Jury to Decide in Border Patrol Murder Trial

TUCSON, Ariz. (CN) – The four-week murder trial of a U.S. Border Patrol agent who shot and killed a Mexican teen through an urban wall separating the U.S. from Mexico neared conclusion Monday as the jury began deliberations.

Agent Lonnie Swartz, a two-year veteran, shot Jose Antonio Elena Rodriguez, 16, through gaps in the metal fence on Oct. 10, 2012 from a street in Nogales, Ariz. Swartz was among agents responding to drug smugglers delivering 20 pounds of marijuana in the U.S.

Elena Rodriguez was among a group throwing rocks at agents while the smugglers, who escaped, scaled the wall to get back to Mexico.

Lead defense attorney Sean Chapman and lead prosecutor Wallace Kleindienst, an assistant U.S. attorney, laid out their cases for the jury in closing arguments of the 16-day trial.

Kleindienst chipped away at the circumstances required before Border Patrol agents are authorized to use lethal force. Means, opportunity and intent must all exist and none were present, he told the jury.

He questioned the means, holding up a palm-sized rock recovered from the scene and telling the jury that such rocks thrown from 90 feet away, up and over a 36-foot wall are dangerous, but not able to inflict grave bodily harm or death – a required threat to use deadly force. He noted that Swartz could have eliminated the threat by simply taking cover.

“If you can take cover, there is no means and no opportunity,” Kleindienst said, showing the jury slides of Border Patrol documents calling on agents to use deadly force only as a last resort.

All the other agents at the scene took cover, eliminating the threat, but Swartz calmly advanced toward the wall with his weapon drawn as he arrived on the scene, before the rocks started falling. He never saw a rock fall, according to his own testimony, Kleindienst said.

“It was not a last resort to walk across the street. He had time to reflect on what was happening,” Kleindienst said. After Swartz started firing, he kept firing into the same body because he saw movement, he said, noting that every bullet hit Elena Rodriguez from the back.

Chapman countered that in the heat of the moment Swartz thought he saw a second rock thrower and that nothing after the first few seconds – when Swartz made the decision to use lethal force – matters.

Firing at the fallen boy was a terrible mistake, but not second-degree murder, involuntary manslaughter, or voluntary manslaughter, other charges the jury has instructions to consider, Chapman said.

“Mr. Elena Rodriguez was killed within 10 seconds of when Agent Swartz elected to use deadly force. By the time he moved to a second position, Mr. Elena Rodriguez was dead … He made a mistake, but that’s not a crime,” Chapman told the jury.

Chapman called prosecutors’ contention that Elena Rodriguez was alive when he fell “speculation,” reiterating defense claims that the boy’s arms were up against his chest, palms inward, when he fell, because he was dead and couldn’t break his fall.

Swartz encountered rock throwers seven times in his two years as an agent, and each time he used force, although this was the only time he did not have less-lethal forms of force available, so he fired his weapon, Kleindienst said.

“That was his modus operandi. He was fed up, and he was going to use force, no matter what type of force he had available that night,” he said.

Chapman used the same evidence to show Swartz’s restraint. Seven times Swartz had encountered rock throwers, and each time he showed restraint, using only non-lethal force, because he had that option.

Chapman reminded the jury that they can’t view the events from their current perspective. Swartz was scared, he was under attack by weapons he had been trained to believe can be deadly, his fellow agents were also in danger and one had been hit by a rock.

“At this point it doesn’t really matter if (fellow agent) Wynecoop had been hit. What matters is Agent Swartz’s perception,” he told the jury. “He did it to defend his fellow agents. At the moment that he started firing, the rocking was ongoing.”

Had he believed the rock thrower was down and the threat eliminated, he would have stopped firing after the first three shots, but he thought there was still a threat, so he moved and kept shooting, Chapman said.

“That’s what his training dictated. Maybe some of us don’t like that, but that’s how they are trained, and that’s the law,” he said.

Elena Rodriguez’s mother, Araceli Rodriguez, sued the U.S. government over her son’s death. Her lawsuit is pending before the Ninth Circuit.

“He was doing nothing but peacefully walking down the street by himself when he was gunned down,” she said in her lawsuit. “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.”

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