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Swartz trial: Expert says first shot hit boy in back, fatal final shot in head

An expert in forensic pathology testified that 16-year-old Jose Antonio Elena Rodriguez was on the ground and severely wounded when Border Patrol Agent Lonnie Swartz — on trial for murder — fired a .40-caliber bullet into the right side of his head through the border fence in Nogales in 2012. The bullet sliced through the helix of the boy's ear and penetrated his skull, killing him. 

Emma Lew, the director of the medical examiner in Miami-Dade County, Fla., testified for the prosecution that Swartz's first shot likely hit Rodriguez in the back, shattering four of his vertebrae and creating shrapnel that sliced into his lungs and aorta, the large artery that connects to the heart. The shot likely paralyzed the boy's legs and he collapsed to the ground, smashing his hands and face into the concrete and damaging his front teeth, Lew said in court.

With a cloth mannequin as a model for Rodriguez, Lew stood in front of the jury box and used metal knitting needles to show the trajectory of 10 bullets as they punched into his body. Lew traced the entrance and exit wounds to create a unified model of the shooting, illustrating how bullets hit the boy in the back and head, almost all moving upward, and how bullets that struck his back cut through and ended up embedded in his left arm. 

Swartz fired 16 rounds in 34 seconds in three salvos the night of Oct. 10, 2012, and according to Lew, the most grievous injury came near the end, when a bullet sliced through the teen's left ear, punched into the bottom of his skull and carved through his brain. The bullet broke through his skull again and came to rest just beneath his scalp, Lew said. 

Lew's testimony, following the statements of the two Mexican pathologists who worked on the boy's body after the shooting, offer some of the strongest evidence from the prosecution that Rodriguez was killed unlawfully. 

 The defense and prosecution are offering two competing theories on how the boy died that night.

Swartz is on trial for second-degree murder for killing Rodriguez during the cross-border shooting in Nogales more than five years ago. 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 March 20 in a federal courtroom in Tucson.

Prosecutors have stipulated that Rodriguez was throwing rocks over the fence during an incident when two Mexican men, alleged drug mules, were attempting to climb back over the border barrier while fleeing from U.S. law enforcement, but have argued that the final shots that killed the boy came well after he ceased to be a threat. That has led to questions about whether the shooting was "reasonable or necessary" — the legal standard for using deadly force, as an expert pointed out on Monday. 

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Defense attorneys have argued that one of Swartz's first shots instantly killed the boy, and that the remaining shots were from a scared agent, who believed he was engaging multiple threats when he emptied one magazine, reloaded his handgun, and fired another three rounds.

The shot to his head would have "immediately incapacitated" Rodriguez, and death happened in "seconds to minutes," Lew said. 

Lew continued, illustrating each wound from the top of the mannequin's head to the waist by driving a knitting needle in. Then, with the help of Assistant U.S. Attorney Mary Sue Feldmeier, she lowered the mannequin toward the floor, illustrating how Rodriguez was likely hit by the first round, in the thoracic vertebrae, or just to the right of the spine in the middle of his back, as he was ducking, she said. 

This wound likely would have been fatal, as the aorta was damaged, she said. However, the volume of blood found in the boy's chest confirms that he was alive when it hit, Lew said.  This counters the defense's theory that this shot came after he had already been hit in the head. 

"You need a time to bleed, it's not an instant death," said Lew. 

Lew said she reviewed more than two dozen documents, including video from two Border Patrol cameras, as well as the autopsy from Mexican officials, and data from the Border Patrol's own Critical Incident Team to come to her decision. 

Lew said that another bullet wound shows that the boy reached his left arm up, and tried to raise himself before he was hit again. At some point, Rodriguez pulled his arm back, allowing another round to puncture his back, come through and wind up lodged in his arm. 

Then he turned his head, and then the final shot came and killed him. "So at some point, while he was on the ground, his head shifted to face the gun." After that shot, he collapsed, and his head dropped "according to gravity." 

The last shot was likely one that hit him in the neck and traveled around his skull before exiting through his cheek. 

Lew said she didn't know the sequence of each shot, but that "certain shots had to come first."

Over the last two days of trial, jurors have faced the catastrophic damage done to Rodriguez's body after Swartz shot him, including testimony from criminal investigators and pathologists, and dozens of photographs of the boy's body in the street, and from his autopsy at a Nogales-area funeral home. 

