A Mexican border bandit killed in a shoot-out with police died from a bullet fired close to his head, according to a San Diego pathologist who studied laboratory tests of tissue samples taken from the exhumed body of the man.
Dr. Hormez Guard said the laboratory tests reveal traces of gunpowder and contradict the official autopsy and the police account of the shooting, which says that Julio Arroyo Zaragoza, 33, was shot from 30 to 40 feet away. Arroyo's brother, Jaime Arroyo Zaragoza, 23, who is charged with robbery and attempted murder in the incident, has told his attorney and family members that police killed his brother after he was wounded and disarmed.
San Diego attorney Jose Tafolla said Wednesday that based on the results of the laboratory tests, he will ask for an investigation by federal and county grand juries of police conduct in the shooting. Tafolla added that if the county grand jury determines that police acted in a criminal manner, he will ask the state attorney general's office to prosecute rather than the county district attorney's office.
"I think that what we have here is a federal violation of the victim's civil rights and a criminal conspiracy on the part of police. I don't think you can ask the district attorney to prosecute the police, if in fact they should be prosecuted, after his office has cleared them of any wrongdoing in the shooting," said Tafolla.
Dr. Guard, who was hired by Tafolla as a medical consultant, said the second autopsy done on Arroyo's body "shows there is a great deal of gunpowder under the skin." Guard said the lab tests prove that Arroyo was executed by police.
The body was exhumed Monday at Tafolla's request from a Tijuana cemetery, where it was buried three months ago, and examined by Tijuana coroner Gustavo Salazar and Guard.
San Diego County Coroner David J. Stark acknowledged Wednesday that Guard had performed tests that his office failed to, but should have performed.
San Diego police reported that Arroyo died on May 4 when he exchanged gunfire with members of the Border Crimes Prevention Unit--composed of both San Diego police and Border Patrol agents. Homicide Lt. Paul Ybarrondo said Arroyo was shot in the middle of the forehead by a bullet fired from 30 feet away by Officer Cesar Solis. The shooting occurred at night in a canyon a half-mile east of the San Ysidro port of entry and a quarter-mile north of the international border.
On Tuesday, tissue samples and a piece of the skull were removed from the body and brought to the Pathology Diagnostic Clinic in San Diego for laboratory tests. Guard said the tests show that Arroyo died from a contact wound, which occurs when the barrel of a gun is placed on the skin or very near to it. The test results corroborate a written autopsy report released Wednesday by the Baja California district attorney's office describing the fatal injury as a contact wound.
"When a gun is placed on the skin, all the gunpowder goes underneath the skin . . . I would like to see the brain, because if there was gunpowder under the skin, there should be traces of gunpowder in the brain. The bulk of the gunpowder went in the brain," said Guard.
He added that additional tests are being done to look for traces of gunpowder on the skull bone around the entry wound. The results of those tests will be known in two days.
An autopsy done on May 6 for the coroner's office by pathologist David M. Katsuyama made no comment about traces of gunpowder around the wound, said Stark. But Stark acknowledged that Dr. Katsuyama made only a visual inspection and did not do any microscopic examination.
"Dr. Guard is doing tests that Dr. Katsuyama did not do. Dr. Katsuyama viewed the tissue with the naked eye. But Dr. Katsuyama still feels quite confident he is correct. But if he had to do it again, he would've ordered microscopic tests," said Stark.
In answer to Guard's request to examine Arroyo's brain, Stark said he is not sure if the brain or brain tissues were kept as evidence.
Stark and Steve Casey, a spokesman for the district attorney's office, questioned Guard's motives and the results of the laboratory tests. The two men noted that Guard resigned from the coroner's office in 1984 after several disputes with Stark and prosecutors over autopsy results and procedures.
Casey said that Guard's findings "fly directly in the face" of Katsuyama's autopsy report.
"Not only did it not appear to be the case, it appeared very strongly to be other than (a close-up shooting) when we received it in May," said Casey.
But he added that the district attorney "would be most anxious to see the results of the lab tests."
Guard, informed that Casey and Stark questioned his motives, replied, "You tell them that they did not perform the right tests. Dr. Katsuyama did not take the time to examine the tissues around the wound . . . This shows the lack of professionalism and high level of incompetence in that office."
Katsuyama and Police Chief William Kolender could not be reached for comment Wednesday.
According to the police account, Julio and Jaime Arroyo and an unidentified third suspect were robbing illegal aliens in the border canyons on the night of the shooting. Police say that Julio Arroyo died when police officers and agents returned fire after he emptied his five-shot revolver at them.
Julio Arroyo allegedly hit Agent Fred Stevens five times. Stevens, 39, was saved by his armored vest and is back on duty.
Jaime Arroyo was arrested during the shooting, and is expected to go to trial next week on robbery and attempted murder charges. Although Jaime Arroyo fired no shots, he was charged as an accomplice in the shooting of Stevens.
Tafolla said Wednesday he is considering filing a wrongful death lawsuit against the Border Patrol and San Diego police on behalf of Julio Arroyo's widow and his mother.
Katsuyama noted in his autopsy report that the gunshot wound to Arroyo's head had "several stellate disruptions extending from it." Stellate disruptions--star-shaped lacerations extending from a bullet entry wound--are usually indicative of a contact wound, pathologists told The Times.
However, in June, after The Times inquired about the autopsy report and the possibility that Arroyo may have died from a contact wound, Katsuyama said that he no longer believed that the lacerations were stellate disruptions. He also said that his autopsy supported the police version that Arroyo was shot from 30 to 40 feet away.