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Swartz trial: Evidence shows boy still moving when shot in back, expert testifies

Jose Antonio Elena Rodriguez, the 16-year-old Mexican teenager shot and killed more than five years ago, was on the ground and still moving when he was hit by a volley of .40-caliber rounds from a Border Patrol agent's pistol, an expert witness testified on Wednesday. 

The expert was one of eight witnesses asked to testify by prosecutors as they continued to construct their case against Lonnie Ray Swartz, the Border Patrol agent on trial for second-degree murder for killing Rodriguez during a cross-border shooting in October 10, 2012. 

Swartz fired 16 rounds in 34 seconds, hitting the boy in the head and back. Rodriguez died on a sidewalk on the Mexican side of the border, down an embankment from where Swartz stood on the U.S. side of the border fence. The trial began last week in a federal courtroom in Tucson.

On Wednesday, Tom Bevel, a former Oklahoma City police officer and expert in blood spatter evidence, testified that Rodriguez was likely prone on the ground, or nearly prone, when he was hit by several rounds. 

"Is there any other explanation?" asked Wallace Kleindienst, assistant U.S. Attorney. 

"That's a viable explanation? No," Bevel said. 

Bevel's testimony presented jurors with the most graphic evidence in this case so far, when prosecutors showed the jury photographs of the bloody crime scene while questioning the forensic analyst.

Relying on photographs taken by Mexican officials, Bevel said that a "ribbon of blood" on the boy's arm, along with blood on his thumb and fingers, likely showed that he was still moving while he was on the ground and hit by several bullets, including one that hit him just above the collar of his gray t-shirt and punched through his left cheek. 

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During his testimony, Bevel raised his left arm upright to show how Rodriguez's arm was outstretched when some of the bullets tore into his body. In one photograph, Rodriguez's left arm is back so that his fingers were curled in front of his face. 

Bevel said that the trajectory of the bullets meant that either Rodriguez moved, or that the bullets had to have changed direction. "We cannot get straight lines out of the back wounds to where the bullets are found," Bevel said. 

"Do bullets U-turn?" asked Kleindienst. 

"Typically no," Bevel said. 

Bevel said that Rodriguez's body showed signs that his face hit the cement when he fell, but that it was clear he had moved before he died. 

As Bevel's testimony began, prosecutors showed an image of Rodriguez body covered by a blue sheet, and began discussing how a constellation of spots on the cracked stucco wall were likely blood stains caused by the bullets that hit the boy. 

During this part of the trial, the boy's mother and grandmother left the courtroom and did not return while Bevel spoke. 

Bevel said that he thought that was spot was actually some of the boy's tissue, while other spots were from blood spatter. 

The spots were "consistent with exit wounds" on the boy's left side where multiple exit wounds were clearly visible, Bevel said. Bevel also noted three bullets that remained visible in the boy's skin after they failed to punch all the way through after hitting the back of the boy's arm. 

Sean Chapman, one of the lawyers defending Swartz, asked if a Mexican official had "kicked the body," would that alter the evidence, returning to an argument made earlier that Mexican authorities had disrupted the crime scene. 

Bevel said that it was possible that one blood stain had changed when Mexican officials removed the blue sheet covering Rodriguez's body when they went to take pictures, but that he didn't see signs that an official had kicked the body with sufficient force to alter the evidence. 

Chapman also asked if Rodriguez's body showed motion because of "agonal or involuntary movement," but Bevel said that he was "comfortable with movement." 

Jurors were also presented with multiple images of the scene, reviewing a graphic created by an expert who used a laser-scanner to create a "point cloud" of the fence and both sides of the border, including the street and surrounding buildings, as well as a "flyover" created by combing the data with computer generated objects to create a realistic image of the scene. 

These images also showed the sidewalk were Rodriguez died, as well as the 14-foot cliff that was topped by the 22-foot bollard border fence that Swartz stood behind when he fired his gun.  

During his own testimony, Lucien Haag, a expert in firearms, showed the jury the weapon used to kill Rodriguez, bringing out the H&K P2000 pistol and after ensuring that the weapon was unloaded, pulled the trigger so that jurors could hear the gun's hammer snap into place. Haag illustrated how to eject and load a magazine, and later showed jurors not only the expended shell casings, but also hollow-point bullets recovered by Mexican officials at the scene. 

"If you know how to handle this firearm, and how to use it, it will put bullets when you want a distance of 25 yards," said Haag. 

"So it's a conscious decision to aim and fire each time?" asked Kleindienst. 

"Yes," Haag said. 

Haag said that in 2014, he went to the scene and was able to find traces where lead bullets from Swartz's gun had penetrated the wall of a building near a memorial set up where Rodriguez died. There 13 spots on the stucco and concrete wall, and four of those tested positive for lead, Haag said, signs of either bullet strikes or "spall" from bullet fragments slamming into the wall.

During Haag's testimony, Chapman brought up an embarrassing moment, in which Mexican officials and U.S. attache, brought the wrong clothes to his lab for testing. Chapman asked who was at the meeting that day, and who discovered the clothes were incorrect, and Haag called the mistake "pretty apparent and pretty embarrassing," but said that once he discovered the clothes were wrong, he "lost interest in it." 

Mexican officials later brought the right clothes for testing. 

Chapman also asked Haag about the use of plastic v-shaped tents used to mark shell casings and other evidence in a crime scene. Chapman noted that while officials in the U.S., including an FBI agent and a member of the Border Patrol's Critical Incident Team marked the scene this way, Mexican officials did not. 

Haag later said that no scene is "perfect" and that "on Monday morning, it's often when we think of mistakes or oversights." 

On Tuesday afternoon, jurors heard testimony from Gerardo Carranza, a Border Patrol agent assigned to the Tucson Sector's Critical Incident Team, who responded to the shooting and used a device known as "Total Station" to begin tracking where expended shell casings, rocks and vehicles were in the scene. Carranza, along with FBI agent Michelle Terwilliger, were responsible for collecting shell casings, the weapon used by Swartz and rocks found at the scene. 

Terwilliger ultimately collected seven rocks, actually hunks of concrete, found at the scene and believed to have been hurled from Nogales, Sonora. The largest was nearly six inches wide, and weighed nearly three pounds, while the smallest was just over an inch and weighed .076 pounds, or about one-quarter the weight of a baseball. 

During the hearing on Thursday, juror number 16 was dismissed due to a personal matter, said U.S. District Court Judge Raner C. Collins. This leaves 12 jurors and three alternates to continue hearing the case. 

The trial will continue on Thursday at 10:30 a.m.

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Paul Ingram/TucsonSentinel.com

An altar at the spot where Jose Antonio Elena Rodriguez died in October 2012.