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BP agent's murder trial in cross-border shooting delayed until March 2018

The trial of Border Patrol Agent Lonnie Swartz, accused of unlawfully killing a Mexican teenager during a 2012 cross-border shooting, has been rescheduled as attorneys wrestle over the handling of the autopsy and notes that describe how the 16-year-old died.

Following a short status conference on Tuesday, U.S. District Judge Raner Collins agreed to delay the trial for the seventh time. 

The trial was originally slated to begin in November 2015, just two months after Swartz was indicted for second-degree murder by a grand jury for, "with malice aforethought," shooting and killing Jose Antonio Elena Rodriguez in Nogales, Sonora. 

Two weeks ago, federal prosecutors and Swartz's defense lawyer, Sean Chapman, agreed to postpone the trial, most recently slated for October 24, after Chapman filed a motion arguing he needed more time to deal with new information from the government. 

In his motion, Chapman said that the government had provided the defense with "a significant amount of information" in the last 30 days, which included information involving witnesses and evidence Chapman called "critical to key issues in the case." 

"Given the disclosure of this new information, the defense needs additional time to discuss its impact with several defense experts and conduct additional investigation," he said. 

On Sept. 11, Chapman wrote a motion to the court complaining that federal prosecutors had failed to "disclose key exculpatory evidence until the eve of trial," and argued for sanctions. 

Chapman said that the defense will not dispute that Swartz shot and killed Rodriguez that night. Instead, the defense will hinge on two questions: whether Swartz was acting in self-defense when he shot the boy, and whether Rodriguez was fatally shot in the head while he was standing, or after he collapsed to the ground, he said. 

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"The government’s theory is that after the first volley of shots, [Rodriguez] collapsed to the ground but was still alive and no longer a threat to Agent Swartz," Chapman wrote. "Nevertheless, the government argues, Agent Swartz continued to fire at him. Under this theory, Agent Swartz acted without legal justification and with malice aforethought by continuing to shoot at Elena-Rodriguez after he was incapacitated by the first set of shots and went to the ground." 

Chapman said that instead, the defense will argue that one of the first shots hit the boy the in the head, "instantly killing him and causing him to collapse." 

"It is the defense position that Agent Swartz was legally justified in using lethal force. Further, because the decedent was fatally injured with one of the very first shots while he was an active threat, Agent Swartz is not criminally liable for Elena-Rodriguez’s death, even if he continued to fire at him after he was killed, and collapsed to the ground." 

Swartz fired 16 rounds, once pausing to reload his weapon, before he fired more rounds into Mexico that night. 

A video recreation created by an expert witness for federal prosecutors and shown in open court in June suggested that the teenager was shot to death while he lay facedown on a sidewalk in Nogales, Sonora. This matched 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.  

However, Chapman argued in his motion that the first shot killed the boy instantly. 

"One of the central issues in this case is the moment in time when the deceased, Jose Antonio Elena-Rodriguez, suffered a fatal head wound during the sequence of 16 shots fired by U.S. Border Patrol Agent Lonnie Swartz," Chapman wrote. "If the wound happened at the onset of shooting, the government’s theory is completely undermined," he wrote. 

Chapman argued that the government had tried to overcome the "inconclusive autopsy report" completed by Mexican officials with the video animation and his own expert said that the fatal wound occurred while Rodriguez was still standing. 

"In light of parties' competing theories" Chapman said, the results of the autopsy completed in Mexico, "the only autopsy in this case," are critically important. 

However, Chapman argued that handwritten notes by Dr. Javier Diaz Trejo, one of two officials who worked on Rodriguez' body that night, were withheld by the government, and that federal officials interviewed Diaz in November 2016, but did not record the interview, and that one federal "case agent" was not in the meeting.  

"The lead prosecutor’s decision to order the case agent from the interview was so unusual," Chapman wrote that the FBI interview the agent about the incident, who said that she was "directed to wait outside because the room was 'crowded.'" 

Chapman said that in his 2016 interview, Diaz "allowed for the possibility" that Rodriguez was knocked to the ground from other shots, and was still alive when he suffered the fatal head wound, however, in 2014, Diaz "believed unequivocally that Elena-Rodriguez was standing," Chapman wrote. 

In a copy of the autopsy made available to TucsonSentinel.com, Diaz and Dr. Absalón Madrigal Godínez wrote that Rodriguez was killed by an injury to "the encephalic tissue by means of a projectile" from a firearm, and that the boy died from profuse bleeding "due to the "laceration of large vessels and the perforation of both lungs." 

U.S. Attorney Elizabeth Strange disputed Chapman's assertions, writing that on August 16, the government disclosed notes taken by Assistant U.S. Attorney Karen Rolley from an interview with Diaz and Madrigal in 2014. "These notes indicate that Dr. Diaz stated that the first impact to the victim was to the head, which resulted in death," Strange wrote. 

A month later, the government disclosed the notes of that interview taken by another attorney, and that notes "indicated that doctors stated that the first shot was to the victim’s head," Strange wrote. 

"The government agrees that these notes should have been disclosed sooner, and apologizes for the delay. As explained below, however, the late disclosure was not intentional, and does not prejudice the defendant," Strange wrote. 

Strange also took at shot at Chapman's argument that a case agent was asked to leave the room. The agent, Sarah Arrasmith was asked to leave the room "because of the size of the office, and the number of people present." 

"The number of people remaining in the interview, and the fact that two participants took extensive notes, rebuts any suggestion that Agent Arrasmith’s absence from the room was part of some nefarious plot," Strange wrote. 

She also argued that the late release of notes, was "a result of the large volume of material generated by the case." 

"Problems caused by such a large volume — over 11,000 pages — do not indicate bad faith," Strange wrote. 

Chapman has submitted more than two dozen challenges since the original indictment. 

Chapman has claimed that the government did not have the jurisdiction to try Swartz, has attacked video evidence of the shooting by arguing that U.S. Customs and Border Protection "lost" original video of the incident after handing over compressed imagery to the FBI, and argued that a witness should be able to submit testimony in a videotaped deposition rather than appear to testify in open court.

He has also moved to dismiss the case because statements made by Swartz following the shooting were quashed by Collins, following one of Chapman's motions. 

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.