Ex-Border Patrol Agent Acquitted in 1992 Slaying

A federal jury in Phoenix acquitted a former Border Patrol agent Thursday in the slaying of an unarmed drug-smuggling suspect who was shot in the back as he fled through a canyon toward the U.S.-Mexico border.

Prosecutors had charged Michael Andrew Elmer, 30, with civil rights violations and obstruction of justice in the 1992 shooting of Dario Miranda Valenzuela, a 26-year-old Mexican national. Elmer shot Miranda with a high-powered rifle, allegedly attempted to hide the body and persuade his partner to cover up the incident, then went drinking with fellow agents instead of reporting the death, according to testimony.

A state jury had previously cleared Elmer of murder and obstruction of justice in the incident near Nogales, Ariz. Elmer resigned from the Border Patrol after the shooting.

The federal jury deliberated about 4 1/2 hours before deciding the highly sensitive and emotional case, the first in memory in which the government has charged a Border Patrol agent in a shooting death, according to prosecutors. The reactions Thursday ranged from jubilation to outrage.

“Twelve neutral people sat down and analyzed the evidence and came to a decision,” said Michael Piccarreta, Elmer’s lawyer. “That’s what the system is all about. . . . It was a self-defense shooting.”

Piccarreta argued that Elmer was a frightened soldier in a harrowing war on drugs who made a split-second decision to fire after mistaking a canteen on the fleeing Miranda’s belt for a holster.

But a prosecutor said that the jury made its decision in spite of uncontested evidence, including testimony from the agent’s partner, that Elmer recklessly and knowingly committed a crime.

“People have trouble convicting police officers,” said Assistant U.S. Atty. Thomas Perez, who added that the government had spent almost a year preparing the case. “Elmer and his partner were two reckless individuals who decided that the rules didn’t suit them, so they made up their own rules, which ultimately had deadly consequences.”

Circumstantial evidence that Miranda was involved in drug running may have played a role in the verdict, Perez said. Miranda was carrying a small bag of marijuana, and cocaine was found in his system.

Immigrant rights advocates and representatives of the Mexican government said they were stunned.

“It is a decision that we find inexplicable,” said Nicolas Escalante, consul general of Mexico in Phoenix. “We felt that the government presented the proof brilliantly. . . . It is lamentable.”

An attorney representing Miranda’s family in a civil lawsuit declared that the speedy verdict indicates that the jury was racially biased in favor of the white Border Patrol agent and against the Mexican victim. The jury consisted of eleven whites and one African American.

“It clearly states that the jury system does not work,” said lawyer Jesus Romo, who is handling a civil case brought by the slain man’s family. “The consequences of this verdict are enormously adverse to our community. . . . It will instill more fear in the victims. They are already very afraid to report incidents of abuse.”

Federal civil rights prosecutions of alleged Border Patrol misconduct are rare. Border incidents often occur in remote areas and involve illegal immigrants, who tend to be reluctant witnesses.

Moreover, a string of incidents in the Arizona Border Patrol sector and elsewhere in past years have revealed that the patrol’s slow-moving internal oversight system is hampered by a code of silence among some agents.

When the Miranda shooting took place in June, 1992, some described it as the Rodney G. King case of the Border Patrol. The setting was a dangerous drug-running corridor where heavily armed agents had been fighting a tense battle against traffickers, a campaign that degenerated into widespread use of warning shots and other unauthorized tactics, according to testimony.

About two months after Elmer’s first acquittal on state charges in December, 1992, federal prosecutors began preparing the case alleging that he violated the civil rights of Miranda and another suspected courier accompanying him, and obstructed justice by trying to enlist his partner, Agent Thomas Watson, in a cover-up.

Watson was the government’s star witness against Elmer. He testified that he fired warning shots upon spotting the suspected drug runners and that Elmer then fired six or seven times at Miranda from a distance of about 150 feet. Watson said he feared for his life when Elmer, holding his rifle in his hands, dragged the body toward the international boundary, told him he planned to bury the body the next day and asked “Do you have a problem with that?”

Elmer then went to a parking lot to drink beer with fellow members of a drug interdiction team. Watson reported the shooting about 15 hours later; he was fired by the patrol for the delay.

The testimony against Elmer also featured officials from the Border Patrol academy who described his training and an expert who asserted that there was enough light in the canyon for Elmer to see that Miranda was unarmed.

Although it acknowledged that Elmer broke Border Patrol rules, the defense contended that Elmer was being unfairly second-guessed for a justified reaction to what he perceived as a threat to his life. The jurors, who were brought to the scene of the shooting for a firsthand look, clearly sympathized with the difficult task of the Border Patrol at an increasingly militarized border, Piccarreta said.

And he rejected assertions that the race of Elmer, Miranda or the jury played a role in the outcome.

“I think those comments are racist, that anyone from any race would ignore the evidence or ignore the law,” Piccarreta said. “It had nothing to do with race.”