TUCSON, Ariz. (CN) – Lonnie Swartz, a U.S. Border Patrol agent acquitted on a murder charge last month in the cross-border shooting death of a Mexican teen, will face a new trial on manslaughter charges.
In a status conference Friday, prosecutors and defense attorneys agreed to a 16-day trial in October. In Swartz’s previous trial, the jury deadlocked on the lesser charges of voluntary and involuntary manslaughter.
Several dozen protesters gathered outside the Evo A. DeConcini Courthouse before and after Friday’s hearing, holding signs with phrases such as, “10 Shots in the Back is Murder” and “U.S. Murder Patrol.”
Swartz, a two-year Border Patrol veteran, killed Jose Antonio Elena Rodriguez, 16, at about 11:30 p.m. on Oct. 10, 2012, after responding to a help request from other agents trying to arrest drug smugglers. Prosecutors concede that Elena may have been throwing rocks at the agents to help the smugglers escape. No one was arrested the night of the shooting.
Swartz claims he feared for his life and the lives of fellow agents when he fired 16 shots from his handgun through a metal fence separating Nogales, Arizona, from Nogales, Mexico. Ten bullets hit Elena, all from the back and most after the boy had collapsed.
The Border Patrol considers rock throwing deadly force and allows agents to use deadly force in response, although training documents presented during the trial indicate that it should be a last resort.
Defense attorney Sean Chapman said Friday that retrials are typical in murder cases that end in mistrial. Swartz, who has been on unpaid leave since the shooting, is struggling to pay his bills, according to Chapman.
“It’s financially devastating. He’s been supporting himself with construction work,” Chapman said after Friday’s hearing.
Assistant U.S. Attorney Mary Sue Feldmeier, who prosecuted the case along with Assistant U.S. Attorney Wallace Kleindienst, declined to comment.
Elena’s mother, Araceli Rodriguez, maintains her son was caught in the wrong place at the wrong time. She sued the Border Patrol in 2014 over her son’s death. That lawsuit is pending before the Ninth Circuit.
“He was doing nothing but peacefully walking down the street by himself when he was gunned down. He was not committing a crime, nor was he throwing rocks, using a weapon, or in any way threatening U.S. Border Patrol agents or anyone else,” Rodriguez said in her lawsuit.
Jury selection in the manslaughter trial is set to begin Oct. 23, and a motions hearing is set for July 30. Defense and prosecuting attorneys plan to submit numerous pre-trial motions, they said.