General defends Marine who killed teen
But civilian law enforcement might have avoided border shooting, he says

07/07/97
By Douglas Holt / The Dallas Morning News

CAMP PENDLETON, Calif. Soon after a 22yearold Marine shot and killed
a softspoken U.S. teenager on the Texas border last month, Lt. Gen.
Carlton W. Fulford summoned the soldier to his office.

"I wanted to look him in the eye," the commanding general of 45,000
Marines said, attired in his battleready, pressed camouflage. "I'm a
father. If I had lost a son to an incident such as this, I'd be very
angry."

It was an unusual meeting. On one side, the craggyfaced, 53yearold
decorated commander, with combat experience from Vietnam to Desert
Storm. On the other, Cpl. Clemente Banuelos, with less than three years
in the Marine Corps, who fired the first fatal shot on a U.S. civilian
since the military began antidrug surveillance missions in the 1980s.

If nothing else, the general's personal interest indicates the attention
the case has drawn, with its potential for messy legal entanglement. The
government further signaled its concern last week, retaining noted
Houston criminal defense lawyer Jack Zimmerman to represent the Marine.

The incident has also revealed a degree of ambivalence. While Gen.
Fulford defended his Marine's fatal shot, he suggested that the killing
might not have occurred if civilian law enforcement, and not the
military, had patrolled the border.

The commander said he came away from his meeting with the corporal
satisfied, for now, that his Marine had done no wrong in the May 20
shooting of 18yearold Ezequiel Hernandez, a Presidio High School
sophomore who had been herding his family's goats in Redford, about 180
miles southeast of El Paso.

The military has said the shot came in selfdefense after Mr. Hernandez
shot twice and raised his rifle to fire a third time.

A grand jury is expected to complete its consideration of the shooting
by early August. Investigators await ballistics tests and subpoenaed
documents from the military and U.S. Border Patrol.

Mr. Zimmerman, who rose to prominence in defense of Branch Davidian
members after the 1993 siege near Waco, makes it clear this is no
ordinary case.

Asked how much the government was paying him, Mr. Zimmerman responded,
"An abysmally low rate that I could never tell anyone publicly. If this
was not a situation in which there was a Marine doing what he was
supposed to do and was being mistreated by the criminal justice system,
I would not be involved."

Cpl. Banuelos; Lance Cpl. James Blood, 22; Cpl. Roy Torrez Jr., 19; and
Lance Cpl. Ronald Wieler Jr., 21, were one team in a 56Marine mission
deployed in May in an area near Big Bend that military officials have
described as a notorious drugsmuggling route.

For three days, wearing camouflage, burlap and leaves, and armed with
M16 combat rifles, they hunkered down in a listening and observation
post in mountainous desert overlooking the Rio Grande.

Since 1989, all branches of the armed forces have assisted civilian law
enforcement agencies on a variety of antidrug missions, coordinated by
the El Pasobased Joint Task Force6.

Although the military's role has broadened in recent years to include
peacekeeping in Bosnia or humanitarian missions elsewhere, deploying
ground troops on U.S. soil still makes some in the military
uncomfortable.

"I would prefer to see these missions handled by law enforcement
agencies. That's their focus, that's what they're trained for," Gen.
Fulford said, emphasizing that he was expressing a personal opinion and
not official policy. The Clinton administration also supports an
eventual phaseout of armed troops patrolling U.S. soil.

"Law enforcement agents who live there, know the people and know the
environment may have reacted differently than an outside group who is
briefed, painted a picture, and who reacted to what they're given as a
profile of a drugsmuggling operation.

"Somebody from the area may have known this guy did in fact go out with
his rifle to herd his goats."

That would have been no surprise to at least two U.S. Border Patrol
officials.

In February, Border Patrol agents James DeMatteo and Johnny Urias were
at the Polvo Crossing, the same area where the Marines spotted Mr.
Hernandez in May, when they heard the firecracker sound of Mr.
Hernandez's rifle, Border Patrol records obtained by The Dallas Morning
News show.

Later, the young man approached the agents to apologize. "I didn't know
you were back there," he said. "I thought someone was doing something to
my goats."

The agents scolded the young man but did not report the incident until
they recognized his picture in news reports of his shooting.

Meanwhile, the military, after a period of relative silence, has begun
to counter a barrage of critics who have suggested the Marines shot
inappropriately and then failed to render first aid to the victim.

According to military officials, this is what happened: At 6:04 p.m.,
the Marines reported an armed man Mr. Hernandez. Three minutes later,
Mr. Hernandez fired his two shots in the direction of the Marines. As
they are trained, the Marine team sought to keep him in sight,
maneuvering from bush to bush for 20 minutes.

