Attorney says Marine fired at border teen as `last resort'

By RONNIE CROCKER
Copyright 1997 Houston Chronicle

An attorney for the Marine who killed a high school student
during a border antidrug patrol accused law enforcement officers
Wednesday of spreading "disinformation" and activists of using
his client to pursue their own agendas.

Launching the counteroffensive from his office in Houston,
attorney Jack Zimmermann told reporters that his recently
completed investigation revealed that Cpl. Clemente Banuelos
showed great restraint prior to the May 20 shooting of Esequiel
Hernandez Jr., 18, near Big Bend National Park. He said his
client violated no laws when he fired a single, fatal shot with
his M16 rifle.

"Corporal Banuelos fired only as a last resort," he said.

A Marfa grand jury is expected to hear evidence on the matter
next week. The district attorney has said he will leave it up to
the grand jury to decide what, if any, charges will be filed.

Zimmermann, a decorated former Marine colonel who was appointed
by the Justice Department to represent Banuelos in the criminal
proceedings, said he met with his client last week at Camp
Pendleton, Calif. He reviewed photographs, videos and reports
from civilian and military investigators taken after the
shooting.

He also took pains to present Banuelos as something other than a
hardened killer. Describing him as a "fine young man" who got
excellent scores in Marine evaluations, Zimmermann passed out a
color photograph of the babyfaced 22yearold. He said Banuelos,
a native of San Francisco, has been a Marine for more than three
years; he's been married for one year.

Zimmermann then proceeded to counter comments reportedly made by
prosecutors and Texas Rangers looking into the case. At issue is
whether Banuelos acted in selfdefense when he shot to death
Hernandez, who was tending goats near his family's home in
Redford.

Specifically, Zimmermann denied speculation that Hernandez did
not realize he was shooting toward people when he fired two shots
with the .22caliber rifle that townsfolk said he always carried
when out with the goats. Some argue that Hernandez may have
thought he was shooting at wild animals or taking target practice
with rocks or trees.

Zimmermann said the Marines, although dressed in camouflage and
appearing at a distance of more than two football fields, should
have been recognizable to Hernandez. They had sweated the paint
off of their faces and some of the twigs and burlap strips used
as camouflage had fallen off their uniforms during the patrol.
They had no helmets on and were toting a black water can,
communication gear and backpacks to carry supplies for their
threeday patrol.

But the Marines were wearing camouflage hats. When pressed,
Zimmerman conceded he did not know how large or visible the water
can or other equipment were.

But, he added, "The last I checked, animals don't carry water
cans or packs on their back, and rocks don't travel in pairs."

Zimmermann also said prosecutors and Rangers are wrong when they
say the angle of Hernandez's bullet wound is inconsistent with
the Marines' version of how the young man was killed.

Declining to elaborate, Zimmermann said his review shows the
autopsy results to be entirely consistent with the statements the
soldiers made to Border Patrol and military investigators the
night of the shooting and to the FBI and Texas Rangers the
following day.

The autopsy report shows Hernandez was shot in the right front
chest.

According to Zimmermann, the events of May 20 unfolded this way:

Banuelos and three other Marines were in the final hours of a
threeday patrol when they radioed the Border Patrol and reported
seeing an armed man about 6 p.m. At 6:07, Banuelos radioed that
the team was being fired on; he expected Border Patrol agents to
arrive within 15 minutes.

After a second shot from Hernandez, the Marines, using hand
signals to communicate with each other, began following Hernandez
to keep him in sight until the Border Patrol showed up.
Zimmermann complained about the description of this by some law
enforcement officials as "tracking" or "stalking."

Zimmermann said the Marines carried no bullhorn and made no
attempt to identify themselves to Hernandez. The wind was blowing
strong from behind Hernandez, and they likely could not have been
heard, he said. When Hernandez disappeared from view a couple of
times, Banuelos had Lance Cpl. James Blood move to a high point
above and to Hernandez's left.

Banuelos watched as Hernandez raised his rifle a third time and
aimed it toward the unsuspecting Blood. Banuelos fired at 6:27
p.m., from a distance of just over 125 yards, and saw Hernandez
go down.

Zimmermann also complained about reports that the Marines failed
to administer first aid to Hernandez, allowing him to bleed to
death. "I think the Marines have been taking a bum rap on this,"
he said.

He explained that the soldiers did not know whether the man had
been shot or had merely dived for cover, and so they approached
cautiously. It was nine minutes before they came upon Hernandez.
When they did, the lawyer said, there was no blood visible and it
appeared the man may have hurt his head or neck. He said their
first aid training said they should not move someone with such
injuries.

The autopsy shows most of Hernandez's bleeding was internal.

Zimmermann also took issue with activists who have seized on the
shooting either to blast the military for racism or to make
Banuelos the fall guy in the debate over militarization of the
U.S.Mexico border.

Noting that more than a quarter of the 56 Marines assigned to the
Redford patrol had Hispanic surnames, Zimmermann said it is
"ludicrous" to claim Hernandez was shot because he is Hispanic.
Banuelos, he said, is of MexicanAmerican descent.

And while calling border militarization a "legitimate national
debate," Zimmermann said Banuelos should not be a pawn in that
debate.

"Corporal Banuelos was carrying out lawful orders of his chain of
command," he said. "He was doing what he was supposed to do."

Meanwhile, six protesters from the American Friends Service
Committee gathered outside Zimmermann's Galleriaarea office.
They carried signs calling for justice and showing a photograph
of a smiling Hernandez on a horse.

Maria Jimenez, director, said they want Banuelos held responsible
for his actions. But more important, she said, they want a change
in U.S. policy.

"This was a predictable death," she said. "Having the military
engaged in civilian law enforcement means it will happen again."