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Swartz trial

Video reconstruction shows BP agent firing, reloading in fatal cross-border shooting

Based on a video recreation made by an expert witness for federal prosecutors, 16-year-old Jose Antonio Elena Rodriguez may have been shot to death while he lay facedown on a sidewalk in Nogales, Sonora, after a U.S. Border Patrol agent fired 16 rounds through the border fence, once pausing and reloading his pistol, nearly five years ago.

Agent Lonnie Swartz faces charges of second-degree murder in Rodriguez's death.

During a Monday hearing on motions pending before the trial, now scheduled for October after several long delays, members of Rodriguez's family were brought to tears by images of his autopsy, which were displayed for the court along with a video model of the boy's shooting death.

The video was presented as evidence by federal prosecutors as part of a motion hearing before U.S. District Judge Raner Collins on Monday that should determine whether a jury will see a series of 3D models, along with testimony by expert James Tavernetti. 

The recreation was the first glimpse of video recorded the night of Oct. 10, 2012, by two cameras mounted along the international boundary line. While its been clear that cameras were there, federal officials were originally reticent to admit that video evidence of the shooting existed. However, in recent months, filings by federal prosecutors and the defense, along with an order by Collins, has made it clear that video of the incident was indeed captured by the cameras.

Collins has blocked the release of the videos to the public.

Monday's hearing offered the first window into the movements of Swartz that night, when he emptied the magazine from his P2000 pistol once before pausing to reload, and then fired three more rounds into Mexico. After firing his weapon, Swartz then leaned down and retrieved his empty magazine. 

In March, Sean Chapman, Swartz's attorney, wrote that the video recreations were "completely unreliable given that they are based on a flawed copy of the original video, which was not preserved or made available to their expert." 

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The incident was recorded by "several Border Patrol pole cameras operating in the area," wrote Chapman, arguing that the video images should be precluded as evidence because during the transfer of the original digital video, the government compressed the images, violating its own guidelines. 

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. 

However, during the hearing Monday, Gary Weaver, a field technology officer with the Nogales station, said that the video was not compressed, but instead was copied directly from the digital video recorders maintained by the Nogales station. During the hearing, Weaver said that the day after the shooting, he received a request from a Border Patrol supervisor, who asked him to preserve the video from two cameras stationed to the east and west of the incident. 

Weaver said that the agency maintained two digital video recorders in Nogales at the time, each one storing two terabytes of data from 16 cameras. The agency purchased the system for a total cost of nearly $38,000 in 2009 to store video from the area's 32 cameras and maintain it for up to 90 days, he said. 

The system was purchased to "stress quality" and recorded video from the agency's cameras at a resolution of 704 pixels by 480 pixels, he said. Weaver said that the recorders compressed the video images from the system's cameras, used a default compression algorithm, "but it works by eliminating redundant information, but not by removing quality." Instead, the compression is "done in the recording device itself," Weaver said. 

"This machine allows you to produce exact copies of what’s on the DVR," Weaver said. "This DVR, the video is encoded, it takes the encoded video, wraps it into an executable file, to minimize additional encoding." The executable file was copied to the CD and then handed over to the FBI, which ultimately handed the video recording to Homeland Secuity's Office of Inspector General. 

"Both the government and defense experts have been given copies of the data on the original CD and have been offered the opportunity to examine the original disk," wrote Mary Sue Feldmeier, one of the prosecuting attorneys, in a brief to the court. 

In September 2015, the OIG and the U.S. Attorney's Office requested to preserve the original DVRs, but discovered that the devices had been surplussed by Border Patrol and ultimately destroyed. 

Weaver said that despite this, the video eventually used in the recreation was not compressed. 

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During a cross-examination, another lawyer for Swartz, Jim Calle, asked "In your opinion, if an expert had pulled this DVR and analyzed versus copy, would that person see anything different?" 

"No," said Weaver. 

Following the cross-examination, Collins asked a few questions, including: "If the camera recorded something different, that’s the camera’s fault, not the DVRs?" 

"Yes," said Weaver. 

Following Weaver's testimony, Tavernetti took the stand and spent nearly five hours describing his process, which incorporates photographs, video imagery, as well as a 3D reconstruction of the scene created using a laser to sweep across the area, picking up nearly 112 million individual points to create a 3D model of the street scene where the shooting took place. 

