COVER-UP ALLEGED IN DEATH PROBE

Official hits agencies in killing by Marine

WASHINGTON -- The Justice and Defense departments undermined criminal
investigations by withholding information about the inadequate
training of Marines who killed a Texas teen-ager while on border
patrol, Rep. Lamar Smith, R-San Antonio, said Thursday.

Smith said the two agencies refused requests from him and Texas
prosecutors for documents related to the fatal shooting of Esequiel
Hernandez Jr., an 18-year-old Redford goatherd, on May 20, 1997.

"It certainly has the appearance of a cover-up, at a minimum," Smith
said in releasing a 249-page report his staff prepared on the shooting
and its aftermath.

Cpl. Clemente Banuelos has testified that he shot Hernandez when the
teen-ager aimed his rifle at another Marine on anti-drug patrol.

The information the government departments did provide reveals the
camouflaged Marines had no knowledge of the Texas community and little
border patrol training before encountering Hernandez, armed only with
the .22-caliber rifle he used to ward off thieves and snakes, Smith
said.

The congressman, who chairs the House Judiciary Subcommittee on
Immigration and Claims, said the departments' failure to provide
information to Texas law enforcement "had the effect of seriously
undermining any possibility of finding the truth in a criminal
investigation."

Two Texas grand juries declined to issue indictments in the summer of
1997. A federal grand jury also issued no indictments after conducting
a civil rights investigation. The federal government has agreed to pay
$1.9 million to the Hernandez family to settle a wrongful death claim.

The Marine Corps issued a statement defending its investigation of the
Redford shooting, saying it reprimanded officers in the chain of
command for failing to properly supervise and support the operation.

"In addition to investigating the incident itself, the investigating
officer looked at every aspect of Marine Corps support of counter-drug
operations," the military service stated. "Our efforts to make this an
open, thorough and responsible investigation enabled us to identify
that the level of support and priority of effort that [border patrol]
missions received from higher headquarters was, in some instances,
less than acceptable."

The Justice Department said there was insufficient evidence to show an
intentional violation of Hernandez's civil rights and rejected Smith's
contention the agency impeded criminal investigations.

"After our investigation, we shared all of our evidence with the local
prosecutor to the extent permitted by law," the department's statement
said.

The Texas congressman reviewed information that the departments
provided to him voluntarily and under congressional subpoena. He said
the Justice Department was more culpable than the Pentagon, because
the Marine Corps at least conducted a detailed investigation and
punished several officers.

The Justice Department, which supervises the Border Patrol, has
refused to take any action or acknowledge any responsibility for the
incident, Smith said.

"It is troubling that the Justice Department, which is responsible for
enforcing the law, decided instead to obstruct law enforcement in the
Hernandez case," he added. "Life and liberty are dependent upon
citizens and their government being held accountable.

"When the nation's chief law enforcement agency will not make even a
cursory attempt to hold itself and its employees accountable for the
wrongful killing of an American citizen, the life and freedom of every

citizen are threatened."

Smith, who said he has no plans to conduct hearings on his report's
conclusions, placed most of the blame for the shooting on the Border
Patrol for failing to teach law enforcement techniques to the Marines
and to tell them that many law-abiding residents in the area carry
light rifles for protection.

"They [the Marines] were not made to understand how threatening they
might appear to local residents with no knowledge of their presence,"
Smith said. "The Marines were not told that their observation post was
located near a number of family homes, including the Hernandez home.
They were not told that Hernandez regularly brought his goats to the
Polvo Crossing area."

The congressman said the goatherd might have fired two shots at the
Marine patrol to protect his animals, not knowing that the sounds he
heard in the underbrush were U.S. military. However, those shots --
followed quickly by Hernandez's return to tending his goats -- did not
warrant the four-member Marine patrol's decision to shadow the
goatherd for 20 minutes, Smith said.

The Pentagon has suspended the use of military personnel in border
enforcement. Proposed legislation to bar military border patrols died
in Congress this year.

Checked-by: Rich O'Grady