What Happens When Soldiers Become Witnesses for the Prosecution?
Last month a bipartisan group of 62 congressmen calling themselves the Immigration Reform Caucus demanded President Bush militarize the U.S. border. The representatives want the president to deploy as many as 20,000 federal troops. As a pretext, they offered the “war on terror” and a spate of border shootings by the Mexican military. Fortunately, the Bush administration has shown little interest. Security czar Tom Ridge is said to have told legislators the White House opposes stationing troops for “cultural and historic” reasons.
One can’t but wonder if the “historic” reason uppermost in Bush’s mind is the senseless killing of Esequiel Hernández, which occurred in Redford in May of 1997, during Bush’s first term as governor. The 18-year-old boy died while watching over his family’s goats. Hernández was carrying his .22-caliber World War II-era rifle as he often did in the wild brush country surrounding his house. This time, he apparently fired unknowingly in the direction of a group of four camouflaged marines on patrol for an anti-drug task force called Joint Task Force Six. One of them blasted him with an M-16. Two months after the killing, JTF-6 ended its ground patrols.
The memory of this tragedy is still fresh in West Texas. For the rest of the nation, all it will likely take to forget the incident is one successful foreign bomber discovered to have entered the U.S. through a land crossing. After that, pressure to call in the troops will increase dramatically. But if the administration needs more reasons than the killing of an innocent boy to demonstrate why the armed forces shouldn’t patrol the borders, they need look no further than what took place in a courtroom in Pecos this past June. For perhaps the first time in the history of JTF-6, soldiers acted as witnesses for the prosecution in a drug case. What happened when the armed forces got pulled into a civilian criminal proceeding illustrates just why policing and soldiering are better kept separate.
It begins five years ago, on March 31, 1997. That night a Suburban rented by the Border Patrol pulled over on the Chispa Road, which runs between the Van Horn and the Sierra Vieja mountains down to the Rio Grande. It’s a remote area of parched West Texas ranch land where three counties intersect: Presidio, Culberson, and Jeff Davis. The passengers of the Suburban, a team of six experienced soldiers from the Army’s 51st Infantry, piled out and faded into the night.
The JTF-6 was formed in 1989, aimed specifically at anti-drug efforts in the southwestern border region, but by the mid ’90s its scope of operations had expanded to the entire continental United States. The goals of JTF-6 have always been twofold. The first is to support civilian law enforcement in its efforts to stop illegal drugs. To this end, the task force continues to this day to provide training, intelligence, aviation reconnaissance, engineering, and infrastructure development. Additionally, JTF-6 activities, open to all active duty branches of the armed forces, present an opportunity for the military to practice in the field. As one of the infantrymen on that Chispa Road mission would later recall: “Our instructions from the commander were to do things like a wartime training mission.”
Each soldier that night carried 100 pounds of weight including water, 12 meals, a spy scope, binoculars, and night vision goggles. The soldiers split up into two groups of three. A forward observer team found a depression on a cliff about 1000 meters from a low-water crossing on the Rio Grande called Porvenir. Another group of soldiers deployed far to the rear to act as a command post. They dug in for a seven-day mission to watch the river and the Mexican village on the other side. Under normal circumstances, the area is only monitored by the Border Patrol through three motion sensors on the Chispa Road.
The JTF-6 soldiers in the forward observation post huddled under a camouflage tent, monitoring the crossing in three-hour shifts during the day and for 60-minute turns at night. Mostly they saw the villagers on the Mexican side go about their daily routines. Then on the fourth night, sometime a little after 9:00 p.m., one of the men, Sgt. Brent Bargewell, witnessed something strange and woke the others. A truck they identified as a Ford stopped on the U.S. side facing Mexico, and appeared to flash its lights. It then crossed the river, traveled about 800 meters, and stayed in Mexico for approximately 20 minutes. Using an image intensifier on their night vision goggles, the soldiers could see the figures of the driver and at least one other man in front of the truck’s headlights. “It looked busy,” recalled one. Up until that point, they had seen little if any nighttime activity.
The two teams carried four different kinds of radios: two to contact their army superiors stationed in Marfa, one to communicate directly with the Border Patrol, and one for messages between the recon sites. About 9:30 p.m. the truck turned around and headed back into the U.S., by which point the soldiers had alerted both the post in Marfa and the Border Patrol. Around that time, a vehicle on the Chispa Road tripped two Border Patrol sensors, which are spaced close together to identify if a vehicle is heading north. Border Patrol agent Lonny Hillin, accompanied by his canine helper Ronny, was dispatched to investigate.
The first vehicle Agent Hillin intercepted, a Chevy Blazer, contained an area family long suspected of involvement in drug trafficking. After noticing a larger than normal spare tire, Hillin proceeded to search the Blazer with his dog. Suddenly, he saw two trucks heading toward him. When they glimpsed his Jeep Cherokee, clearly marked Border Patrol, both drivers turned around on the Chispa Road and sped off back toward the river. Hillin gave pursuit down the bumpy dirt road following what he says was a stakebed truck and a white Ford pick-up. He radioed for help from the JTF-6 soldiers asking if they could intercept the two vehicles. Negative, the soldiers replied. They only had authority to observe and relay information.
