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BP agent's murder trial begins Wednesday

After more than five years and multiple delays, Border Patrol Agent Lonnie Swartz will go on trial for second-degree murder, after he was charged with unlawfully killing a Mexican teenager during a 2012 cross-border shooting in Nogales. 

A dozen jurors and four alternates —11 women and five men —were empaneled late Tuesday afternoon, and opening arguments are slated to begin at 9:30 a.m. Wednesday morning. 

Swartz pleaded not guilty in 2015, following his indictment by a federal grand jury for second-degree murder. The indictment charged that Swartz with "malice aforethought, and while armed with a P2000 semiautomatic pistol" killed Rodriguez in the October 10, 2012 incident. The 16-year-old was shot at least 10 times, with most of the rounds hitting him in the back, and he died on a street running along the border, just blocks from his home. 

Following the shooting, Border Patrol representatives said that Swartz had fired his weapon in response to a hail of rocks from across the border, including one that reportedly hit a Nogales Police Department dog. 

However, complicating the story is the scene of the incident, where an 18-foot high border fence sits atop a cliff that rises another 20 feet above Calle Internacional, a street that runs parallel to the U.S.-Mexico border in Nogales, Sonora. 

Prosecutors have stipulated that Rodriguez may have thrown rocks, and the defense has put forward evidence that Rodriguez may have climbed the rusting metal fence, and pushed to have a witness testify that Rodriguez may have been in the United States just hours before the shooting. 

The prosecution has argued that these claims are irrelevant, but that what matters instead is whether Swartz believed that the teen posed an "an imminent threat of serious bodily injury" to him when he shot through the fence at the boy on the street below. Prosecutors will argue that after Swartz shot at the teen, he collapsed to the ground, and though he was no longer a threat, Swartz "continued to fire at him."

However, one of Swartz's lawyers, Sean 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."

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

During voir dire — the questioning of potential jurors — the court removed eight people from the pool, and following a break — during which the prosecution and defense had the opportunity to suggest striking specific jurors, the judge winnowed down the remaining potential jurors from 42 to the final 16.

Jurors were asked if they knew the people involved in the case, if they were experts in firearms, if they had gone to Mexico, if they had been put into secondary inspection at a Border Patrol checkpoint, if they spoke Spanish, and if they knew someone in the military.

They were also asked what bumper stickers they had on their car.

The trial represents a rare prosecution by the Justice Department of a Border Patrol agent for a use of force.

The death of Rodriguez was one of a rash of shootings by Border Patrol agents, who shot and killed five teenaged boys from June 2010 to October 2012, two of them in Nogales, Arizona. 

This includes 17-year-old Ramses Barron Torres, who was shot once through the chest by a Border Patrol agent in January 2011 while he was on the fence separating Nogales, Ariz., from Nogales, Sonora. That same year, in March, 19-year-old Carlos LaMadrid, was shot in the back several times as he climbed a ladder propped up against the border fence in Douglas, Ariz.

Another teenaged boy, 15-year-old Sergio Adrian Hernandez-Guereca, was killed by an agent in El Paso in June 2010, and 18-year-old Juan Mendez was killed by an agent in October 2012 near Eagle Pass, Texas. 

The trial is expected to take at least three weeks, said U.S. District Judge Raner C. Collins, who has presided over the case. 

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.