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Posted Mar 18, 2017, 4:02 pm
A lawyer representing Lonnie Swartz, the Border Patrol agent charged with second-degree murder for shooting and killing a Mexican teenager across the border in Nogales, said that the agency has "lost or destroyed" the original video recordings of the incident.
Nearly three years after the shooting, Border Patrol Agent Lonnie Ray Swartz was indicted by a grand jury for firing through the border fence and killing 16-year-old Jose Antonio Elena Rodriguez. The boy was walking along the sidewalk on Calle International near the international boundary when he was hit by nearly a dozen rounds, with most of the bullets striking him in the back.
The indictment alleges Swartz acted "with malice aforethought" when he unholstered his weapon and fired through the fence, killing the teen.
Swartz's lawyer, Sean Chapman, said in a court filing this week that copies of the border surveillance video should be precluded as evidence because during the transfer of the original digital video, the government compressed the images, violating its own guidelines.
The incident had been recorded by "several Border Patrol pole cameras operating in the area" and that on the night of the shooting, the FBI responded and obtained a copy of the videos, but "made no effort to preserve the original."
"Several years later, in October, 2015, efforts were made by law enforcement to obtain the original video captures of the incident that night. By this time, however, the original video (contained on a hard drive) had been lost or destroyed," Chapman wrote.
This compression has resulted in "deeply flawed images," Chapman argued.
Federal prosecutors retained a video expert, James Tavernetti, to recreate video of the incident, said Chapman.
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Tavernetti made several video recreations of the incident, including one which shows Swartz firing at Rodriguez from three different positions.
Another video Tavernetti made shows Rodriguez still moving after he collapsed, "a critical fact in this case," Chapman said.
Chapman said that his own video expert concluded that the video recreations created by Tavernetti are "completely unreliable given that they are based on a flawed copy of the original video, which was not preserved or made available."
This is the third such challenge that Chapman has launched against the case.
Last October, Chapman argued that Swartz could not be prosecuted by federal officials because "there is no indication that the alleged crime was committed on federal land."
Based on a unique reading of federal jurisdiction and the acquisition of land along the U.S.-Mexico border Chapman argued that his client was standing in the state of Arizona and Santa Cruz County when Swartz fired and killed Rodriguez.
Collins has not ruled on the challenge.
Chapman has also sought to preclude statements made by Swartz after the shooting when he said "I shot and there's someone dead in Mexico." Chapman argued that Swartz made these statements under pressure from a BP supervisor and should not be heard at trial.
Originally slated to start in November 2015, just a few months after Swartz was indicted, the trial has been delayed five times and may begin June 19.
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.