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Jury will hear evidence that Mexican teen may have climbed fence before being killed by BP agent

A federal judge will allow defense lawyers to present evidence that a Mexican teenager, shot and killed by a Border Patrol agent in 2012, may have climbed the bollard fence that separates the U.S. and Mexico, leaving rust stains on his shoes. 

The decision, issued by U.S. District Judge Raner C. Collins this week, was one of four on outstanding issues in the murder case against Border Patrol Agent Lonnie Swartz, who stands accused of unlawfully killing 16-year-old Jose Antonio Elena Rodriguez on October 10, 2012. 

Swartz's defense lawyer, Sean Chapman, told federal prosecutors that he intended to call two Border Patrol agents to testify about general smuggling tactics, including testimony that they look for rust marks on suspect's clothing left from the unpainted steel bollard fencing that separates Nogales, Arizona, from Nogales, Sonora. 

Chapman said he intends to call Agents Justin Sanders and Travis Bradshaw, both members of the Nogales station. 

However, federal prosecutors objected and said that the rust evidence is "simply offered to disparage the victim" and "merely an attempt to demonstrate that the victim was a drug smuggler and that he had illegally entered the United States." 

"This is a murder case; not a drug smuggling case," wrote Elizabeth Sue Feldmeier, assistant U.S. attorney for Arizona. "Whether or not J.A.E.R. is a drug smuggler or whether he illegally entered the United States is not relevant to the charges. There is no claim that the defendant knew of any past activities of the victim." 

Swartz, she wrote, did not know these facts about Rodriguez and "in fact claims he fired his pistol because of rocks." 

Swartz fired 16 rounds at the boy that night, emptying one entire magazine from his P2000 pistol, pausing to reload, and then fired three more rounds into Mexico. 

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Rodriguez was hit nearly a dozen times, with most of the bullets striking the teen in the back. 

However, Collins disagreed and denied the prosecution's motion.

"You cannot try the case in a vacuum," said Collins in his decision Wednesday. "Limiting the case to only the moment of the shooting, in this Court’s view, is unfair to both sides. The jury needs context and the Court can make sure that irrelevant arguments can be precluded if need be." 

Collins also denied a motion to preclude the testimony of Gary Rini, presented by the defense as an expert "regarding the competency/accuracy of the investigation conducted by both the Department of Justice and the Mexican government in this matter." 

Rini is a former police officer and a consultant, but prosecutors complained that Rini "never worked for a federal law enforcement agency nor does he have any experience in Mexican law enforcement techniques." 

"He is essentially a crime scene reconstructionist and forensic consultant," they wrote. 

Rini's testimony is connected to an argument, issued earlier by the defense team, that federal officials withheld or manipulated "critical, exculpatory" evidence, including autopsy reports from two Mexican officials.

In a filing last year, Chapman argued that the central issue is whether Swartz killed the 16-year-old out of self-defense, and whether Rodriguez was fatally shot in the head while he was standing, and still supposedly a threat to the agent, or after he collapsed to the ground, and had stopped being a threat to the agent when he emptied his magazine and fired three more shots. 

Chapman had moved to have the entire office precluded from prosecuting the case because of the failure to produce evidence, but in January, Collins disagreed writing that while he was "troubled by the delay" by the disclosure of the pathologists' opinion, it did not "amount to a violation that requires the recusal of the United States Attorney's Office."

Federal prosecutors called Rini's testimony "irrelevant" and that "his purpose is to merely critique the manner in which the Mexican and United States governments investigated the murder." 

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"Such a critique is not a proper basis for expert testimony. His opinions are irrelevant to the issues in this case," wrote Feldmeier. 

However, Collins disagreed, writing that Rini should testify. 

"While the Government is correct that the defense can use cross examination to explore the area Mr. Rini will talk about, the cross examination by itself will not give the jury the substance Mr. Rini’s testimony will," Collins wrote. 

Federal prosecutors won on three motions heard by Collins. 

In the first, Collins agreed that at retired FBI agent should not have to testify at trial. 

The defense team had moved to require retired FBI Agent Allen Fuller to testify because Fuller, an audio video and image examiner, synchronized the video from two Border Patrol cameras that captured the shooting, along with audio from Nogales Police radios. During his work, he reportedly wrote in a memo to FBI Special Agent Christopher McKinney that the video captured three people approach Rodriguez's body and "retrieve items from or around the body." 

However, federal prosecutors argued that because the former FBI agent did not want to testify, and because prosecutors were not calling him as a witness, he was barred from testifying as an expert witness under federal law. 

No one, including Fuller, they wrote has "special visual acuity that should give their opinion on what a video shows greater weight than that of the fact finder."

"Concluding what the videos shows is a question of fact that the jury is going to have to decide. It is not something that an expert should be able to give an opinion about." Fuller was not a witness to the incident, and should be "precluded from offering his opinion about things he believes he observed when watching the videos," wrote Feldmeier.

Collins agreed, writing "The jurors can watch the video, which the Government has agreed to admit, and draw their own conclusions." 

Collins also agreed to limit the scope of testimony that will be required from two Justice Department attorneys. Swartz's lawyers served trial subpoenas for Karen Rolley and Henry Leventis because in August 2014, the two attorneys took notes of a conversation with Mexican pathologists Dr. Javier Diaz Trejo and Dr. Absalon Madrigal Godinez, who performed the autopsy of Rodriguez. 

Federal prosecutors argued that the defense was trying to get the attorneys to testify over the "failure of the DOJ to preserve critical testimony" from the two pathologists. 

"The government is concerned that the defendant may attempt to exceed the limited scope of the DOJ attorneys’ relevant testimony, and delve into the DOJ attorneys’ recollections and opinions related to the investigative team’s privileged deliberative and decision-making process," wrote Feldmeier. 

And, Collins granted a motion from the prosecution to preclude the opinion of a witness, known only as Agent Evenson in sealed court documents. 

A status conference will close the remaining open issues on March 19, the day before the jury trial is slated to begin, on March 20. 

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

A photograph of 16-year-old Jose Antonio Elena Rodriguez, killed by Border Patrol agent Lonnie Swartz, during a cross-border shooting in October 2012.