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Swartz trial: Cross-border shooting case sent to jury

Federal prosecutors argued that Lonnie Ray Swartz was "fed up" with people throwing rocks at him and "intentionally and without justification" ended the life of 16-year-old Jose Antonio Elena Rodriguez when he fired 16 rounds into Mexico, hitting the boy 10 times in the back on an October night in 2012. 

The closing arguments bring to a close 16 days of trial spanning four weeks, in which federal prosecutors and defense attorneys battled over whether Swartz, a Border Patrol agent, acted out of frustration and anger when he fired his weapon, or rather, as defense lawyers argued, the agent made a "split-second decision in a dynamic, high-pressure situation." 

During his closing statements, assistant U.S. Attorney Wallace Kleindienst argued that Swartz was "fed up with rockers" and that the agent fired his weapon and continued firing, emptying one magazine and firing three more .40-caliber rounds from a second, not because he was trying to "eliminate a threat," but instead because Swartz was "trying to eliminate a human being." 

Swartz fired 16 rounds in 34 seconds, hitting Elena Rodriguez 10 times, including one shot that sliced through the helix of the boy's right ear, and punched through both lobes of his brain before coming to rest just beneath his scalp. 

The agent, who remains on unpaid leave since he was indicted in 2015, faces up 20 years to life in prison if he is convicted of second-degree murder. However, jurors have been instructed that if they cannot reach a unanimous agreement, they may consider convicting Swartz of voluntary manslaughter, which carries a maximum of 20 years in prison, or involuntary manslaughter, which carries a maximum sentence of 6 years.

Prosecutors argued that Swartz's first shot hit the teen in the back, shattering four of his vertebrae and creating shrapnel that sliced into his lungs and his aorta, the major artery from the heart. Elena Rodriguez tumbled forward, smashing his face and the backs of his hands on the concrete, but that he was still alive and "struggling" when Swartz fired 10 more rounds, killing him. 

Defense lawyers had said that Swartz's first shot hit the boy in the head, and killed him, and that he continued to fire on Elena Rodriguez because he confused the boy with a second person throwing rocks. This was not murder, they argued but a legal shooting complicated by "bad perceptions." 

Rodriguez died on the sidewalk on Calle Internacional on Oct. 10, 2012, just four blocks from his home, and at the bottom of an 14-foot embankment, atop which Swartz stood in the U.S. behind the 22-foot-high border fence. The trial began March 20 in a federal courtroom in Tucson. 

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In this and other incidents, Swartz never took cover when faced with people throwing rocks over the border, rather "he used force, every time. That was his modus operandi," Kleindienst said. 

Swartz was "fed up with people throwing rocks at the fence," Kleindienst said. "He was fed up and he was going to use force, no matter what happened. He was going to stop the threat, no matter what." 

But agents who are rocked "cannot shoot to kill," and must consider the circumstances before they fire their weapon, Kleindienst argued. 

Sean Chapman, one of Swartz's defense attorneys, told jurors to consider the facts of the case, and use their common sense to find the agent not guilty. 

Prosecutors had stitched together their case from the facts, but their evidence was "speculation" and didn't describe the "dynamic, fast, unpredictable" situation that was "recorded by unreliable evidence, including grainy video," he said. 

While the death of Elena Rodriguez was "sad," the shooting was justified, said Chapman. 

Swartz, he said was operating in a "dangerous, scary area" and that agents regularly faced rocks thrown over the fence large enough to severely injure or even kill an agent. 

Agents he said, "don't have to accept that risk" and do not have to wait until a "fist-sized" rock drops into their eye, or a baseball-sized rock falls and fractures their skull. 

Last week, Swartz testified that he fired his weapon and killed Elena Rodriguez because heard a rock strike the steel metal plate that caps the fence, and then fellow agent Shandon Wynecoop said that he'd been hit by a rock. This was followed by what Swartz called a "thud" and someone yelled that a Nogales, Ariz., police dog had been hit with a rock. 

Swartz said he "elected to defend myself, my partner, and those officers." 

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The incident began around 11 p.m. on Oct. 10, 2012, when two men climbed the fence separating the U.S. and Mexico, and later two other men climbed over carrying bundles of marijuana. Two Nogales police officers, including one officer with a canine named Tesko, arrived along with a half-dozen U.S. Border Patrol agents, including Swartz. 

Swartz, along with Wynecoop and Agent Stephen Porter, had been assigned to the outgoing traffic lanes at the nearby Dennis DeConcini Port of Entry, one of two border crossings in Nogales. The three agents decided to leave their duty station, and run toward the fence, where two men were straddling the fence. As agents surrounded the men, three people in Mexico began to throw rocks into the United States, and within seconds Swartz walked up to the fence with his gun drawn, and fired into Mexico. 

For an hour, Kleindienst reminded the jury that in seven other instances, Swartz had been responded to rockings by using "less-lethal" weapons, including a pepperball launcher and "stingball" grenades, that when thrown exploded and hurl .32-caliber rubber pellets in all directions. 

Swartz testified last week that he was discouraged from carrying some "less-lethal" weapons at the port because they could be intimidating, and the weapons tended to get in the way. 

