Panel hears evidence in border case
No action taken yet in teen's fatal shooting

By THADDEUS HERRICK
Copyright 1997 Houston Chronicle

MARFA A grand jury heard evidence but took no action Wednesday
in the case of a Presidio High School sophomore shot to death by
a U.S. Marine during an antidrug patrol on a remote stretch of
the TexasMexico border.

District Attorney Albert Valadez said the grand jury, which will
reconvene Aug. 12, heard from seven witnesses between 10 a.m. and
7 p.m. The panel of seven women and five men included a current
U.S. Border Patrol agent and a retired agent, but their presence
was not challenged.

The jurors viewed photographs and videotape, examined lab results
and listened to tape recordings relating to the incident.

Valadez said he was not seeking a murder charge in the death of
Esequiel Hernandez Jr. but wanted the grand jury to sort through
the evidence and decide on the case for themselves. Marine Cpl.
Clemente Banuelos, 22, of Camp Pendleton, Calif., who shot
Hernandez with an M16, could be charged with murder.

At issue is whether Banuelos fired in selfdefense and,
similarly, if Hernandez was aiming his .22caliber rifle at
Banuelos and three other soldiers when he was shot.

The shooting occurred in the early evening on May 22, just days
after Hernandez's 18th birthday, while he was tending his goats
on a desert hill not far from his cinder block home in Redford.
Investigators say the camouflaged soldiers followed the Redford
youth for about 20 minutes after he fired two shots at them from
about 200 yards, never issuing him a verbal warning.

Jack Zimmermann of Houston, Banuelos' attorney and himself a
former Marine, said he welcomes the proceedings but that the real
debate should be over the federal policy that put military anti
drug troops on the border. Banuelos did what he was "instructed
and trained" to do, Zimmermann said.

"Let's get the air cleared," he said. "This was a tragedy but it
wasn't a criminal act."

The shooting in the tiny town of Redford has thrust the issue of
the militarization of the border into the national spotlight and
illustrated the risks of using troops in domestic law
enforcement. The Pentagon said Tuesday it had suspended all anti
drug patrols on the border pending the inquiry into the Hernandez
killing, and Congress is calling for hearings on the matter.

Valadez said the delay until Aug. 12 was partly because of a
snafu with federal subpoenas issued earlier this summer. The
subpoenas were not rejected outright, but he said they were not
up to federal government standards and would be served again.

"Usually we pick up the phone and get their cooperation," he
said, adding that he expects cooperation when he reissues the
subpoenas for eight federal witnesses.

Onethird of the grand jury members are active or retired federal
employees, reflecting the demographics of Presidio County, a vast
expanse of West Texas desert and mountains that is home to about
8,000 people. Nine of the 12 jurors are Hispanic, also in line
with the county's ethnic breakdown.

The grand jury includes Joseph Harris, the Border Patrol's
assistant chief agent in Marfa; Billy Peiser, a retired Border
Patrol agent; and two U.S. Customs Service officials. Ten of the
grand jurors are from Marfa and two from Presidio, a border
community some 70 miles to the south. None are from Redford, a
town of fewer than 100 on the outskirts of Big Bend National
Park.

Among the others weighing the evidence were an executive for West
Texas Utilities Co., a gas station attendant and a student at Sul
Ross State University in Alpine.

Valadez described the grand jury as "very attentive" and the
proceedings as "unemotional." Neither Valadez nor Zimmermann
expressed concern with the federal law enforcement presence on
the grand jury. Zimmerman said the perspective of the Border
Patrol and customs officials could "cut both ways," working for
or against his client.

He said the grand jurors with federal ties might side with
prosecutors out of lawenforcement solidarity or, because the
Border Patrol is implicated in the incident, might out of self
interest oppose any movement to indict.

Critics of Banuelos and the military policy that put the soldiers
on the border said the makeup of the grand jury gives them a line
of defense should the 12member panel choose not to indict
Banuelos for murder.

"It looks like a conflict of interest for some of the people,"
said Mel LaFollette, a Redford resident and retired minister and
critic of the military's antidrug effort. "At least there's some
ammunition for impaneling a new grand jury if they do not return
an indictment."