Source: Los Angeles Times
Author: JESSE KATZ, Times Staff Writer

Contact: letters@latimes.com
Fax: 2132374712

Marine Is Cleared in Texas Border Death

Probe: Grand jury declines to indict corporal in shooting of teenager
during
antidrug mission. Victim's family, friends complain of a coverup.

TexasA grand jury on Thursday declined to indict
a Marine for the shooting death of an 18yearold goatherd
along the Rio Grande, the first U.S. citizen to be killed on American
soil by his own military in the war against drugs.
After hearing from 17 witnesses and reviewing dozens of reports
over two days of testimony, the jurors determined that Cpl.
Clemente Banuelos was justified in fearing for the three Marines
under his command when he fatally shot Esequiel Hernandez Jr. last
May during an antinarcotics mission on the TexasMexico border.
Hernandez, who carried an antique .22caliber rifle while grazing
his goats, had inexplicably shot twice in the direction of the Marines
and was allegedly preparing to shoot a third time when Banuelos
returned fire with his M16. Although the jurors found no evidence
that Hernandez knew he was shooting at the heavily camouflaged
troops, they also agreed that Banuelos had a legitimate concern for
his colleagues' lives.
"They ultimately concluded that Clemente Banuelos was acting
reasonably in defense of a third person when he fired the fatal shot,"
said Dist. Atty. Albert Valadez, who had spent the last three months
gathering evidence of what he considered a crime.
The decision not to indict the Camp Pendletonbased Marine
was immediately hailed by his attorney as proof of a just system and
denounced by residents of Hernandez's small border community as
a coverup.
"Although this was a terrible tragedy, there was no crime," said
Jack Zimmermann, Banuelos' lawyer and himself a former Marine.
After speaking by phone to his client, Zimmermann said Banuelos
sounded relieved but surprised, given the political demands to hold
someone accountable for Hernandez's death.

"You've got to imagine the pressure and frustration on a
22yearold man who does exactly what he was trained to do . . .
then gets accused of murder," Zimmermann said.
Hernandez's family and friends, who drove 75 miles here to the
Presidio County seat from their tiny farming village of Redford,
complained bitterly about many aspects of the investigation, which
they considered incomplete. They also questioned the composition
of the grand jury, which included a former Border Patrol agent and
the current assistant chief of the Border Patrol's Marfa
stationwhich served as the command center for the Marines'
mission.
"There are grave constitutional issues here," said the Rev. Mel
LaFollette, a retired Episcopal priest from Redford who is leading
the community's protest. He said he would ask the district attorney
to convene another grand jury and vowed to challenge the Marines'
account of the incident through a classaction lawsuit on behalf of
Redford's 100 residents.
"This is not the end," he said. "This is the beginning."
The one thing that both sides agreed upon Thursday was that a
more profound debateone that examines the proper role of the
armed forces in domestic policyhas yet to be settled.
* * *
A centuryold federal law, the Posse Comitatus Act, prohibits
military personnel from performing police functions. But those
restrictions were relaxed in the 1980s, allowing troops to assist law
enforcement officers in the fight against drugs. Under the
government's rules of engagement, while those troops can conduct
surveillance and provide intelligence, they can only act against a
suspect if they fear their lives are in danger.
"That's a policy decision not up to a corporal to make,"
Zimmerman said.
Maria Jimenez, a representative of the American Friends Service
Committee in Houston, agreed: "For us, he would simply be a
scapegoat in a policy he had no hand in determining."

In the wake of the shooting, the Pentagon last month suspended
all its antidrug operations along the U.S.Mexico border. Joint
Task Force 6, as the military's El Pasobased narcotics squad is
called, had performed more than 3,300 domestic missions since
1989, with an estimated 200 troops stationed somewhere on the
border at any given time.
The incident that brought that to an end occurred late in the
afternoon of May 20, just days after Hernandez's 18th birthday. A
quiet, respectful youth with no history of trouble, he had come home
from Presidio High School, eaten dinner and studied his driver's
manual before heading out to graze his family's 45 goats.
* * *
As was his custom, Hernandez carried a .22caliber rifle on his
shoulder, a World War Iperiod heirloom once owned by his
grandfather. Friends and family say that he often took target
practice or hunted jack rabbits in the desert scrub. If he did shoot in
the direction of the Marines, they can only surmise that he mistook
them for animals, or was frightened by their camouflaged forms.
But the troops insist that Hernandez knew he was firing at human
beings, even if he didn't know exactly who they were. For their
part, the Marines had no idea who Hernandez was, other than that
they perceived him as armed and dangerous, despite his herd of
goats.
After each of Hernandez's two shots, the Marines radioed back
to their command post at the Border Patrol station in Marfa,
according to Jerald Crow, attorney for another of the Marines,
Lance Cpl. James M. Blood. "They got permission to load their
weapons and defend themselves," he said, adding that the whole
scenario was on tape and available for the grand jury to review.
"You can hear their voices. You can tell this is real."
Once the shots were fired, the Marines say they hit the ground
but kept Hernandez in view. They followed him for several hundred
feeta fact that critics say undermines any claim for selfdefense,
but which the Marines say was demanded by their training. "They
wanted to keep him in sightthat was their mission," Crow said.

Their mission, however, offered the Marines no method for peacefully
resolving the situation. They had no procedure for making contact
with a civilian or obligation to identify themselves. Under the joint
task force's rules, they were to wait for law enforcement officers to
intervenein this case the Border Patrolbut no agents were on the
scene. While the Marines waited, Hernandez allegedly raised his rifle
a third time, taking aim at Blood. Fearing for his colleague,
Banuelos fired once. "If there was any way I could possibly apologize
for the incident that happened that day, I would," Blood told
reporters after testifying before the grand jury. "Anytime somebody
dies, it's regrettable, especially another American."

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