol is implicated in the incident, might out of self- interest oppose any movement to indict.

Critics of Banuelos and the military policy that put the soldiers on the border said the makeup of the grand jury gives them a line of defense should the 12-member panel choose not to indict Banuelos for murder.

"It looks like a conflict of interest for some of the people," said Mel LaFollette, a Redford resident and retired minister and critic of the military's anti-drug effort. "At least there's some ammunition for impaneling a new grand jury if they do not return an indictment."

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

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