Sides Prep for Retrial in Fatal Cross-Border Shooting by Agent

In this Dec. 4, 2017 photo, a portrait of 16-year-old Mexican youth Jose Antonio Elena Rodriguez, who was shot and killed in Nogales, Sonora, Mexico, is displayed on the street where he was killed that runs parallel with the U.S. border. (AP Photo/Anita Snow)

TUCSON, Ariz. (CN) – A second federal trial starts Tuesday for a former U.S. Border Patrol agent who six years ago this month opened fire through a fence at the U.S.-Mexico border, striking and killing a Mexican teenager.

Lonnie Swartz, a two-year Border Patrol veteran who since the shooting has worked intermittently in construction, killed 16-year-old Jose Antonio Elena Rodriguez in October 2012. His first trial ended this past April with an acquittal on a second-degree murder charge, but the jury deadlocked on manslaughter and involuntary manslaughter charges. The retrial this week is on those lesser charges.

Swartz responded to a radio call that smugglers had dropped loads of marijuana in Nogales, Arizona, and were climbing the urban border fence back into Nogales, Mexico, around 11:30 p.m.

When Swartz arrived, people were lobbing rocks from Mexico up and over a 20-foot fence in an attempt to distract agents on the U.S. side who were trying to catch the smugglers. Video of the shooting captured by two Border Patrol cameras shows Swartz slowly walk to the border fence, fire three shots, then slowly walk along the fence to another spot and fire again.

He hit Elena Rodriguez 13 times, 10 from behind, according to medical examiners’ testimony at the five-week first trial. Swartz testified he feared for his life and the lives of other agents and police on the scene. No one else drew or fired a weapon, and prosecution experts testified Swartz repeatedly shot the fallen boy after he fell but was still alive and moving.

Defense experts testified one of the first shots killed Elena Rodriguez, making all the other shots legally irrelevant to the murder charge.

In August, defense attorneys Jim Calle and Sean Chapman asked U.S. District Judge Rainer Collins to move the trial 100 miles north to Phoenix because extensive publicity would make finding an impartial jury in Tucson difficult. About half as many stories were published in Phoenix as in Tucson, the attorneys said.

The request cites a statement shortly after Swartz’s acquittal by Edward Weisenburger, bishop of the Catholic Diocese of Tucson, as evidence an untainted jury pool would be impossible in Tucson. In a guest opinion published on TucsonSentinel.com, Weisenburger called the acquittal “deeply troubling.”

“While we are privileged to live in a nation whose greatness is rooted in its democracy and fair treatment of all, such decisions reveal that our democratic institutions are not without flaws and occasionally grave injustices,” the bishop wrote.

Other media reports quoted numerous people with similar views – that Swartz’s first trial was a miscarriage of justice.  The motion includes numerous photos of protesters after the acquittal, one showing a large sign reading “10 Shots in the Back is Murder” taken on a busy downtown street near the courthouse.

“The clear sentiment in the picture is that, despite (Border Patrol agent) Swartz’s acquittal on murder charges, some people refuse to accept this jury determination and continue to believe that Swartz is guilty of murder,” the motion says.

Collins denied the request to change venue.

Elena Rodriguez’s mother, Araceli Rodriguez, sued the U.S. government over her son’s death. She claims her son wasn’t throwing rocks at all but was caught in the crossfire while walking down the street. That lawsuit is still pending at the Ninth Circuit.

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