April 7, 2008, a little after nine o’clock in the morning. Five men stood before the judge with their right hands raised. They wore suits in varying shades of gray with creases running down the backs of their trouser legs. Their haircuts and posture pegged them as military men, or police officers. They stated their names one by one, then all together they swore before God to tell the court the truth, the whole truth, and nothing but the truth. The bailiff led them away to the witness room. It was not till much later in the day that I realized one of those men—the one with black hiking boots, a short bristly mustache, the medium grey coat with the vague cowboy design stitched across the back—was the man who shot Juan Patricio Peraza Quejada.
February 22, 2203, a little before nine o’clock in the morning. Juan Patricio, nineteen years old and undocumented, was shot by a Border Patrol agent a few hundred yards from Annunciation House. His parents, Cesar and Irene, are here in the courtroom today. As the plaintiffs of this civil suit, they are accusing the Border Patrol of negligent behavior that led to the death of their son. Cesar and Irene flew into Juarez yesterday. When I walked with them into the courthouse this morning I felt that they seemed uncertain, a little intimidated, but also ready—ready for truths to be told, for accountability. Of course they were ready; they have been waiting for five years.
Enrique Moreno is lead counsel for Cesar and Irene. In his opening statement he recounted the particulars of Juan Patricio’s death. Juan was stopped and questioned by Border Patrol agents in the parking lot outside Annunciation House. He ran; a Border Patrol agent gave chase, caught up, hit Juan on the head with his steel baton; Juan escaped again; the agent caught up again and drew his gun, and Juan Patricio picked up a pipe. But the agent did not shoot. Standing within a few feet of the young man he’d been chasing, gun in hand, the agent realized deadly force was unwarranted. He retreated and called for backup.
Four more agents quickly arrived and surrounded Juan in the Calle San Antonio. Five guns were pointed at him. He was scared, and he was still holding the pipe. People were yelling, tension was high. Yet even then, the agents did not shoot. They had a strategy, Enrique told the court; they had tactics. The agents were trained in de-escalation, and they were attempting to defuse the situation.
But a sixth agent arrived on the scene, an agent who had finished his training only recently; I will call him VB. This agent did something that no one else had done: he fired his gun. Enrique emphasized this: the five other agents—who had been there longer, who had watched the scene unfold—did not shoot at Juan Patricio. Then Agent VB arrived on the scene, and less than forty-five seconds after his arrival, Juan Patricio was dead.
How could this have happened?
Six officers armed with guns confronted one young man armed with a section of pipe. We know how it ended, but how did it happen? How could it? Enrique told the court that the answer was clear: it happened because of negligence. What does that mean? Only this: that we as a society allow Border Patrol agents to carry guns, but with that allowance comes a duty: the duty to use ordinary care. Failure to fulfill this duty—failure to exercise ordinary care in the use of deadly force—is negligence. And on February 22, 2003, the failure to use ordinary care resulted directly in the death of Juan Patricio Peraza. This is the case that Mr. Moreno would be arguing.
The defense’s opening statement was short. Agent VB felt threatened, the defense lawyer said. He was protecting himself. The lawyer spoke for less than five minutes, and as he sat down I wondered if a short opening statement was a matter of style, or if he had nothing else to say—or if he was so confident that he intended to let the rest of the trial speak for itself. It was hard for me to read events as they unfolded. I have no frame of reference; I have never been to a trial before.
The prosecution called its first witness, GM. He had been a supervisor in the El Paso Police Department’s Crimes Against Persons unit (CAP) at the time of Juan’s death. He told the court about CAP’s standard protocols for investigating a homicide. First, the crime scene is secured. Suspects and witnesses are separated from each other immediately so that each one’s testimony will not be influenced by the others’. They are brought to the police station for questioning as soon as possible. The location is important, because the police station is where the detectives have the computers, software, and forms they need for questioning. The timing is important too, since it’s best to conduct interviews while the incident is still fresh in the mind of each witness.
Through GM’s testimony, it became clear that in the aftermath of Juan Patricio’s death, the police department’s investigation did not go according to protocol. GM arrived at the scene about an hour after the shooting, only to find that all of the Border Patrol agents involved—witnesses as well as the shooter VB—had been whisked away to Border Patrol headquarters. It was several hours before CAP was allowed to conduct interviews with the agents. In the intervening time, CAP’s detectives did not know where the witnesses were being kept or whether they were sequestered from each other. Instead of allowing the witnesses to be taken to the police station, Border Patrol management insisted that the interviews be held at the BP headquarters nicknamed “Camp Montana.” Further terms were placed on CAP’s interview with the shooter: VB had to be treated as a witness, not as a suspect, and the interview had to be conducted in the presence of (ready?) two FBI agents, a Border Patrol union representative, and a member of the Border Patrol El Paso Sector Evidence Team (SET), as well as VB’s lawyer. The prosecution’s second witness, the detective who conducted VB’s interview, would later testify that in 22 years as a homicide investigator he had never questioned a suspect with anyone else but a lawyer present, and he had never done an interview at Camp Montana. “We were there to take statements,” he said, “but Border Patrol was running the show.”