Some have suggested that Mr. Hernandez might have been shooting at a
coyote or javelina that had been preying on his herd, failing to see the
Marines. Military officials say the team should have been fairly plain
to see, laden with water, bulky communications gear and backpacks
necessary for their threeday rotation.

"It's pretty hard to be stealthy when you're traveling with three days'
worth of stuff," said Maj. Len Ryan, a Camp Pendleton spokesman.

Cpl. Banuelos shot Mr. Hernandez from about 136 yards away as Mr.
Hernandez raised his rifle, apparently to fire again, military officials
said. But after the shot, the team was not sure whether he had been hit
and moved in carefully, taking nine minutes to find him.

For the next nine minutes, until Border Patrol agents arrived at 6:45
p.m., the Marines failed to render aid, despite having one member
trained as an emergency medic, Texas Rangers have said.

Joint Task Force6 spokeswoman Maureen Bossch said the Marines found Mr.
Hernandez's neck askew and saw no outward evidence of bleeding. M16s
use small bullets designed to tumble once they hit a body, wreaking
havoc but often not exiting, as happened with the bullet that struck Mr.
Hernandez.

An autopsy later found that the teenager bled to death after a bullet
pierced his side, fragmented, then punctured or injured his aorta,
stomach and other organs.

"They thought he had a neck injury and didn't want to move him," Ms.
Bossch said.

Still, Gen. Fulford said he has specifically asked for an accounting of
the actions taken by the Marines after they found Mr. Hernandez.

In addition, military officials have raised questions about the Border
Patrol's role, asking why the agency took 40 minutes to respond to the
scene, even though by agreement agents were supposed to have been only
15 minutes away.

"I would have liked to have seen them there sooner. Maybe Mr. Hernandez
would still be alive," Gen. Fulford said. But he added: "I'm not going
to criticize them, because I don't know their situation."

David Castaneda, assistant chief Border Patrol agent in Marfa, said
several factors contributed to the delay.

Two Border Patrol agents were on the winding, 17mile road between
Redford and Presidio when word came that the Marines had spotted an
armed man. But instead of responding directly to the scene, they went
first to Presidio to obtain heavier arms automatic M16s kept for
emergency conflicts, he said.

The agents also had to drop off two undocumented immigrants in Presidio
whom they had picked up. That action was meant to protect the safety of
the immigrants in case of a firefight, and conformed with Border Patrol
policy, Mr. Castaneda said.

At the same time, a storm front was rolling through Redford, slowing
travel.

"It's a sad situation," Mr. Castaneda said.

In and around Camp Pendleton, the overriding sentiment, from commanders
to lance corporals grabbing a beer at places like Ta'Kil'Yaz in downtown
Oceanside, is that Cpl. Banuelos behaved like any welltrained Marine
protecting his men. The American public misunderstands their role, and
the news media have tried and convicted a good Marine, in the eyes of
many here.

Under federal law, the military may assist law enforcement with
surveillance and other duties. But military units cannot make arrests or
searches and are trained to shoot only in selfdefense.

"My best guess is he did what he had to do," said Lance Cpl. Luis
Herrera, 20, who has been watching withering news coverage of the
shooting by Spanishlanguage television.

"Ever since you're a new pup in this business, they throw this at you:
Never fire unless fired upon. I'm damn sure that's what this Marine did.
He saw the end of a barrel pointing at him, and if you wait, then he
might kill you."

Even before the shooting, rules of engagement were a hot topic, said Lt.
Erick Kish, 31, a platoon leader who supervised a February stint in
Redford and now is training Marines preparing for a July 15 mission in a
national park where marijuana fields and drug labs are not uncommon.

The rules are a key part of what takes place in classrooms and in the
hills of Camp Pendleton.

"That is one of most important parts of training," Lt. Kish said.
"Dealing with civilians, how to conduct yourself not to escalate the use
of force that's our bread and butter."

And there is anger among the troops that the highly trained and
disciplined Marines have been portrayed in some quarters as
triggerhappy cowboys, blithely gunning down a young man who had dreamed
of becoming a park ranger or even a Texas Ranger.

"We're not this unthinking, unbending, unconcerned war machine that
would fire first and ask questions later," Gen. Fulford said. "This was
a tragic accident, but the Marines involved sincerely believed they were
under fire by someone who intended to do them harm, and they responded
to defend themselves. Until evidence comes along to contradict that, I
intend to stand by these Marines."