Swartz's first salvo of three rounds, was "not necessary and not a last resort," Kleindienst said, adding that Swartz had other options available to him, and could have taken cover. "Taking cover is not retreating, it's just safe tactics," the prosecutor said. 

Swartz, he argued moved from one position to another to get a better vantage and that Swartz fired his weapon because he saw movement. Swartz continued firing, emptying one magazine before grabbing another, and fired three more shots. 

Swartz's training and obligations were "thrown out the window," when the agent fired on Elena Rodriguez. And, Swartz fired 10 rounds at "at a person struggling to get up." 

And, he stopped because he saw no movement, Kleindienst said, adding that after the shooting he did not call for emergency medical response, but rather said only that someone was dead in Mexico, evidence of his "darkened heart." 

Kleindienst also argued that the three rockers likely couldn't see their targets when they hurled pieces of concrete rubble that "barely got over the fence." 

While thrown rocks can be dangerous, "they don't justify" murder, he said. 

"Jose did not deserve to be executed," Kleindienst said. 

Family members, including the boy's grandmother Taide Elena, and his mother Araceli, were in the courtroom, but ducked their heads when prosecutors showed photos from the boy's autopsy. 

During Chapman's closing arguments the family left the courtroom, returning later during Kleindienst's follow-up presentation. 

During his closing arguments, Chapman asked, "How fast does a baseball-sized rock need to go to injure you?" Chapman noted that other agents were within the range of thrown rocks and showed the jury a diagram of where rocks fell that night, using information created after the incident by Border Patrol's investigations team. 

Chapman also referred back to A.O., a defense witness who appeared to refute her own statements she made to investigators, saying that the 60-year-old woman lied on the stand because drug smugglers ran through her yard "day-and-night" that her unwillingness to testify in open court was because she has to do back to "that house on the border." 

For more than 90 minutes, Chapman reiterated his argument that Elena Rodriguez was involved in drug smuggling and rust stains on his clothes was a sign that the teenager had climbed the fence and had been in the United States. 

"We know Mr. Rodriguez was involved in a smuggling operation," Chapman said. And, he said that drug smuggling in Nogales was a daily, even hourly event, involving narcotics coming over the fence. 

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And, Chapman blamed the people throwing rocks for the shooting, arguing that Swartz used deadly force because "those in Mexico were trying to hurt him and his fellow agents, and that's what he was trained to do." 

Most rocks, he said were "baseball-sized" and that Swartz had been trained that "rocks pose a risk of serious bodily harm." 

Agents are not required to take cover; they are trained that if someone has intent, means and opportunity to threaten severe injuries or death, then deadly force is allowed. Chapman was responding to an argument from Kleindienst that Elena Rodriguez lacked the means, opportunity, and intent to harm Swartz and other agents, and thus, the "jeopardy triangle" that forms the basis for the use of force was "irrevocably broken." 

Chapman reiterated a quote from Peter Hermansen, a former agent who also helped write the use of force policy that Swartz was trained under. He told the court last week that agents like Swartz are asked for "a reasonable response to unreasonable circumstances," he said. 

The defense counsel also reiterated a part of a memo from the former chief of the Border Patrol who reminded agents in a 2014 memo that from 2010 to 2014, agents had been rocked 1,713 times and in 43 instances, agents used deadly force, killing 10 people, including Elena Rodriguez. 

Kleindienst later pounced on this fact, noting that this meant in .0247 percent of times, agents used deadly force, making it an exceedingly rare occurrence. 

Chapman also attacked the prosecution's evidence, calling the use of video and a 3D reconstruction "manipulative." 

The thermal video is the "lynchpin of their case," he said, and the idea that the "blurry, out-of-focus video" shows Elena Rodriguez moving is "preposterous." 

"It's misleading to say that they have to take cover," Chapman said. 

Kleindienst referred back to Swartz's testimony, delivered last Monday, and said that the agent suffered gaps in his memory because he is struggling to explain why he fired his gun 16 times.

"He can't admit it to himself because the act is so horrendous," Kleindienst told the jury in his closing remarks. 

He also argued that the agents' description of his actions that night were a "fabrication" and that Swartz didn't suffer a "memory gap" but "an honesty gap." 

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Swartz said that his recollection of the incident at one point was "gray" and got very "distorted," and that he didn't remember emptying his magazine, and moving more than 45-feet from one location to another, before he reloaded and fired three more rounds across the border in Mexico. 

"All that went away magically because he can't justify it," Kleindienst said. 

While 14 people have served as the jury, including 12 jurors and two alternates, following the end of the case, the court's clerk tumbled a wooden box, and pulled out two pieces of paper, each with a juror's number. 

Juror 41 and juror 16, a man and a woman were selected to be alternates and will not be part of the deliberations. 

U.S. District Judge Raner C. Collins thanked them for the service and said they could be called back. 

The jurors did not return a decision by Monday afternoon. 

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

Family members of Jose Antonio Elena Rodriguez lit candles at a memorial for the boy, slain in October 2012 by Border Patrol agent Lonnie Swartz.

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