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Judge refuses to remove prosecutors from BP agent's murder trial

The U.S. Attorney's Office for Arizona will continue prosecuting the case against Lonnie Swartz, the Border Patrol agent accused of unlawfully killing a Mexican teenager during a 2012 cross-border shooting, after a federal judge rejected a motion from Swartz's defense team that argued federal officials withheld evidence.

In a one-page ruling, U.S. District Judge Raner C. Collins rejected the motion from Sean Chapman, one of Swartz's lawyers, who asked that the court recuse the entire Arizona office of the U.S. Attorney because the government withheld or manipulated "critical, exculpatory" evidence, including autopsy reports from two Mexican officials.

Collins wrote that he took the matter under advisement, and while he was "troubled by the delay" by the disclosure of the pathologists' opinion, it" does not amount to a violation that requires the recusal of the United States Attorney's Office."

Swartz was indicted by a U.S. grand jury on a second-degree murder charge in September 2015, but while Swartz's trial was originally slated to begin in November that year, a series of delays, motions and hearing have dragged the process out to March 20, 2018.

In his filing, Chapman argued that entire office should be recused from the case because the "issues were of the government’s own making, in conscious disregard of constitutional and internal rules counseling against these types of actions," he wrote. "Moreover, the government has demonstrated a pattern of late disclosure in order to gain a strategic advantage at trial. This is wholly improper," Chapman said.

Chapman wrote that it wasn't enough to dismiss the prosecutors directly assigned to the case, but that the entire office should not prosecute the case because one of the prosecutors had become a material witness.

The central issue, Chapman said is whether Swartz killed 16-year-old Jose Antonio Elena Rodriguez out of self-defense, and whether Rodriguez was fatally shot in the head while he was standing or after he collapsed to the ground on a street in Nogales, Sonora.

Chapman wrote that the government will present its case that Swartz fired on the boy, and Rodriguez collapsed to the ground, but was still alive and no longer a threat to Agent Swartz, and yet Swartz "continued to fire at him."

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"Under this theory, Agent Swartz acted without legal justification and with malice aforethought by continuing to shoot at Elena-Rodriguez after he was incapacitated by the first set of shots and went to the ground," Chapman wrote.

However, Chapman said that he would argue in court that one of Swartz's first shots instantly killed Rodriguez and that because Rodriguez was "an active threat" when Swartz fired his volley —emptying one magazine and then reloading and firing again — the agent is "not criminally liable for Elena-Rodriguez’s death, even if he continued to fire at him after he was killed, and collapsed to the ground."

"Thus, unquestionably, evidence bearing on exactly when Elena-Rodriguez suffered the fatal head wound is key, material evidence in this case," Chapman wrote.

Chapman said that federal prosecutors had withheld the findings and opinions of two Mexican pathologists who conducted an autopsy on the boy's body after the shooting, saying that "the government has known, since at least August 2014, that the Mexican pathologists agreed with the defense's theory, but did not disclose this fact to the defense" until 2016.

Chapman complained that prosecutors had withheld personal notes written by one of the pathologists until just 60 days before trial, and that notes from one of the government's attorneys showed that Dr. Javier Diaz Trejo believed "unequivocally" that Rodriguez was standing "when he suffered an initial shot to his head that instantly killed him and resulted in his fall to the ground."

This conflicts with a report disclosed to the defense that in Diaz's opinion Rodriguez "could have been knocked to the ground from other wounds where he then could have suffered the fatal head shot while still alive."

Chapman also argued that the notes conflict a latter statement by Diaz that the boy had suffered a spinal injury when he was shot. "There is no question that the government knew the information provided by Dr. Diaz in 2014 was crucial exculpatory evidence for the defense. It appears that the contents of this interview were withheld for three years and only released two months before trial so that the government would have a strategic advantage at trial," Chapman wrote. He also said that, "without explanation, the government purposefully chose to interview a key witness with neither the case agent nor a recording device to memorialize the substance of the interview—something seasoned prosecutors would only do if they were trying to prevent the development of evidence harmful to the government’s case."

The same attorney also took notes during interviews with two eyewitnesses, and that a diagram of the area that was used to interview one of the witnesses, has also been withheld, Chapman said.

The U.S. attorney who took notes has agreed to accept a summons from the court, Chapman said.

In another motion, Chapman also asked to keep the government from introducing Swartz's discharge from the U.S. military, and performance records from the Border Patrol academy.

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Swartz joined the U.S. Army in 1995, when he was 19 and was discharged nearly three years later "under other than honorable conditions" and "in lieu of trial by court-martial."

"The reason for this disposition was Swartz absenting himself from his military service for a lengthy period of time," Chapman wrote.

Chapman argued that neither Swartz's records from Border Patrol nor his military history are relevant to "the issue that the jury must decide in this case."

"The reason for and characterization of Swartz’s discharge from the army has no bearing on whether, on October 10, 2012, he acted with criminal intent to commit second degree murder. Similarly, none of the documents in Swartz’s personnel file make it any more or less likely that he acted with criminal intent when he discharged his firearm in this case," Chapman argued.

A hearing for the outstanding motions is scheduled for February 1.

TucsonSentinel.com's original reporting and curation of border and immigration news is generously supported in part by a grant from the Ethics and Excellence in Journalism Foundation.

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Paul Ingram/TucsonSentinel.com

An altar for 16-year-old Jose Antonio Elena Rodriguez, a Nogales-area teen who was shot and killed by a Border Patrol agent in a cross-border incident in 2012.