This image had enough data to show cracks in the sidewalk, Tavernetti said. 

Tavernetti added data from Rodriguez's autopsy, as well as photographs created by the Border Patrol's own critical incident team to locate the positions of rocks, shell casings, and vehicles. 

The presence of rocks is important because Border Patrol officials said after the shooting that Swartz fired into Mexico in response to a hail of rocks aimed at agents and a Nogales police officer, when they attempted to stop a group of drug smugglers near the fence dividing the twin cities of Nogales, Arizona, and Nogales, Sonora. 

During the incident, a Nogales police dog was reportedly hit by a rock, and the video recreation included the positions of rocks at the scene. 

This is all combined into a detailed model that Tavernetti can animate. In one animation, a virtual camera swoops in over the scene rendered in black and white, hovers over the street, and then pulls back to reveal the international boundary fence and three Border Patrol vehicles. 

Tavernetti can place cameras into different positions to "test eyewitness perspectives" he said, using the virtual cameras to for instance, prove that a witness could have watched an incident through the window, or that they couldn't see because it was around a corner, he said. 

Using a wealth of evidence, Tavernetti said he could "place objects in the scene confidently." 

A model of Swartz, created by measuring his height and weight, was used to track his movements during the incident, and shows the 6-foot 2-inch Border Patrol agent move three times during the shooting, firing at Rodriguez from 66 to 72 feet away. 

Meanwhile, another video shows two figures on the street in Nogales, while a third moves into view from the west. Rendered as a red upright rectangle, the figure represents Rodriguez, who shifts forward, turns and then moves toward a wall before falling to the ground. 

This matches a contention from Rodriguez's family that he was walking on Calle Internacional to meet his brother Diego, who worked at a nearby Oxxo convenience store, when he was killed. 

Tavernetti explained that he tried to match entry and exit wounds on the boy's body to match the movements of Swartz, using different models to try to explain the boy's position. In one version, the boy is upright and hurling a rock in a difficult, "extreme throwing position," Tavernetti said. But, in another, the boy is lying on the ground, collapsing when a final round strikes him in the head. 

This matches an autopsy by Mexican officials which said that the bullet holes were angled from the "back to the front" including an entry point "behind the auricle of the ear" and in the "posterior region" of the neck and back. 

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Several members of the Rodriguez family attended the hearing Monday, but when photographs of the boy's autopsy came up on courtroom monitors during Feldmeier's presentation, Rodriguez's grandmother—Taide Elena Rodriguez— burst into tears. 

Photographs taken by Mexican authorities immediately after the shooting showed the Rodriguez lying face down on the street with his arms under his torso, and a gush of blood from a wound in the right side of his face. 

Calle pressed Tavernetti on arcane aspects of the video recording and the recreations, delving into questions about the frame-rate of the original video, the aspect ratio, and the use of upright rectangles to represent three figures who were on the street in Nogales, Sonora that night, as well as one used to track and identify Swartz as he fired his weapon. 

"You used these models to help paper over some imperfections that were in the video?" Calle asked at one point.  

"Yes," said Tavernetti. But, later, he added, "It’s surveillance video, it presents the scene accurately." 

"It’s my process to strive to get the best of everything I can get," Tavernetti said. "I need the most original file I can get to."

Following hours of testimony, Collins asked a few questions and finally asked, "As I understand your testimony, what you essentially did, was take the video, take the measurements, and enhance it. Make it easier to to see—maybe enhance is the wrong word." 

"The animation then, I mean no disrespect when I ask this question, you’re not making stuff up?" Collins asked. 

Tavernetti replied, "No." 

"You trying to put a picture together" Collins asked. Tavernetti agreed. 

The hearing will continue through Tuesday afternoon and may extend into Thursday as both sides wrangle over a series of motions that were due this week. This includes statements made by Swartz after the shooting, an attempt by the defense to get the case dismissed, and the testimony of a witness, who told investigators that they spotted Rodriguez in the United States before the shooting. 

And, once this week is over, the defense has two more weeks to reply to a filing by the federal prosecutors about the testimony of a use-of-force expert, and a filing by the defense to present a public relations video, produced by Border Patrol, that illustrates the dangers of rockings, including video from San Luis, Arizona and San Diego, California. 

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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 spot where 16-year-old Jose Antonio Elena Rodriguez died in Nogales, Sonora seen through the U.S.-Mexico border.