Drs. Absalón Madrigal Godinez and Javier Diaz Trejo both testified on Wednesday, giving their own accounts of how they examined the body, and began to understand how the boy had been killed. 

As part of Madrigal's testimony, prosecutors showed most of the photos taken that day, which show the wounds Rodriguez sustained, as well as some of the procedures the two doctors conducted in order to retrieve nine bullets and fragments of a tenth from the boy's body. 

In Spanish and through a court interpreter, Madrigal described the destruction caused by the head wound as a "laceration" of the brain tissue as the bullet entered the "vault" of the skull, which he likened to an egg. The pressure from the gunshot "caused some pressure" which exploded blood vessels, and caused the egg to break, he said. 

"Would that cause death?" asked Feldmeier. 

"Yes, that would be that injury that causes death," he said. 

Madrigal said that the wound to Rodriguez's thoracic vertebrae, or his back and spine, probably put pressure on the spinal cord, but that he did not have the tools to remove and inspect the cord, however, he said that he could feel that the bones were broken, causing Rodriguez to lose control of his legs and pelvis. He would have been able to raise himself, move his arms and twist, Madrigal told Feldmeier. 

Madrigal argued that his opinion changed as new evidence came to his attention, including Border Patrol video which showed that no one had touched the body.

Along with evidence that Swartz had fired his weapon in three salvos, Madrigal said it was more likely that the last shots hit Rodriguez in the head. 

During cross-examination, one of Swartz's defense lawyers argued that Madrigal had changed his story three times from his original report in 2012 to an interview in 2014 and then again in January 2018. 

Sean Chapman, Swartz's defense attorney, argued that Madrigal had said he was in a meeting with Mexican and U.S. officials, but later changed his story and was outside when Diaz told prosecutors that the shot to Rodriguez's head came first. 

But, while waiting for translation back and forth, Madrigal said that he was outside the meeting because it was filled by the most important people first, and he stood outside the office and listened in through an open door. 

"Why weren't you in the room?" Chapman asked. 

"It was not practical," said Madrigal. "It was prioritized by rank." 

"It was a high-level international meeting?," Chapman asked. 

"I wouldn't know what it means to you to be high-level or what that means," replied Madrigal. This led to several minutes of back and forth as Chapman angled to get Madrigal admit that he'd misstated his presence at the meeting.

Chapman also asked if Madrigal heard Dr. Diaz tell a U.S. official that the shot to the head caused Rodriguez to lose balance and fall, causing the injuries to his hands and face. 

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"The government today has posited that the shot to the thoracic vertebrae, mid-spine put him down to the ground, and that later he received a gunshot wound to the head," Chapman said. "Didn't you specifically reject that," said Chapman.

"Several theories weren't handled as possible or impossible theories, but probable," said Madrigal. 

Chapman argued in notes taken by a U.S. official in August 2014, Diaz had refused the possibility of another scenario. 

"That's not true. We never rejected another possibility," said Madrigal. 

Chapman asked if it was possible that Rodriguez was hit just after he was throwing a rock, and that the shot to his head caused him to instantly fall hitting the wall, and dropping down and that all the other injuries followed. 

"It's possible," Madrigal said. 

"It's not a change of opinion, my opinion is based on the information presented to me," he said. 

Dr. Diaz gave a similar testimony, arguing that Rodriguez may have been alive for a time after being shot, before another volley of bullets hit him. 

Feldmeier asked if Diaz came up with another opinion after considering that up to eight seconds passed after Swartz fired his first shots.  

"That the person was wounded, hit in posterior trunk with an impact on right side slightly to the right, back at the height of thorax," said Diaz through a court interpreter. Diaz said that the shot damaged the spine, and "the person becomes paraplegic, from wound down, and logically from there on up, he would continue to have movement, he would be alive." 

"Afterwards, other bullets arrived at his body. That is, his head," said Diaz. 

During the hearing on Tuesday, juror number 3 was dismissed due to a personal reasons, said U.S. District Court Judge Raner C. Collins. Last week, juror number 16 was dismissed due to a personal matter. This leaves 12 jurors and two alternates to continue hearing the case. 

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The trial will continue on Thursday at 9:30 a.m.

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

The site where Jose Antonio Elena Rodriguez was shot, viewed from the United States.