Lawyer details defense in border shooting case

By RONNIE CROCKER and THADDEUS HERRICK

Copyright 1997 Houston Chronicle

Even as federal authorities were set to begin a civil rights investigation
of his client, attorney Jack Zimmermann poured forth many of the details he
believes contributed to the sofar successful defense of the Marine
corporal who shot and killed a border teenager during an antidrug patrol
May 20.

A day after Cpl. Clemente Banuelos, 22, was cleared by a grand jury in
Marfa, Zimmermann described for reporters the series of polygraph tests the
Marine passed two months after the fatal shooting. He touted the consensus
of five experts debunking the widely reported conclusions of Texas Rangers
that an autopsy report conflicted with the Marines' version of what happened.

"That's why it was so irritating to me to have the Texas Rangers say, ...
`The evidence doesn't add up,' " said Zimmermann, who had been adamant
before the grand jury's nobill that he could not comment on many aspects of
the case. At his Galleriaarea office in Houston, he said he was baffled
the Rangers didn't do the same.

The news conference Friday began on a bizarre note when Banuelos was led
before reporters but not allowed to answer their questions. The artillery
scout observer stood expressionless as camera flashes went off and TV crews
zoomed in on him.

Banuelos was then led to another room where, Zimmermann said, he and the
Marine's military lawyer would discuss what might happen next. Zimmermann
said he does not expect another grand jury investigation, despite calls for
one from protesters, and he does not expect an upcoming federal civil
rights investigation to have a different outcome.

That investigation has been on hold pending the outcome of the state
action, but federal officials said Friday that they were set to get under
way. The FBI took custody of the guns fired by Banuelos and the victim,
18yearold Esequiel Hernandez Jr., along with all other physical evidence
in the case.

Zimmermann also said he doubts that he would represent Banuelos in an
expected multimilliondollar civil lawsuit. An attorney for Hernandez's
family said he is pursuing a negligence claim against the federal government.

But the highlight of Friday's news conference was Zimmermann's recounting,
in richer detail than previously, a scene near the El Polvo crossing of the
Rio Grande that very much resembled the typical drugtrafficking scenario
the Marines were prepared for.

When the antidrug unit, Joint Task Force6, was sent to Presidio County to
patrol, the Marines were briefed on what to expect. Zimmermann said they
were told that drug traffickers often could be seen riding up on horseback
with bags of narcotics, accompanied by a scout on foot.

About 6 p.m. on May 20, the final day of a fourday patrol for Banuelos'
team of four Marines, Zimmermann said, the team spotted a man on horseback
across the Rio Grande. When the Marines noticed the horseman had cloth bags
in his lap, they dropped to one knee to watch him. About that time, the
lawyer said, they heard goats to their right.

That was not unusual, Zimmermann said, because the team had noticed the
goats every evening, as had the team Banuelos' group relieved. That was
reflected in their reports and in interviews with defense investigators.

But this time was different, Zimmermann said. There was a man with a gun
behind the herd.

"The man looked at them; he stared at them," the lawyer said. "They knew
they had been compromised."

When the man later determined to be Hernandez, who by all accounts had
no ties to any drug dealers fired his .22caliber rifle at them, the
Marines fell to their bellies and radioed to their military commanders that
they were under fire. Zimmermann said U.S. Border Patrol agents were
monitoring the radio traffic.

He said Banuelos radioed that the man appeared to know the Marines were
present and was looking for them as he maneuvered in and out of sight.
Banuelos, as team leader, ordered his men to remain parallel with Hernandez.

"If he points the weapon down range (toward us) again, we're going to take
him," Zimmermann said, paraphrasing from a transcript of Banuelos'
communication with his superiors. "And the response was, `Roger, fire back.' "

Some 18 minutes later, after the Marines had closed the gap between
themselves and Hernandez from about 220 yards to less than 140 yards,
Banuelos sent Lance Cpl. James Blood to a high point to his right. After
Hernandez raised his rifle toward Blood, Zimmermann said, Banuelos squeezed
off a single shot with his M16. The attorney said Hernandez most likely
died within minutes.

Margarito Hernandez, Esequiel's older brother, said Friday that the grand
jury's decision made it look like his brother was at fault.

But District Attorney Albert Valadez, in brief remarks in Marfa late
Thursday, said that while the grand jury had declined to charge Banuelos,
it did not believe Hernandez knew he was shooting at Marines or anybody.

"The grand jury believes he might have seen movement," Valadez said. "But
the jurors do not believe Zeke was trying to injure Marines or anyone else
at that location."

The lawyer said Banuelos not only gave statements to civilian and military
investigators at the scene over the next two days, but he also successfully
completed three lie detector tests on July 19. Throughout, he said,
Banuelos insisted that he fired only to save Blood's life.

He also said that after Texas Rangers began expressing their concerns that
the autopsy showed the angle of the bullet wound to be inconsistent with
the Marines' version of what happened, he interviewed the Bexar County
examiner who conducted the autopsy. He then consulted another longtime
pathologist, two expert criminologists and the former chief investigator
for the Harris County Medical Examiner's Office.

Their consensus, Zimmermann said, was that nothing in the autopsy was
inconsistent with Banuelos' and the other Marines' stories.

Redford townsfolk, most of whom decried the grand jury's decision, are
trying to convene a court of inquiry to examine the matter. Their central
concern is that the grand jury included a local Border Patrol assistant
chief and three others with ties to the federal government.

Courts of inquiry can be used in Texas to review grand jury proceedings.

Assembled outside Zimmermann's office on Friday was a group of 13
protesters, repeating that call. Maria Jimenez, director of the American
Friends Service Committee, said the investigation should have included more
Redford residents and those grand jurors with Border Patrol connections
should have been excluded.