WAS JUSTICE DENIED ON THE BORDER?

REDFORD -- A senior FBI agent and a Texas Ranger who investigated the
killing of a youth by a Marine leading an anti-drug patrol here contend the
military obstructed an inquiry of the death.

They want a grand jury to consider the matter for a third time.

The truth still isn't known about the shooting, Texas Rangers Sgt. David
Duncan said.

"The federal government came in and stifled the investigation," Duncan
said. "It's really depressing. The system we hoped would work failed at the
federal level."

He referred to the death of 18-year-old Esequiel Hernandez Jr., killed May
20, 1997, as he herded his family's goats in this village of unpaved
streets along the Rio Grande west of Big Bend National Park.

Cpl. Clemente Banuelos shot Hernandez once in the chest with his M-16 after
Hernandez fired twice through the brush and allegedly raised his
.22-caliber rifle as if to fire a third time at Banuelos's heavily
camouflaged four-man patrol.

"The Marines perceived a target-practicing shot as a threat to their
safety," said Terry Kincaid, a supervisory senior agent at the FBI's
Midland office.

He was referring to speculation that Hernandez was shooting at objects such
as tin cans.

"From that point, their training and instincts took over to neutralize a
threat," Kincaid added.

Two state grand juries didn't find sufficient evidence to return an
indictment. And a separate federal grand jury also returned no indictments
after considering whether Hernandez's civil rights were violated by the
shooting.

In August, the Navy Department, which oversees the Marine Corps, agreed
without admitting wrongdoing to pay $1.9 million to the Hernandez family to
settle a wrongful death claim against the government.

Kincaid said the incident could have been avoided if Banuelos and his team
had been better supervised and hadn't overreacted after believing they'd
come under fire.

The Texas Rangers became involved in the case because they traditionally
investigate major crimes in rural counties. The FBI investigated because
the military and Border Patrol were involved in the shooting.

Marine Maj. Gen. John Admire said the Marines responded appropriately when
they came under fire and that Hernandez's own actions led to his death.

The stance by the Rangers and the FBI came as a dispute over the shooting
was reignited by the partial release of a 13,000-page Marine Corps report
that found fault with the Marines' behavior and training but concludes the
shooting wasn't a crime.

A separate, 12,000-page report by the Justice Department on Hernandez's
death includes documents that show federal prosecutors also had questions
about the Marines' version of the shooting. Thousands of pages of that
report haven't been cleared for public release.

The Justice Department report notes federal prosecutors once considered
perjury charges against at least two of the Marines, alleging they lied to
FBI agents, but they decided they lacked evidence to file charges.

Since grand jury proceedings are secret, it's not known how much of the
information gathered by the Justice Department and the military has been
kept from state investigators, but Duncan said neither the military nor
federal prosecutors have cooperated with his probe.

Maj. Gen. John Coyne, who headed the Pentagon's investigation, said he had
"lingering suspicions" about the shooting, but no evidence proved a crime
was committed.

Coyne disputed the notion of a military cover-up and said the Texas Rangers
should do whatever their job requires.

"The report was as thorough and exhaustive as I could have made it," said
Coyne, who's retired and lives in Virginia.

He attributed the shooting to inadequate training and failures in the chain
of command.

"Basic Marine Corps training instills an aggressive spirit while teaching
combat skills," Coyne wrote in his report. "More is needed to place young
fully armed Marines in a domestic environment and perform noncombat duties."

Told about comments from Duncan and the FBI's Kincaid, Maj. Ken White, a
spokesman for the Marine Corps, said the shooting has been reviewed
thoroughly and that Coyne's report speaks for itself.

"We stand by the evaluation and hard work that went into our
investigation," White said from the Pentagon.

Presidio County District Attorney Albert Valadez said he'd need new
evidence to take the case to another state grand jury.

"I sought two indictments for murder. That speaks for itself. (The Marines)
pursued (Hernandez) and they killed him," Valadez said. "If Dave (Duncan)
or any of the Rangers finds evidence that warrants another grand jury,
we'll go round three."

Banuelos, a San Francisco native who left the military with an honorable
discharge, has said he shot Hernandez to prevent a member of the patrol
from being killed.

Jack Zimmermann, a Houston lawyer and former Marine colonel representing
Banuelos, repeatedly has said that while the shooting was unfortunate, it
wasn't a crime.

"At some point we need to let Clemente Banuelos know what he did was what
he was supposed to do and let it go," Zimmermann said earlier. "Cpl.
Banuelos' actions were entirely justified under the law and consistent with
what he was trained to do."

Zimmermann said his client wouldn't comment on the case.

Rangers Claim Obstruction

Duncan argued that subpoenas were ignored, documents were hidden and
Marines at times were kept from him and others.

He said Banuelos and his team had ample time to rehearse their stories, and
they retraced their steps before state investigators could question them
the day of the shooting.

"Law enforcement succeeds because people respect the system and fear the
consequences of their actions. I almost feel like the Marines never had
either one," Duncan said.

At one point after the shooting, Banuelos sat in a sports utility vehicle
and spoke to an unidentified military officer as state investigators waited
outside in the rain to interview the corporal, according to Coyne's report.

The Border Patrol, which had been overseeing the Marines as part of an
effort to monitor smuggling, refused to let its agents testify before a
state grand jury unless they got an advance copy of the summary of
questions, according to a letter from an attorney for the U.S. Immigration
and Naturalization Service, the patrol's parent agency.

