TUCSON, Ariz. (CN) – A federal jury heard opening arguments Tuesday in the retrial of former Border Patrol Agent Lonnie Swartz, who was acquitted in April of second-degree murder in the 2012 shooting death of a Mexican teen.
Swartz opened fire through a 20-foot urban fence separating Nogales, Arizona, from Nogales, Mexico, in October 2012. He fired 16 shots, hitting Jose Antonio Elena Rodriguez 13 times – including 10 times after the boy fell. Swartz said Elena had been throwing rocks over the fence to distract the border agents, who were trying to catch two suspected drug smugglers fleeing back to Mexico.
The first jury in April deadlocked on manslaughter charges. Swartz is being retried on one count of voluntary manslaughter.
In his opening argument Tuesday, Assistant U.S Attorney Wallace Kleindienst said Swartz came to the scene primed for the shooting. The agent had drawn his handgun before he even got there, Kleindienst said.
“Nobody else who responded had pulled out his weapon,” he told the jury, and said Swartz kept firing after the teen fell for one simple reason – because the boy was still moving.
“All because the defendant, a U.S. Border Patrol agent, was fed up with rocks coming over the border fence and decided to do something about it,” Kleindienst said.
Lead defense attorney Sean Chapman countered in his opening argument that Swartz was in a “rapidly evolving” situation. He was scared, having been trained from his first day that rocks thrown over the border fence can be deadly, and his view was hindered by the fence, bushes, and darkness. He kept firing after Elena fell because he thought he was shooting a second rock thrower.
“He changed his position and fired at what he thought was a second rock thrower. At that point, he’s shooting at someone who is already dead. He just didn’t realize it,” Chapman said.
If one of the first three shots fired in the heat of the moment killed Elena, the manslaughter charge doesn’t apply, he said.
Prosecution witnesses will testify those first shots only wounded Elena, and that Swartz was firing because the boy was still moving. Kleindienst dismissed the notion that Swartz, a “crack shot” who hit 90 percent of his targets in qualifying with his handgun, was mistaken about who he was shooting.
Before the jury came into the courtroom Tuesday, attorneys clashed over last-minute prosecution witnesses, potential jury tampering, and some planned testimony.
Defense attorney Jim Calle called for a mistrial because on Monday someone left a photo of Elena Rodriguez on a chair in the courtroom where prospective jurors were sitting, and someone was seen talking to a prospective juror.
Assistant U.S. Attorney Mary Sue Feldmeir said no juror was compromised.
“Right now, there’s no shred of evidence that any of these jurors has been negatively impacted,” she told Collins.
U.S. District Judge Raner Collins denied the motion, but warned the audience against any attempt to talk to or influence jurors.
“If that happens, you’re going to jail,” he said sternly.
Collins grew exasperated when prosecutors said one newly announced witness will talk about serial numbers on the Border Patrol cameras that captured the shooting.
“I can’t believe we’re going to be discussing serial numbers on cameras at this point,” Collins said, apparently referring to the fact that the serial numbers did not come up during the five-week first trial.
The trial is expected to last at least three weeks.