Video Footage Could Be Key in Border Patrol Shooting Case

TUCSON, Ariz. (CN) –  On the night of October 10, 2012, a U.S. Border Patrol agent shot and killed a 16-year-old boy on the south side of the international boundary under the watchful eyes of surveillance cameras in Nogales, Arizona.

What those cameras captured when Jose Antonio Elena Rodriguez fell to his death after agent Lonnie Swartz emptied his .40-caliber pistol into Mexico through gaps in the metal border fence was the focus of a pretrial hearing in Tucson federal court on Monday.

The hearing largely centered on the technical aspects of gathering footage from the Border Patrol’s surveillance cameras.

The agent’s attorneys contend that the video of the shooting is unreliable and should be kept out of court. The original was not preserved, and they claim compression diminished the quality of copies.

But a Border Patrol field technician testified that compression, which is used to reduce the file size of media, didn’t degrade the video.

“The resolution was the highest quality,” said Gary Weaver, who produced the video for the subsequent investigation of the shooting.

After more than four years of waiting and several trial postponements, Elena’s mother Araceli Rodriguez said she’s thirsty for justice and hopes U.S. District Judge Raner Collins will allow the video into evidence.

“The video is key,” said Rodriguez, who filed a civil suit against Swartz.  “But I think they’re afraid to show it because many things will come to light.”

On Monday, portions of the video were shown publicly for the first time, along with a video reconstruction and photographs, ahead of Swartz’s October trial. In the video, Elena appeared to be lying face down on a sidewalk on the Mexican side of the border in Nogales, Sonora while shots were still being fired.

Swartz has pleaded not guilty to a second-degree murder charge for the teen’s death.

Graphic autopsy photos of Elena and 3D images of the crime scene flashed on large screens prompted family members, including Rodriguez, to intermittently leave the courtroom during the daylong hearing.

A video reconstruction of the shooting shows the agent firing 16 shots from three different points along the north side of the fence. He fired three shots, then 10, then reloaded and fired another three. At least 10 of the last 13 bullets hit the teen in the head, back and arms while he was already down, expert witness James Tavernetti said. Tavernetti had created the reconstruction for federal prosecutors.

Although the actual shooting was not shown in court, the grainy, dark video recorded by two Border Patrol cameras positioned east and west of the main port of entry shows two people clinging to the fence, descending into Mexico. It was unclear whether they were the same two people later seen raising their arms in an overhead throwing motion. Swartz claims he fired at rock-throwers, and the video reconstruction included several rocks found on the Arizona side.

In some video images from both the surveillance camera and the reconstruction, Elena appeared to walk toward the two people who stood a distance from him on Calle Internacional, the street that runs parallel to the high fence, but it’s unclear if he reached them or retreated before he was shot. Police who went to the scene in Arizona the night of the shooting reported that one of the fence climbers wore a white shirt, the other a blue shirt. In photos displayed in court, Elena was dressed in a gray T-shirt, jeans and sneakers that night.

Since her son was killed, Rodriguez and other family members have maintained that the teen was walking in the area to meet his older brother, who worked in a nearby convenience store, and that the only thing he was carrying was a cell phone.

Collins will make a decision about whether to show the video at trial after hearing arguments from Swartz’s defense attorneys and federal prosecutors through Thursday.

The judge and legal teams also will turn their attention to a reluctant witness that the defense wants to depose because he said he spotted Elena in Nogales, Arizona, on the night of the shooting.

Sean Chapman, one of Swartz’s attorneys, has stated in court documents that the witness can attest to the teen’s involvement in drug smuggling.

“Whether he personally transported drugs or acted as a scout is unclear,” he wrote. “What is clear is that he was involved in this operation.”

Prosecutors have countered in court filings that even if those allegations are true, they are irrelevant.

Even though the teen’s killing was highly publicized internationally, investigators didn’t release Swartz’s name for two years.

In September 2016, he became the first Border Patrol agent to be indicted by a grand jury in a deadly force case. He is on indefinite suspension without pay.

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