TUCSON, Ariz. (CN) – There will be no third criminal trial for a U.S. Border Patrol agent acquitted twice in the death of a Mexican teen he shot in 2012 through an urban fence separating Arizona from Mexico, federal prosecutors said Thursday.
Another voluntary manslaughter trial would be double jeopardy under the U.S. Constitution for Lonnie Swartz, who was acquitted of second-degree murder and involuntary manslaughter in the death of Jose Antonio Elena Rodriguez, Assistant U.S. Attorney Mary Sue Feldmeier wrote in a notice filed Thursday in U.S. District Court.
“The United States of America respectfully submits that the prosecution in this matter has been terminated by the jury’s finding of not guilty on the lesser included charge of involuntary manslaughter,” Feldmeier wrote in a notice canceling a Dec. 13 hearing before U.S. District Judge Raner Collins, who presided over both previous trials.
Swartz has been on administrative leave since Oct. 10, 2012, when he opened fire through a fence between Nogales, Arizona and Nogales, Mexico, killing Elena, who was 16. The teen had been lobbing rocks up and over the 36-foot barrier, trying to distract agents who were chasing smugglers returning to Mexico from a run to drop marijuana in the U.S.
Swartz testified in both trials that he was scared and trying to protect himself, fellow agents and a police dog from the falling rocks, which he had been trained to consider a deadly threat that allows deadly force in response.
Video captured by Border Patrol cameras shows Swartz firing for 34 seconds from three different positions, moving slowly along the fence, stopping to reload and fire at what he testified he thought was a second rock thrower.
“Sir, this situation is unfolding in seconds. Seconds. I elected to defend myself,” he tensely told Assistant U.S. Attorney Wallace Kleindienst from the witness stand during his second trial last month. “My focus was solely on the rocks coming over that fence and stopping that action.”
Swartz said he remembers firing only the first three shots and seeing Elena fall, he testified.
“That’s when things started to get distorted. Fuzzy? I don’t know how to word it,” he testified. He kept firing only because he thought he saw a second person throwing rocks, he said.
Key testimony in both trials centered on which shots killed Elena.
If, as prosecution experts testified, the boy fell after the first three shots but was alive while Swartz kept firing, then the killing was murder, prosecutors said, because the threat was eliminated after the first shots.
But if one of the first shots killed the teen, as defense attorneys contended and defense experts testified, the other 13 shots Swartz fired were a mistake but not a crime, because any shots fired to eliminate the treat were justified.
In April, a jury acquitted Swartz on a second-degree murder charge but deadlocked on voluntary and involuntary manslaughter charges. Prosecutors re-tried the manslaughter charges, but a second jury acquitted Swartz on Nov. 21 on the lesser charge but gave no answer on voluntary manslaughter.
Swartz’s legal troubles are likely not over. Elena’s mother, Araceli Rodriguez, sued Swartz over her son’s death, and the Ninth Circuit ruled earlier this year that he is not protected from civil action by his role as a law enforcement officer. That case is pending.
Neither defense attorneys nor prosecutors responded to a request for comment after business hours Thursday.