The Ballad of Esequiel Hernández

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Q: If a Texas teenager gets blown away by an M-16 while herding his goats, does anyone go to jail?
A: Not if the killer was an on-duty U.S. Marine.

The Ballad of Esequiel Hernández investigates just such an incident, illuminating along the way broad political issues like militarization of the U.S.-Mexico border and the territoriality, honesty, and transparency (or lack thereof) of facets of the U.S. government. Directed by Kieran Fitzgerald and produced by brother Brendan, the film sports an unobtrusive, atmospheric narration by Tommy Lee Jones (a process that helped inspire the actor’s directorial debut, The Three Burials of Melquíades Estrada). But The Ballad relies mostly on fascinating interviews with three of the four Marines from the troop that killed Hernández. Fitzgerald augments these by talking to an impressive number of personnel from the Marines, the FBI, and local law enforcement, as well as attorneys, judges, members of the Hernández family, and a local historian.

Here’s the story: On May 20, 1997, 18-year-old Esequiel Hernández, Jr., of Redford, Tex., a quiet farm boy who loved la Virgen, dance class, drawing, and taking care of the family goats, was out with the herd not far from the Hernández home. He took the ol’ .22 rifle because, he told his father, dogs had been harassing the goats. Plus, it’s Texas.

Waiting in the outlying hills in deep camouflage lay the four Marines, not much older than Hernández. Cpls. Clemente Bañuelos and Ray Torres and LCpls. James Blood and Ronald Wieler, were on a mission to hunt drug smugglers — of which they hadn’t seen any. They had lain for seemingly interminable lengths of time in the dust, in their full gear, in the desert sun. Ants swarmed all over LCpl. Blood, but he was too exhausted to resist. Then, the Marines saw Hernández and his rifle. He saw movement in the distance that probably looked like some animals rustling — perhaps the dogs. He fired a couple of shots in that direction before wandering off in another.

The Marines followed him at a distance. They maintained communication with their superiors who seemed to give them permission to fire on the boy if he pointed his weapon “down range” at them again. They approached him slowly, still in their Ghillie suits, which made them look like bushes. Then Cpl. Bañuelos shot Hernández, who fell, feet-up, into a dry well where he lay dying as the Border Patrol and Marines closed on the site. Esequiel Hernández, Sr., tried to approach his son, but Blood rebuffed him. Mr. Hernández later received a summons to identify the body. The film shows us two still photos of Esequiel Junior’s room: In the second, his little brother sits on the bed, the picture of the Virgen Mary that he tore apart hung back on the wall in pieces. We see footage of the church funeral and visit Esequiel’s grave.

An investigation led to a grand jury to decide if the state had enough evidence to take Bañuelos to trial. Defense attorney Jerry Zimmerman — former military — brought all four Marines to the grand jury, where they fraternized with the participants, had lunch with them, and generally made a good presentation (which Hernández, of course, couldn’t do, being dead). The grand jury found insufficient cause to indict. Hernández’s parents still cry when they talk about him. Bañuelos lives in southern California.

The reactions of various parts of the government — particularly the Marines and the Department of Defense come out as important focuses of the film. Fitzgerald illuminates the problems of information flow and misinformation that have been a hot topic since the terrorist attacks of Sept. 11, 2001. For instance, the Marines had been instructed that 70 to 75 percent of the people in Redford were drug smugglers, a number another Marine higher-up (and common sense) said was absurd. And, in line with the now-infamous sectarianism among the military and the agencies, the Marines protected their own from military and government investigators. The military version of the story — from the Marines and the DOD — said that an unidentified person had fired on the troop, pursued them, and raised his weapon to fire on them again when Bañuelos shot him to protect Blood. The Marines had simply followed their training and protocol.

But testimony from the FBI who examined the autopsy — presented here by two members of the Bureau — maintained that the bullet wound in Hernández was inconsistent with the position he would have been in were he aiming his gun at the Marines. He was, in fact, facing away from them. None of the Marines Fitzgerald interviewed could say positively that they had seen Hernández raise his weapon. And the excuse that Hernández was hunting them makes little sense. Fitzgerald interviewed a current soldier who says that when he’s in deep camouflage he can remain undetected at a distance of five yards, even by other soldiers looking for him. How could an untrained teen have recognized Marines in Ghillie suits lying on the ground at a distance of 220 yards, particularly when he’d probably never seen a Ghillie suit and had no inkling that Marines were on a mission in sight of his house?

One of the FBI experts says that the Marines first noticed Hernández when they had the higher ground, were concealed, and knew they had much more powerful weapons, so why would they feel threatened and follow Hernández unless they — or at least Bañuelos, the most senior of the group — intended to kill him? Documents quote Bañuelos as saying he was “going to neutralize him” and that he “capped the motherfucker”. Does that sound like someone who fired only as a last resort?

Yet, thanks to government manipulation of the story and the media — and Zimmerman’s stunt with the grand jury — the high-profile nature of the case seemed to help the Marines. Zimmerman had 8×10 photos taken of Bañuelos in his dress uniform and circulated them. He helped center the debate on the idea that these strapping young men serving the country were victims and heroes. And the government and some media consistently referred to Hernández as a “goat-herder” and the aggressor in the incident, effectively dehumanizing him.

