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Border agent's murder trial delayed yet again, will begin in October

The trial of Lonnie Ray Swartz, a Nogales-area Border Patrol agent accused of second-degree murder for the 2012 cross-border shooting of 16-year-old Jose Antonio Elena Rodriguez, has been delayed for a sixth time. 

Originally slated for February and then delayed until June 19, the trial will now begin on October 12, just two days after the five-year anniversary of the slaying. 

U.S. District Judge Raner Collins set a new trial date late Friday, but said that a hearing will be held on the previous trial date June 19 to "address all remaining outstanding motions." 

The trial was originally slated for November 2015, just weeks after the agent pleaded not guilty, but it was repeatedly delayed throughout 2016. 

Swartz was indicted by a federal grand jury for second-degree murder, alleging he aimed his semi-automatic pistol through the border fence and shot at Rodriguez, hitting him nearly a dozen times, with most of the bullets striking the boy in the back. The indictment alleges Swartz acted "with malice aforethought" when he unholstered his weapon and fired through the fence, killing the teen.

Border Patrol officials said that Swartz fired into Mexico in response to a hail of rocks aimed at agents and a Nogales police officer, who were attempting to stop a group of drug smugglers near the fence dividing the twin cities of Nogales, Arizona, and Nogales, Sonora. 

While the trial was delayed, Collins considered several issues, including whether federal prosecutors can file charges against Swartz, and how to handle statements made by Swartz following the shooting. 

While those issues have been put to rest, Collins has yet to rule on the admissibility of video evidence. 

In March, Swartz's lawyer, Sean Chapman argued that copies of border surveillance video should be precluded as evidence because during the transfer of the original digital video, the government compressed the images, violating its own guidelines. 

The incident had been recorded by "several Border Patrol pole cameras operating in the area" and that on the night of the shooting, the FBI responded and obtained a copy of the videos, but "made no effort to preserve the original." 

"Several years later, in October, 2015, efforts were made by law enforcement to obtain the original video captures of the incident that night. By this time, however, the original video (contained on a hard drive) had been lost or destroyed," Chapman wrote. 

This compression has resulted in "deeply flawed images," Chapman argued. 

Federal prosecutors retained a video expert, James Tavernetti, to recreate video of the incident and made several video recreations, including one which shows Swartz firing at Rodriguez from three different positions. 

Another video Tavernetti made shows Rodriguez still moving after he collapsed, "a critical fact in this case," Chapman said. 

Chapman said that his own video expert concluded that the video recreations created by Tavernetti are "completely unreliable given that they are based on a flawed copy of the original video, which was not preserved or made available." 

While the criminal trial will move forward, a civil suit filed by the Rodriguez family remains in limbo after a three-judge panel with the Ninth Circuit Court of Appeals refused to rule, holding their decision until the U.S. Supreme Court rules on a similar cross-border shooting case from Texas. 

The Supreme Court has yet to rule on Hernandez v. Mesa, but a decision is likely to come in the next few weeks. 

Should the Supreme Court justices rule that the family of Sergio Adrian Hernandez Guereca, a 15-year-old boy who was shot and killed by Border Patrol Agent Jesus Mesa Jr., cannot sue, it's likely that the lower court would follow and rule against the Rodriguez family. 

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However, if the court's justices are tied, the case would likely be reheard with the addition of Neil M. Gorsuch, who was confirmed by the Senate in early April as a replacement for Justice Antonin Scalia, who died last year. 

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

A photograph of Jose Antonio Elena Rodriguez during a vigil held for the boy in Nogales, Sonora in April.