A Month After Slaying of Border Bandit, Case Is Still Mired in Confusion

A month after San Diego police and Border Patrol agents were accused of executing a Mexican border bandit--and numerous scientific tests later--a defense attorney and prosecutors are no closer to agreeing on the events of the night of May 4 in the canyons near the San Ysidro border crossing.

“It’s one of those cases that’s going to end up with differences in the scientific opinions of both sides, and that’s not unusual,” said Jose Tafolla, the San Diego attorney representing the brother of the dead border bandit.

Prosecutor Dan Williams believes that the only way the issue will be resolved is by a jury.

Tafolla says that several laboratory tests conducted on skin and a portion of the victim’s skull support his contention that Julio Arroyo Zaragoza was killed with a gun placed on his head. Prosecutors and the county coroner say their tests support the police version of the shooting that Arroyo, 33, was killed by a bullet fired from 30 to 40 feet away.

In the latest exchange of arguments, San Diego County Coroner David J. Stark said Tuesday that laboratory tests conducted in Texas last week for the defense support his office’s findings. Stark said he learned of the tests through the pathologists’ grapevine and declined to say more about it.

Tafolla said the tests Stark refers to were inconclusive and that, while he is arranging for more forensic study, he is sticking by his claim that Arroyo was executed.

Tafolla and Deputy Dist. Atty. Dan Williams say that a plan to agree on an independent authority to examine the evidence to resolve the dispute has collapsed.

After an autopsy conducted in Tijuana in August and laboratory tests performed in San Diego, Tafolla said he was going to ask the state attorney general and the federal and county grand juries to investigate the shooting. But six weeks later Tafolla is proceeding more cautiously and, for the moment, is putting off calls for a new investigation. He said that he is awaiting the results of new ballistics tests on the weapons fired by officers and agents during the shoot-out before plotting his next move.

The district attorney, meanwhile, has not officially answered a request from the Mexican consulate to reopen the investigation. But the office is proceeding with the prosecution of Arroyo’s brother, Jaime Arroyo Zaragoza, who was arrested in the May 4 incident, will go to trial on Tuesday on charges of robbery and attempted murder. Tafolla is Jaime Arroyo’s lawyer.

A May 6 autopsy conducted by Stark’s office and subsequent laboratory tests performed by county pathologists supported the police version of the shooting. Police say that Arroyo was killed with a bullet fired from 30 feet to 40 feet away. San Diego police reported that Arroyo died in a shoot-out with members of the Border Crimes Prevention Unit, composed of San Diego police and Border Patrol agents.

Police said that agent Fred Stevens was shot five times during the gun battle, but was saved by an armored vest and is back on duty. Arroyo died in the nighttime shooting when a 9-millimeter bullet struck him in the middle of the forehead, at the hairline.

The county autopsy report noted “several stellate disruptions” extending from the wound. Several pathologists told The Times that stellate disruptions--star-shaped lacerations extending from the wound--are usually indicative of a contact wound. A contact wound results when the barrel of a gun is placed on the skin or very near it. But Stark said that the disruptions around Arroyo’s wound were not characteristic of a contact wound.

Jaime Arroyo, 23, has told Tafolla and family members that police killed his brother after he was wounded and disarmed.

Based on a second autopsy performed in Tijuana in August, and on an analysis of laboratory tests conducted in San Diego, Tafolla charged that Arroyo died from a contact wound. Tafolla accused police of executing the man.

The body was exhumed from a Tijuana cemetery Aug. 26, and Tijuana Coroner Gustavo Salazar conducted a second autopsy. Salazar reported that he found gunpowder in the skin around the wound and concluded that Arroyo died from a contact wound, contradicting the findings of the San Diego County coroner’s office. Two days later Dr. Hormez Guard, a San Diego pathologist, said that laboratory tests performed in San Diego on tissue samples taken during the second autopsy confirmed the existence of gunpowder around the wound.

Guard, a former county pathologist who is now a critic of the coroner’s office, said the gunpowder could only have come from a bullet fired at point-blank range.

On Sept. 6, three county pathologists tested the same tissue samples analyzed by Guard and reported finding no traces of gunpowder. Stark said the samples contained dark deposits but said that county pathologists believed that the residue was dirt.

On Tuesday, Stark said, “We are getting information from the forensic community that our original findings have been upheld by laboratory tests done out of state.”

Dr. Vincent DiMaio, a nationally recognized expert on gunshot wounds, said that he analyzed the tests performed in a Dallas laboratory last week. He declined to discuss his findings. DiMaio, whose office is in San Antonio, is the chief medical examiner of Bexar County, Texas. He referred all questions about the tests to Tafolla, who hired him to analyze the tissue samples.

Tafolla said DiMaio analyzed the same samples and “found some things consistent with gunshot residue.” He said the Dallas tests found traces of lead on the tissue samples. The lead could have come from the bullet or from the gunpowder, Tafolla said.

However, Tafolla declined to say whether DiMaio found traces of gunpowder or whether he determined that Arroyo died from a contact wound.

“The tests showed some traces of lead, which could have come from the bullet or the gunpowder. We have to eliminate these possibilities through other tests we are doing. But right now we’re going with what we found earlier,” Tafolla said. That was gunpowder.

Prosecutor Williams declined to comment on the Texas tests. Williams said he has received the tissue samples from Tafolla but has not decided if they will be analyzed further.

So, after two autopsies, an exhumation and numerous scientific tests in two states, the question about the mysterious deposits on the tissue, brain and skull samples remains unanswered. Are the deposits gunpowder, lead or dirt?

On Monday, Guard did not waver from his earlier conclusions, when he reported finding gunpowder deposits around the wound.

“The initial autopsy impressions (from the second autopsy) are mine and I stand by them,” Guard said. “I do see black powdery material inside the skull. I see it beneath the skin. There is no way that can be dirt. I still feel the shape of the wound cannot occur unless the gun is placed in contact with the skin. I feel this kind of wound cannot occur from a 40-foot distance. Period.”

Guard said he was not aware of any tests conducted after he completed his work in August.

“I left it to the attorneys to do what they want to do,” he said.

Meanwhile, Tafolla said that a defense criminalist is conducting ballistics tests on the weapons used by police and agents in the shooting. He said that results of the tests may not be available until early next week.

The guns were turned over to the defense last week, after police criminalists conducted a second round of ballistics tests.

The shooting has also resulted in a $10-million claim filed against the city on behalf of Arroyo’s widow and family. Attorney Dan Gallardo charged in the complaint that Arroyo “was executed while in police custody.”