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Swartz trial: Judge sends deadlocked jury back into deliberations

Jurors in the trial of Lonnie Swartz, the Border Patrol agent accused of second-degree murder, told a federal judge Friday afternoon that they have been unable to reach a unanimous verdict after nearly three days of reviewing the case.

The judge gave them an "Allen charge" and instructed them to return to their deliberations.

Swartz is on trial for second-degree murder in the killing of 16-year-old Jose Antonio Elena Rodriguez during a cross-border shooting in Nogales the night of Oct. 10, 2012.

Late Monday afternoon, jurors began their deliberations after hearing closing statements from prosecutors and defense attorneys, who 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." 

Jurors continued to deliberate through Tuesday and Wednesday, but were not in deliberations on Thursday. 

Around 2 p.m. Friday, U.S. District Judge Raner Collins said that he been advised that the jury could not reach a decision, and told them to return to deliberations, reading them a set of instructions known as an Allen charge. 

The instructions ask jurors to reexamine their own views, but not to change "an honest belief" because of the opinions of fellow jurors or "for the mere purpose of returning a verdict." 

Collins read his instructions to a grim-faced courtroom gallery, as Swartz and his defense team, along with federal prosecutors, listened. 

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The family of Elena Rodriguez was at the courthouse on Friday, but they did not attend the short hearing.

The jury will resume deliberations Monday at 9:30 a.m.

The case represents one of the few times that a Border Patrol agent has faced trial for using deadly force in Arizona. 

In 2008, Nicholas W. Corbett was tried twice in 2008 for second-degree murder stemming from the killing of Francisco Dominguez-Rivera, a 22-year-old Mexican man. Corbett arrested Dominguez-Rivera along with three others, and then shot him at close range.

However, a jury refused to convict the agent, and the charges were dismissed. 

Federal prosecutors said that Swartz "calmly and deliberately" walking up the fence and 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.

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, said prosecutor Wallace Kleindienst during closing arguments on Monday. 

Elena Rodriguez died on the sidewalk on Calle Internacional 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 and lasted for 16 days. 

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." 

The agent, who remains on unpaid leave since he was indicted in 2015, faces up 30 years to life in prison if he is convicted of second-degree murder. 

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However, jurors were instructed that if they could not 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.

Kleindienst said that Swartz was "fed up with people throwing rocks at the fence."

"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," Kleindienst said. 

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

Sean Chapman, one of Swartz's defense attorneys, told jurors during closing arguments Monday 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. 

On Tuesday, jurors deliberated throughout most of the day, however, at one point they filled into the courtroom and asked to hear Swartz's testimony read back to them, which took more than two-and-a-half hours. 

On Wednesday, the jury asked a question of Collins, but neither the question nor the answer were heard in open court. 

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." 

A witness for the prosecution, Dr. Emma Lew argued in court last week that Swartz's first shot hit the boy in the back as he was ducking, shattering four of his vertebrae creating shrapnel that sliced into his lungs and his aorta, the large artery that connects to the heart. Lew argued that this first shot likely paralyzed the boy, and he collapsed to the ground, smashing his hands and face into the concrete and damaging his front teeth, she said in court.

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

Their own pathologist, Dr. Cyril Wecht, argued in court on Wednesday that Lew could not reliably ascertain which shot came first to a "reliable medical certainty" and argued that the shot to the boy's head could have come while he was running upright.

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

Lonnie Swartz walks into federal court where he faces a second-degree murder charge for shooting and killing a 16-year-old boy in 2012.

Model instructions for deadlocked juries

Federal procedures allow for the "Allen charge" — named for an 1896 Supreme Court case — an instruction for juries that have been unable to reach a unanimous verdict. Arizona state courts do not allow judges to so instruct juries. Swartz is being tried in U.S. District Court, so this instruction approved by the 9th Circuit Court of Appeals could be applied by the judge in his case:

Members of the jury, you have advised that you have been unable to agree upon a verdict in this case. I have decided to suggest a few thoughts to you.

As jurors, you have a duty to discuss the case with one another and to deliberate in an effort to reach a unanimous verdict if each of you can do so without violating your individual judgment and conscience. Each of you must decide the case for yourself, but only after you consider the evidence impartially with your fellow jurors. During your deliberations, you should not hesitate to reexamine your own views and change your opinion if you become persuaded that it is wrong. However, you should not change an honest belief as to the weight or effect of the evidence solely because of the opinions of your fellow jurors or for the mere purpose of returning a verdict.

All of you are equally honest and conscientious jurors who have heard the same evidence. All of you share an equal desire to arrive at a verdict. Each of you should ask yourself whether you should question the correctness of your present position.

I remind you that in your deliberations you are to consider the instructions I have given you as a whole. You should not single out any part of any instruction, including this one, and ignore others. They are all equally important.

You may now retire and continue your deliberations.