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Houston Chronicle August 15, 1997

Marine is cleared in border shooting

Copyright 1997 Houston Chronicle San Antonio Bureau

MARFA -- A Presidio County grand jury Thursday refused to indict the Marine who fatally shot a high school student while on an anti-drug operation in the border town of Redford.

District Attorney Albert Valadez said there were not enough votes among the 12-member grand jury to charge 22-year-old Cpl. Clemente Banuelos in the death of Esequiel Hernandez Jr., an 18- year-old who was herding his goats near his home on the evening of May 20 when he fired in the direction of a four-man Marine patrol. Hernandez was killed when he raised his rifle some 20 minutes later, presumably to fire a third shot.

"The grand jury believed the Marines were following the rules of engagement when they were following Zeke to maintain visual observation until the U.S. Border Patrol arrived," said Valadez. "They came to the conclusion that Clemente Banuelos was acting reasonably in the defense of a third person."

Jack Zimmermann, a civilian lawyer representing Banuelos, said his client met the news over the phone from his home in California with a long period of silence before telling him, "I am relieved, the stress is off." The attorney praised Valadez for not trying to win an indictment for political purposes, and said the jurors had reached the right decision.

"We had a grand jury that worked two full days on one case," he said. "We had a prosecutor who presented all the evidence, and the system worked."

Supporters of Hernandez vowed to call for another grand jury and a court of inquiry. They called the investigation incomplete and objected to the presence of Border Patrol and customs employees on the grand jury.

"It's obvious it was stacked in favor of government agencies," said the Rev. Mel La Follette, a resident of Redford. "This would appear to be such a blatant conflict of interest it's unimaginable."

The predominantly Hispanic grand jury included seven women and five men from Presidio County. It included the Border Patrol's assistant chief in Marfa and three other residents with ties to the federal government. The panel heard from about eight witnesses.

At issue was whether Hernandez had fired his vintage .22-caliber rifle at the Marines and whether he was about to shoot one of the team members when he was killed by a single shot from Banuelos' M-16 rifle.

The three other Marines on the patrol appeared before the grand jury Thursday. All wore noncombat uniforms, and each spoke to the jurors for well over an hour.

Afterward, two of them -- Lance Cpl. James Matthew Blood and Cpl. Ray Torrez Jr. -- said they spoke in support of Banuelos and hoped their testimony would help clear his name.

"He possibly saved my life," said Blood, a 22-year-old native of Washington state, upon leaving the courthouse in late afternoon with his lawyer, Jerald Crow of Conroe. "I don't think he should be charged."

Earlier, in Washington, a spokesman for the Defense Department also issued a strong statement supporting Banuelos.

"He followed the rules of engagement clearly," spokesman Kenneth Bacon told a news briefing. "And those rules of engagement allowed him to defend himself. He was under fire, he and his three other Marines were under fire, and acted appropriately in defense."

The Marines who testified Thursday were granted limited immunity, although they still could face charges related to the shooting of Hernandez. None of their remarks to this grand jury, however, can be used against them.

Though Blood said he would have fired at Hernandez in defense of his comrade, he expressed sorrow for the youth's death. He said he would return to duty on the border if assigned, but intimated the policy that put him and his fellow Marines there was in some way flawed.

"I'd ask for some things to change," he said. "But I won't say specifically what."

The incident was the first time anti-drug troops have fired on a U.S. citizen since they were deployed to the border in the 1980s. Hernandez was shot by the camouflaged Marines on a desert hill overlooking his family's cinderblock home near a well-known crossing spot on the Rio Grande known as El Polvo, Spanish for dust.

Upon leaving the courthouse, the 19-year-old Torrez, a native of Rosemont, Calif., said that had he been in Banuelos' situation, he, too, would have fired. He said he was sorry for what had happened but that he also would return to duty on the border if asked. The other Marine, Lance Cpl. Ronald Wieler Jr., 21, made no comments to the media. Banuelos remained at Camp Pendleton, Calif., where he and the other three Marines are stationed.

Among the evidence jurors heard Thursday were audiotapes which Blood's lawyer said revealed the Marines were simply following orders. Crow said Banuelos fired after the Marines contacted their superiors in both the military and the Border Patrol by radio. He said they asked for and were granted permission to "lock and load" their M-16 rifles. Banuelos fired on his own initiative.

The shooting has sparked debate over the use of the military in the fighting drugs, traditionally the domain of law enforcement officers. Though soldiers are prohibited from carrying out most police duties, they have since the Reagan administration been assigned to the border to gather intelligence. Under the so- called rules of engagement, anti-drug troops need not identify themselves and can fire in self-defense.

While the Pentagon last month suspended operations along the border, the issue still simmers. Congress has called for hearings and border rights advocates for a wholesale policy change. U.S. Rep. Lamar Smith, R-San Antonio, who chairs a House immigration subcommittee, complained this week that the Justice Department is stonewalling an inquiry by that body.

On Thursday, a small but vocal group, including several Redford residents, came to the Presidio County Courthouse to protest Hernandez's death.

Appearing briefly at the courthouse was the slain youth's father. Esequiel Hernandez praised the Texas Rangers for their investigation and said he was pleased with the grand jury inquiry to answer questions, but he recognized nothing could bring his son back.

"There is no remedy for this family," he said through a translator.

Zimmermann, Banuelos' lawyer, said the debate over broader national policy had no business in the grand jury proceedings and that the Marines acted according to their training. He further said Hernandez, in the eyes of the troops, fit the profile of a drug trafficker.

"The incident didn't occur because there were Marines in camouflage," said Zimmermann. "The incident occurred because the man fired twice at them with a .22 rifle."

Advocates for Hernandez, wearing purple and blue ribbons in support of the youth, took issue with Zimmermann on the lawn in front of the 19th century courthouse.

"We object to the criminalization of the communities that live along the border," said Maria Loya, a spokeswoman for the El Paso-Based Border Rights Coalition.

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

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