Battle Over Video Evidence Remains Central to Border Patrol Shooting

(Photo by Lourdes Medrano, CNS)

TUCSON, Ariz. (CN) —Attorneys for a Border Patrol agent who shot and killed  a 16-year-old boy in Mexico seek to show video clips outlining the risks routinely faced by agents as part of his upcoming trial.

“It would assist the jury in understanding what goes on along the border,”  Sean Chapman, part of the defense team for Agent Lonnie Swartz, said in Tucson federal court Friday.

It was the fourth day of pretrial motions in a case that’s trained the national spotlight on Border Patrol agents’ use of force in sometimes deadly incidents along the 2,000-mile international boundary between the United States and Mexico.

Swartz faces second-degree murder charges in the death of Jose Antonio Elena Rodriguez, who was on the Mexican side of the border in Nogales, Sonora, when the agent shot him repeatedly through gaps in the metal border fence. Swartz, who sat quietly next to his attorneys, is set to go to trial Oct. 12.

On Friday, federal prosecutors argued for exclusion of the video clips, which include depictions of rock-throwers aiming at agents as well as injured agents, cracked windshields on Border Patrol vehicles, and individuals scaling the border fence with bundles of marijuana strapped to their backs.

The video clips would only serve to inflame jurors and smear Elena by linking him to drug smuggling without evidence, Assistant U.S. Attorney Wallace Kleindienst said.

Whether the teen was involved in illicit activity is irrelevant because the case centers not on drug trafficking, but on whether the agent was legally justified in using deadly force on Elena, the prosecutor said.

“We need to try this case on the facts,” Kleindienst told U.S. District Judge Raner Collins.

Chapman argued, as he has in court documents, that Elena played a role in a drug smuggling operation the night he was killed on Oct. 10, 2012, and that a defense witness saw the teen in Nogales, Arizona, just minutes before the shooting.

“I’m not trying to besmirch the victim here,” Chapman said.

Rather, he said, the video clips, which Swartz had watched as part of his training, would shed light on the agent’s state of mind when he fired his gun. They also would go a long way toward educating jurors about the dangers associated with rock-throwing and other illegal activity in the border region, he added.

Kleindienst countered that jurors need no such education. “Everyone knows rocks can hurt.”

The night of the shooting, Swartz said he fired his gun because he was under attack from rock throwers.

He was one of the agents, along with assisting police officers, who went to a stretch of the high bollard-style fence between the two sides of Nogales after suspicious activity was reported there.

Two individuals were spotted climbing the fence back into Mexico, but Elena was not one of them. That night he was shot at least 10 times, primarily in the back.

His mother, Araceli Rodriguez, has been watching the court proceedings with other family members. Seeing the 6-foot-2 Swartz  in the courtroom stirred strong emotions in her.

“It’s frustrating and painful to see the man who killed my son,” she said in Spanish outside the courtroom. “It’s his fault that my son is no longer by my side.”

She scoffed at the notion that Elena may have been involved in drug trafficking, saying he was a typical teen who just happened to be walking in his neighborhood when he was shot.

Two surveillance cameras recorded the events of that night and video portions were shown in court June 19 for the first time. The defense wants to keep the captured scenes out of court, and expert witnesses on both sides have testified for and against the reliability of the recordings.

Judge Collins is waiting to hear more from defense attorneys before issuing a ruling on the shooting video and a video reconstruction that prosecutors want a jury to watch. He is also taking the matter of the training video clips under advisement.


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