Marine is cleared in border shooting

By THADDEUS HERRICK
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
antidrug operation in the border town of Redford.

District Attorney Albert Valadez said there were not enough votes
among the 12member grand jury to charge 22yearold Cpl.
Clemente Banuelos in the death of Esequiel Hernandez Jr., an 18
yearold who was herding his goats near his home on the evening
of May 20 when he fired in the direction of a fourman 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 .22caliber
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'
M16 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 22yearold 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 antidrug 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 wellknown
crossing spot on the Rio Grande known as El Polvo, Spanish for
dust.

Upon leaving the courthouse, the 19yearold 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 M16 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, antidrug troops need not identify
themselves and can fire in selfdefense.

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, RSan 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
PasoBased Border Rights Coalition.