Jake Brisbin, a local judge, said he and other panelists on a TV discussion of the case at the time were shocked by caller after caller who were less upset about the killing of the boy than the thought that “the poor, little Marine”, as one caller referred to Bañuelos, might face charges. The commanding general of the 1st Division of the Marines even tried to give Bañuelos a medal.

Jane Kelly of the FBI said that “any other law-enforcement agent would have been punished” for doing what Bañuelos did. But, according to Redford historian Enrique Madrid, the military feared setting a precedent that U.S. troops on operations in the USA could be prosecuted for their actions, so they did what they could to keep the trial from happening. And they succeeded. The Department of Justice dropped the investigation. Terry Kincaid, formerly of the FBI, said that the Hernández family was “denied justice, and I’m very sorry for that.”

Now, LCpls. Blood and Wieler cry as they remember what happened. Cpl. Torres regrets the shooting, too — though he fervently refutes the idea that killing Hernández was murder. But our politicians continue to fabricate details about the case even further for their own gains. Fitzgerald shows footage of Rep. Virgil Goode, a rabid nativist (click here and scroll to the second entry), telling a completely backwards account of the Hernández story to justify his extremist anti-immigrant policies. The film then shows a clip of Rep. Tom Tancredo, a candidate for the Republican nomination for President in ‘08, saying that things like the killing of Hernández just happen and are a small price to pay for national security. As the officer from Joint Task Force North who appears in the film’s first interview says, “We can’t tell if it’s an immigrant, a drug dealer, or a terrorist. And it doesn’t really matter.”

Hernández became the first U.S. citizen killed by active U.S. troops on U.S. soil since Kent State in 1970, according to the film. After the teen’s death, Pres. Clinton, who had augmented the troops Pres. George H.W. Bush had first installed, pulled all armed military from the border. In May of 2006, nine years after Hernández was killed, Pres. George W. Bush ordered the return of armed troops to the U.S.-Mexico border, now to battle immigration and the “war on terror”, rather than the “war on drugs”. (They claim to work in only administrative and other support duties, but last summer I saw a patrol in a military helicopter, well-armed, investigating movement — me and some humanitarian workers — in the desert near the town of Arivaca.) And Pres. Bush calls this part of his “comprehensive immigration reform”.

But even a soldier helping construct a fence on the border in Naco, Ariz., in 2005 tells Fitzgerald that “the military is not the answer” to our border problems. Hernández’s killing reinforces that idea, but it’s really a symptom. As a barrier against immigration, border walls and militarization have proven only to cause more deaths because they force immigrants to attempt crossings in more dangerous terrain; they serve as a deterrent to immigrants’ leaving the USA as part of natural migration patterns; and they cost the tax payers millions upon millions of dollars. As a deterrent against terrorists, well, the Border Patrol’s most-trafficked sector — Tucson, Ariz. — had found no evidence at all of terrorist activity, as of last summer when I spoke to them, citing distance from any important would-be targets of attack. More alleged terrorist activity has been discovered closer to our border with Canada — in Detroit and Buffalo. Still, after 9.11.01 authorities closed the Redford river crossing of the Rio Grande, which, according to Madrid, means “we cannot cross the river we have been crossing for 12,000 years.” The closing seems logical enough, considering, after New York and D.C., Redford was surely next on al-Qaeda’s list.

Technically, The Ballad of Esequiel Hernández looks good. There’s one particularly gorgeous shot early on of a military convoy in the desert. The desert shots, in general, are stunning. The talking heads pop up in a good mix of places, sometimes seated, sometimes walking, sometimes indoors, sometimes out, sometimes actually doing things. And Fitzgerald really cut it together well. There’s a compelling progression to the story, and he got so many people with so much to say that the film doesn’t get tiresome.  His editing has a pleasant rhythm, balancing well the desert scenes, the interviewees in offices and homes, and the press footage. The Hernández family comes across as strong but still devastated. This is yet another film that humanizes the “goat-herders” and the “Mexicans”.

But the most intriguing interviews come from the Marines. Seeing their progressions through life really humanizes them, too — an important thing for both hawks and doves to see. Ray Torres, who finished his tour of duty and became a cop, fiercely defends his former mates and puts his son to sleep every night with the sounds of a music box that plays the The Marine’s Hymn. (The song begins, “From the halls of Montezuma”, referring to the U.S. Marine attack on Mexico City in 1847, which resulted in an occupation of the city.) Ronald Wieler has established a life he loves with a family and a job in Michigan. And James Blood, who left the Corps after Hernández’s death, went from fighting the “war on drugs” for the government to losing it personally. His dependency on meth lost him his wife and his kids, and he’s trying to get back on his feet. All three provide amazingly candid answers to Fitzgerald’s questions. Watching Wieler and Blood cry in remorse is rather breathtaking.

At the heart of a film like this lie the people and the story, and you can’t beat this one with a stick. (Because the other guys have M-16s.) But maybe you can do something armed with information. Fitzgerald provides a torrent of it.

He also leaves us with a terrifying archival image: George H.W. Bush — who would shortly find a way to circumvent the 90-year-old posse comitatus law, allowing him to put the first U.S. troops on the border since 1914 — finishes his inaugural address. We see Barbara next to him and Laura behind him. In slow motion, he steps aside, revealing in his place a younger, as-yet-untested version of our current President Bush, grinning and applauding. It’s creepy as all get-out.