Two sharply different portrayals of Border Patrol agent at murder trial

BROWNSVILLE — Two sharply different portrayals of Border Patrol Agent Joel Luna emerged over the two weeks of his trial on murder and drug trafficking charges. 

Was he a devoted public servant who protected the nation’s borders — not to mention his decorated military service in Iraq — and erred only when he gave shelter to undocumented family members who were up to no good?

Or was he the leader of a drug- and gun-trafficking enterprise, using his American savvy and fluent English to call the shots as his Mexican brothers — one of them an alleged Gulf Cartel hitman — did all the dirty work?

That’s the question the 10 women and two men of the jury will wrestle with over the next few days. They began deliberating Friday afternoon but asked state District Judge Benjamin Euresti for more time in order to render “an unbiased and fair verdict” in the case. The deliberations are to resume Monday morning.

The murder case began with the discovery of Franky Palacios’ headless body floating near South Padre Island in March 2015. Investigators traced him back to an Edinburg tire shop where Luna’s two siblings, Eduardo and Fernando Luna, both worked. They and two other defendants were charged in the summer of 2015. Joel was stationed at a Border Patrol checkpoint in Hebbronville at the time and was charged months later in the case — after police found a black safe stuffed with drugs and money (and his commemorative Border Patrol badge) at his mother-in-law’s house.

Fernando, the eldest of the three brothers, pleaded guilty to a cocaine possession charge in August and became the state’s star witness. He said last week that he was in the room when their youngest brother, Eduardo, allegedly shot and killed Palacios.

During closing arguments Friday, lead prosecutor Gustavo Garza, his voice sometimes rising with anger, took note of the gold-plated gun investigators say they seized from Joel’s safe. It was stamped with the word “Pajaro,” or  “bird,” said to be his brother Eduardo’s nickname in the powerful Gulf Cartel, which controls lucrative drug smuggling routes into much of Texas.

“This folks — this is a sicario’s gun,” Garza said while holding the gun and using the Spanish word for hitman. “The sicario is El Pajaro.”

Joel was working for the Border Patrol on the day of the murder and was not at the tire shop when Palacios was killed. But Garza is relying on the “law of parties” to prosecute him for the same four counts — including capital murder — on which the other defendants are charged.

He used a Mexican folk saying to describe the legal concept to the largely Hispanic jury: “Tanto peca el que lo mata como el que le sostiene la pata,” or, “He who kills someone is just as guilty as he who holds him down.”

He reminded jurors that Joel’s brothers moved into his house when they fled violent Northern Mexico in 2013, that Joel bought the safe and that investigators found it loaded with contraband in November of 2015.

“Who is managing and controlling everything? The safe? The money? The dope? The guns? Everything,” he said, half shouting. “Right here," he said, gesturing to Joel. "Mr. U.S. Border Patrolman.” He also said it was Joel who had knowledge of guns and “who controls the English language.”

“So No. 1, on top of the food chain, is right here: Joel Luna,” he said. “Who’s second? Who’s the sicario? Right there, Eduardo Luna, El Pajaro. Who’s used and who cooperated knowingly? Fernando.”

Garza got no dispute from Joel’s attorney, Carlos Garcia, about two of the three defendants.

“Congratulations, Mr. Garza,” Garcia said. “You got the bad guy. Yes, my client’s brother [Eduardo] is the bad guy, along with his older brother Fernando. But [Joel] is not one of them.”

But Garcia did acknowledge that Joel took in his brothers and their families at a time of need — and that as federal law enforcement official he had no business providing a home to undocumented immigrants even if he was related to them.

“Damn it, his brothers put him in a terrible spot, a horrible situation,” Garcia said. “Did he screw up? Yep, he screwed up, as a Border Patrolman he shouldn’t have given them shelter. He should not have done that. But he’s not on trial for that.”

He said he would leave that matter to federal authorities.

As for the criminal charges against his client, Garcia cited evidence that Joel’s fingerprints were only found on a couple of personal items in the safe, but not the drugs or weapons. Nor was there ever any proof offered that Joel had the combination to the safe — which he said became a “hot potato” once Eduardo got arrested.

While Garcia was busy distancing Joel from the contraband-loaded safe, his little brother’s attorney, Rebecca Rubane, did her best to tie him right back to it.

She directly blamed older brother Fernando for the murder, but she said his co-conspirator was not Eduardo but rather the middle brother. The agent.

“Now, who did [Fernando] have the agreement to participate in these activities with?” Rubane said. “Well, who had nearly $90,000 in their possession? Joel. Who had over 400 grams of cocaine in their possession? Joel Luna. Who had all the ammunition and all the guns in their possession? Joel Luna.”

Garza, the prosecutor, was more than happy to revel in all the familial finger-pointing when he got the last word after the defense attorneys were done. Garza said that when the case began, a sobbing Fernando told the jury that his brothers were “involved.”

“And it’s more interesting that the one brother Joel comes up through his attorney and tells you that El Pajaro, Eduardo, is responsible. And then [Eduardo’s attorney] comes and tells you that it’s ... Joel,” he said. “You know what my observation of that is? Simple little me? They are corroborating what Fernando said.”

Related Tribune coverage:  

• When Franky Palacios Paz was found floating naked and decapitated off South Padre Island, the local sheriff thought the murder would lead investigators back to Mexican drug cartel violence. He didn't expect a U.S. Border Patrol agent to be among those arrested.
• In an unusual twist to an already unusual case, federal immigration authorities are questioning the nationality of a U.S. Border Patrol agent accused of capital murder and drug cartel ties in deep South Texas.