The prosecution’s third witness, Z, was the SET representative who had been present at Agent VB’s interview. He explained the role of SET: to conduct investigations and gather evidence about “critical incidents” that involve Border Patrol agents—car accidents, potential liability issues, cases of bodily harm. After explaining these responsibilities, Z was asked whether SET had conducted its own interview of VB regarding the shooting. No, said Z, SET did not interview VB or obtain a written report from him about the incident.
I found that surprising, but the most astonishing statement of the day was yet to come. Z went on to say that in these situations, it was standard practice to take statements from witnesses, but not from suspects. Suspects in shootings were not even required to file reports.
Let me see if I understand, said Enrique Moreno. If Agent Billings crashed his patrol car into a telephone pole while pulling out of a 7/11, does he need to file a report?
Of course, said Z.
But if he shoots a man, he doesn’t need to file a report?
That’s right, said Z.
Imagine that the blank space on the page is silence in the courtroom—speaking for itself.
Z’s testimony went on for a long time. Enrique Moreno asked questions, rephrased questions, revisited old points and teased out new ones. From the cautious and antagonistic interplay between witness and prosecutor, several themes gradually emerged: a less-than-thorough investigation of the “incident” by SET; a series of Border Patrol policies outlining the use of deadly force, which appeared not to have been followed; the existence of “intermediate forms” of force, like pepper spray and batons, to be used when firearms are unwarranted. Z testified, for example, that Border Patrol policies forbid agents to strike a person over the head with a baton: a damning little detail that appeared suddenly out of an otherwise long and looping line of questioning. The proceedings were tedious and riveting at the same time. I got the feeling that Z was answering as little as possible, and this made things drag on. Still, there was something about this officer—and indeed, about all the witnesses—that I respected: there was a courtesy, an honesty to many of their responses that stemmed, I believe, from acting in full accordance with their consciences; from the belief that they had nothing to fear. I could see their commitment to the work they do, and though I might disapprove of the work they do, I would hope to pursue my own work in the world with as much conviction.
I did not find the same conviction in the defense lawyer. Throughout the day he hopped up every few minutes with an objection, often with no legal grounds; the judge even fed him grounds a few times. (“…Are you objecting because the witness wasn’t answering the direct question…?” the judge hinted once.) The lawyer’s legalese came across as excessive and a little petty. But again, I don’t know how these things normally play out. And I am admittedly not an objective witness.
Z’s testimony lasted all afternoon. One of his principal roles in the investigation had been to make a transcript of the Border Patrol’s radio communications during the “incident.” Going through the transcript shortly before lunch, he mentioned that he had made a cassette recording of these radio transmissions. Where was the tape now? Probably filed over at the police station.
With those few words he unleashed a storm of controversy. Apparently the prosecution had been trying for months, unsuccessfully, to get a copy of the radio transmissions from the defense. (The defense said they had the transmissions on the radio system, but they couldn’t make a recording—to which Enrique Moreno replied, has technology gone backwards?) Now the court learned that a recording had been languishing in a file over at the police station the whole time. Enrique subpoenaed the tape during lunch, and when the court resumed in the afternoon he moved to admit the tape. The defense objected strenuously to this sudden addition of evidence. Enrique argued that this “new” piece of evidence could hardly be considered an ambush, since the defense had had access to this recording from the beginning. It was therefore new only to the prosecution. The tape was brought up and a tape recorder found. The judge left the room and we listened to the tape, which to me was mostly unintelligible. Even Z had said it had taken him days to decipher everything. It was late in the day and the judge finally adjourned the court, leaving the matter of the “Z tape” to be settled at a later date. We stood, the judge left; the two news reporters closed their notebooks. Aside from me and Ruben and the legal aids, they were the only audience.
Cesar and Irene were tired. It had been a long day. “Es duro,” Irene told me, and she placed her hand over her heart. They had listened to the proceedings through headphones, translated into Spanish. Enrique paused to speak with them before we took them back to the hotel. He said, I know the trial moves very slowly and there are lots of tiny details to go through. But I think it’s going well. And it’s important to us that you’re here, that you can follow what’s happening. He said, the two of you are the most important people in this courtroom.
Yes. Yes. I had almost lost sight of this. It was easy to get lost in all the binders and objections, the technicalities, the yes-sirs and no-sirs and for-the-records. I was bored sometimes today, and sometimes I was fascinated, but this trial is at its heart neither dull nor interesting, neither routine nor exciting. I have to remember this: beneath all the fuss of the trial, at the heart of things, lies the grief of two parents who have lost their son. Today they have seen the man who shot and killed their child. And even if they win their case, it will not be a victory; they have already lost. No. There will not be victory in this trial. But there can be truth. There can be. I believe in that.