Source: Austin American-Statesman
Pubdate: 20 May 1998
Contact:  
Website: http://www.Austin360.com/ 
Author: Christi Harlan American-Statesman Washington Staff

SUBPOENA PLANNED IN BORDER SHOOTING

Congressman vows legal action to get Justice Department files on death 
of Esequiel Hernandez

WASHINGTON -- Frustrated with the answers he has received so far, Rep. 
Lamar Smith, R-San Antonio, said Tuesday that he will seek to subpoena 
the Justice Department for more information about the shooting death 
last year of a Texas teen-ager by U.S. Marines patrolling the border 
with Mexico.

Esequiel Hernandez Jr., 18, was shot to death a year ago today while 
he was tending his family's goats near the border town of Redford, 
about 200 miles southeast of El Paso. The Marines have said Cpl. 
Clemente Banuelos shot Hernandez after Hernandez fired his .22-caliber 
rifle in their direction while they were working with the Border 
Patrol during routine anti-smuggling operations.

Smith, chairman of the House immigration subcommittee, has been 
waiting for almost a year to convene a hearing on the shooting to 
examine the Border Patrol's oversight of the Marines. Smith delayed 
the hearings at the request of Attorney General Janet Reno while 
criminal investigations were under way. Those investigations ended 
more than three months ago without any charges, and Smith said he is 
now entitled to answers.

"The Border Patrol was supposed to brief the Marines, supervise them 
and respond to emergencies," Smith said. "But that didn't help 
Esequiel Hernandez."

The Marines "didn't yell either a greeting or a warning" after they 
encountered Hernandez, Smith said Tuesday. "Instead, one of the 
Marines radioed their command center and said they were "taking him' 
if he raised his gun again. The response was, "Roger. Fire back.' "
Smith said he obtained the information from radio logs provided by the 
Marines, but he wants more from the Justice Department, which is the 
parent agency of the Border Patrol.

"The Justice Department refuses to provide basic documents like the 
written statements made by the Marines and Border Patrol agents 
involved in the killing and even refuses to allow those agents to be 
interviewed," Smith said. "Unless the requested documents and 
explanations are immediately forthcoming, Thursday morning I will seek 
subpoenas to force the Justice Department to disclose those facts to 
Congress and the American people."

Justice Department spokesman Myron Marlin said he couldn't comment on 
whether the Justice Department would deliver more information in time 
to head off Smith's plans to seek subpoenas.

"We produced some documents back in August for the congressman, but we 
were engaged in an ongoing criminal investigation at that time," 
Marlin said. "We're at this point reviewing a significant number of 
documents to be sure that we don't release any grand jury-protected 
information."

Marlin said that cooperation with Smith's inquiry was delayed by two 
separate grand jury investigations of the shooting. A Presidio County 
grand jury found no grounds for criminal charges against Banuelos in 
August. A federal grand jury convened in December to consider possible 
criminal violations of Hernandez's civil rights but ended its work in 
January without returning charges.

Smith needs a majority vote of the 12-member immigration subcommittee 
for authority to issue subpoenas. He leads a majority of seven 
Republicans on the committee but said he hopes for a bipartisan vote 
if the subpoenas must be issued.

"I have had two briefings and have written the Justice Department five 
letters asking for information, but I am still waiting for more 
answers," Smith said. "Apparently, we can no longer rely on the 
good-faith cooperation of the Justice Department."

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