A later memorandum noted the Justice Department and the district attorney,
Valadez, had agreed that Border Patrol agents only would testify about
observations at the scene of the shooting and what the Marines were wearing.

The agents were further told the Justice Department had asked they be
available for questioning by a defense attorney the morning of their grand
jury testimony.

Duncan was angered by the move and said he was told the Marines were not
available to him when, in fact, they were meeting privately with Banuelos'
attorney.

The Marine report, prepared by Coyne and a staff of 22, provides the most
comprehensive look yet at the shooting.

Although summaries and some statements given to investigators were released
to the public, the Pentagon repeatedly has declined to release the bulk of
the document.

Coyne's report says Banuelos and his team were inadequately trained, gave
troubling answers to investigators and provided a dying Hernandez with
"substandard first aid by any human standard."

"No training prepared the Marines to recognize a humanitarian duty to
render aid," Coyne wrote. "The potential for encountering civilian
casualties in counter-drug operations should have been a recognized element
for planning and training."

The report concluded "an analysis of the results of the investigations
fails to reveal any evidence -- as distinguished from lingering suspicions
- -- that Cpl. Banuelos acted for any reason other than protecting his team
in a manner consistent with his Marine Corps training."

Patrols Suspended

Defense Secretary William Cohen suspended anti-drug patrols along the
border soon after Hernandez was killed.

Cohen's advisers warned him the public was angry about the shooting and the
use of armed patrols on anti-drug missions along the border.

Judith Miller, general counsel for the Defense Department, bluntly told
Cohen that should another Redford-like incident occur, "we will not be able
to protect those involved from possible criminal action from state officials."

"While as a policy matter that risk may be acceptable, it is not a risk
that I am comfortable with in light of the experience to date with the
state of Texas," Miller wrote to Cohen in a July 23, 1997, letter that's
part of Coyne's report.

The shooting touched off a behind-the-scenes debate among Marine Corps
officials, and between the Marines and the Justice Department.

Barry Kowalski, a ranking official in the Justice Department's Office of
Civil Rights, which reviewed the killing, said a reasonable law enforcement
officer facing the same circumstances as (Banuelos) wouldn't have fired at
Hernandez.

Kowalski said the civil rights probe was launched, in part, because of
concerns about why Hernandez was killed, but the Justice Department didn't
seek an indictment in the case.

The agency sent Presidio County officials boxes of documents from its grand
jury probe and suggested a state grand jury take a second look at possible
state charges against the Marines for reckless or negligent homicide.

The Presidio County grand jury reviewed the documents and again refused to
indict.

Admire, then commander of the 1st Marine Division at Camp Pendleton,
Calif., where the Marines were based, disputed Coyne's report and
Kowalski's comments and said the Marines acted appropriately.

"The training proficiency of the Marines was demonstrated by their
compliance with military regulations, civilian laws, and their restrained
but protective actions during a dangerous situation," Admire said in an
April 1998 letter to his superiors.

He chastised Kowalski as "an arrogant at best and disingenuous at worst"
federal prosecutor who used the bully pulpit to attack the Marines' integrity.

"This offends the ideals of justice," Admire's letter said. "But those who
it most offends are those who serve our nation at home and abroad."

Diagram Of A Tragedy

For three days in the brush, Banuelos led three men who'd never trained
together before and weren't elite reconnaissance troops. A truck driver,
forklift operator and a radioman, their mission was to spy on a nearby
crossing point on the Rio Grande known as El Polvo, Spanish for dust.

They approached Redford, a place their superiors told them was hostile and
home to locals who worked with drug traffickers.

Meanwhile, Hernandez arrived home on the school bus at about 4 p.m. After
dinner, he studied for his driver's license exam, then grabbed the rifle
that had been in his family for three generations and went to herd the goats.

Hernandez, who considered joining the Marines and had a recruiting poster
on his bedroom wall, often carried the rifle for target practice and to
protect the goats from wild animals, his family said.

As he walked with the goats, the team of Marines was about 200 yards away
and making its way through the brush.

Banuelos radioed he saw an armed man who appeared to be herding goats,
according to transcripts of the transmissions.

Suddenly, the Marines fell to the ground.

"We're taking fire!" Banuelos yelled into the radio.

The Marines later told investigators two shots whizzed by them.

"As soon as he raises that rifle back down range, we're taking him,"
Banuelos said into his radio.

"Roger . . . ahhh . . . fire back," responded a corporal at Border Patrol
headquarters in Marfa.

Eighteen minutes after Banuelos' first transmission, Hernandez lay dead,
sprawled over an old well from an Army outpost used to guard against raids
by Pancho Villa.

A military pathologist later determined the injuries "were so severe that
he would have died, even if he had been shot inside a hospital emergency
room."

U.S. Rep. Lamar Smith, R-San Antonio, wrapped up his investigation of the
shooting earlier this month by saying the Border Patrol was at fault for
not supervising the Marines better and the Defense Department was at fault
for not giving the Marines better training.

"Both agencies made terrible mistakes that contributed to this tragedy,"
said Smith, chairman of the House subcommittee on immigration.

Meanwhile, the Rangers won't drop the case until the death of Hernandez and
the actions of the Marines are aired before a trial jury.

"They thought they didn't have to answer to civilian law," Ranger Capt.
Barry Caver said of the Marines and their leaders. "They didn't respect us
or the system. No one is exempt from the law."

Checked-by: Richard Lake