TUCSON (CN) — The shifting opinions of doctors who performed an autopsy in Mexico could prove central in the second-degree murder trial of a Border Patrol agent who shot a Mexican teen in 2012 through a wall separating the United States from Mexico.
Lonnie Swartz fired three shots from an urban street in Nogales, Arizona into Nogales, Sonora on Oct. 10, 2012, then moved about 45 feet and fired 10 more shots, reloaded and fired three more. Jose Antonio Elena Rodriguez, 16, fell dead on a sidewalk about 30 feet from the wall.
Prosecutors and defense attorneys agree Rodriguez was part of a group throwing rocks to distract agents who were trying to catch suspected drug smugglers seen climbing the fence.
Physicians Absolon Madrigal Godinez and his boss, Javier Diaz Trejo, performed the autopsy. Both men said early in the investigation that they believed the first shot hit the boy and killed him instantly, but both changed their opinions since meetings with U.S. officials in 2014 and 2016.
“In this case, we didn’t have the information from (U.S. investigators). The opinions that we had at that time were based on the information that we had at that time,” Madrigal testified Wednesday, citing video from the scene, ballistics tests, crime scene evidence and chemical analysis as information they did not have.
Thirteen bullets hit Elena, 10 from behind and three in the neck or head.
One shot that hit him in the back shattered his spine, an injury that would paralyze him from the waist down, and another shot tore through his right earlobe, instantly killing him as it went through his head from right to left, Madrigal said.
If that shot to the head was first, while the threat of falling rocks was present, then the shooting was justified, defense attorney Sean Chapman has said.
If one of the first shots shattered his spine, leaving him alive but immobile, the killing was murder, because the threat had been eliminated and Swartz fired 13 more shots, Assistant U.S. Attorney Mary Sue Feldmeier has said.
Rodriguez was found with his right cheek on the ground and scrapes on the left side of his face and forehead, his front teeth broken. He had scrapes on the backs of both hands, which Madrigal and Diaz both have said indicates he did not reach out to break his fall.
Defense attorneys claim he didn’t break his fall because he was dead from the first shot, which hit him in the head. Prosecutors say his reflexes simply didn’t have enough time to raise his hands after the shot to his spine threw him to the ground.
“Would the abrasion on the outside of the hands and the left side of the face be consistent with (the gunshot that shattered Rodriguez’s spine)?” Feldmeier asked Madrigal on Wednesday.
“Yes,” Madrigal said, adding that the victim would have crumpled instantly and may not have had time to consciously break his fall.
In 2014, however, Madrigal and Diaz, according to notes taken by two attorneys from the U.S. Attorney’s Office, said the scrapes on the victim’s face likely came when Rodriguez was thrown against a wall by the force of the fatal head wound, Chapman said.
“That’s possible, correct?” he asked.
“It is possible,” Madrigal said.
Diaz testified Wednesday that in 2014 he believed the fatal head shot came first. Then in 2016, after reviewing his autopsy report written shortly after the killing, he said it could have been the head shot or the spinal wound that made Rodriguez fall.
“I think it was the wall,” Diaz testified Wednesday under questioning by Feldmeier.
The prosecution is expected to rest its case Thursday, which is expected to last another two weeks. The defense is to start calling witnesses Monday.