Further down the road, the stakebed spun out, almost hitting Hillin. Two men bailed out on foot and took off into the scrub, where they disappeared, never to be seen again. Hillin continued and saw that the white Ford had also stopped. Then the Border Patrol agent claims he heard gun shots and felt bullets whistle past his head. He returned fire, yelling “Border Patrol” in both Spanish and English. After a few moments, a man whom Hillin recognized as Sol Thomas, a local lawyer and rancher, came into view holding a .357 magnum. Thomas, who leased a ranch at the bottom of Chispa Road and was Hudspeth county attorney (pro-tem) from 1991 to 1994, claimed to have fired into the air out of fear. After ordering Thomas to drop his pistol, Hillin handcuffed him. Then he and his dog returned to search the stakebed truck whose occupants had disappeared. In a hidden compartment Hillin found 526 pounds of marijuana.
After being held in jail for four days, Sol Thomas, then 55, was released on $50,000 bail and charged with intent to distribute marijuana. A grand jury in Pecos heard testimony, but the U.S. Attorney’s office in Alpine didn’t indict him right away because of the complexity of the case. Three years later, after delays and false leads that he refuses to detail, U.S. attorney Jim Blankinship reopened the case, and in 2001, he indicted Sol Thomas, charging him with possession of marijuana with intent to distribute by aiding and abetting and possession of a firearm in the commission of a drug-related crime.
Blankinship understood that in order to place Thomas crossing into Mexico and conferring with co-conspirators in his white Ford pick-up, he would need the testimony of the JTF-6 soldiers. Finding them proved to be difficult. “These guys were in special units,” notes Blankinship’s co-counsel, Asst. U.S. Attorney Jay Miller. “They go places where people don’t know where they have been deployed. It’s hard to track them down.”
In a post-September 11 environment, the army wouldn’t allow one of the key witnesses, Sgt. Charles Solinero, to travel to Texas. Instead he sat for a deposition at a military base in Savannah, Georgia. “I learned very quickly that in a war-time situation, the Justice Department takes a back seat to the Defense Department,” recalls Blankinship. Finally, after several postponements, three other soldiers at the Porvenir crossing that night were permitted to travel to Pecos.
At the trial, Lubbock-based defense attorney Dan Hurley presented Thomas as a kindly grandfather, whose children included a missionary and an army helicopter pilot. Hurley depicted a man trusted by the government to deliver the mail, which he did with his family on a contract basis throughout the Rio Grande Valley. A judge from Lubbock, among other local officials, testified that Thomas was “honest, law-abiding, and peaceable.”
Unlike Esequiel Hernandez, Hurley pointed out, Thomas knew the soldiers would be in the area, having given permission for them to be on his land. He traveled armed because he feared smugglers would find out. That night he had been innocently working on his ranch when he found himself caught up in a drug operation. Hurley insinuated that Agent Hillin had a grudge against Thomas, because the lawyer had been on the other side in a case against Hillin’s stepdaughter. Hillin denied any animus.
As witnesses, the soldiers, bedecked with medals on their pressed uniforms, came across as clean cut and professional. Still, Hurley managed to impugn their testimony when Thomas’ son Pierce, an army captain who pilots Blackhawk helicopters, said he doubted they could have seen much with their night vision goggles because the ambient light from the car’s headlights would blur everything near it. “We are told to avoid artificial light with our night vision goggles,” he testified.
After three days of testimony, the jury deliberated little more than three hours before returning with a verdict of not guilty.
It’s doubtful the soldiers on the JTF-6 mission knew the shameful history of the U.S. Army and the Porvenir crossing–the reason why no settlement on the Texas side exists. Back in 1918, after attacks on three neighboring ranches by marauders thought to be associated with Pancho Villa, a company of Texas Rangers, a troop of the U.S. Eighth Calvary, and four ranchers rode to the small settlement of Porvenir, Texas, hoping to find some of the assailants. After a search failed to uncover anything but one gun owned by an Anglo, the Eighth Calvary withdrew to the outskirts of town. The Rangers and ranchers then rounded up fifteen men of Mexican ancestry, mainly poor farmers, and murdered them, orphaning 42 children. In some accounts they also burned houses. After the massacre, the survivors abandoned the village, fleeing across the border.
“The idea may be good to try and use what the military can do jointly with law enforcement, but as a practical matter it just doesn’t work out real well,” said Hurley after the Thomas trial.
In the end, the jury believed Sol Thomas more than Border Patrol agent Lonny Hillin. They believed the rancher even more than the U.S. army, whose technological prowess, so useful in war, faltered under the scrutiny of a courtroom. The difficulty in bringing the soldiers to testify in Pecos also underscores one of the main problems of their participation in civilian criminal cases. “I’m sure that if the military becomes [more] involved in law enforcement they are going to be subpoenaed to a lot of trials, and they will have to go to pre-trial hearings and that will conflict with their duties,” opines Hurley.
Distrust of a heavy-handed federal presence runs deep in West Texas. It goes back at least to the massacre at Porvenir and continues to the recent closing of the Lajitas crossing. The specter of the Hernández killing also hovered over the courtroom, although obliquely. During the trial, Blankinship made a point to a reporter of contrasting these soldiers with the ones at Redford. Hurley noted to the jury that Thomas had asked the Border Patrol whether the military would be armed and authorized to use deadly force. He characterized Thomas’ concern as “prophetic.” It doesn’t take a fortune teller, though, to see that if troops are stationed on the border as the Congressional Immigration Reform Caucus wants, trouble for both the Army and border communities will likely follow.