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Border agent's murder trial delayed until March
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Border agent's murder trial delayed until March

  • A procession marking the third anniversary of the Oct. 10, 2012 death of 16-year old Jose Antonio Elena Rodriguez ends at the spot where the teenager died after being hit approximately 10 times by gunfire from a U.S. Border Patrol agent.
    Paul Ingram/TucsonSentinel.comA procession marking the third anniversary of the Oct. 10, 2012 death of 16-year old Jose Antonio Elena Rodriguez ends at the spot where the teenager died after being hit approximately 10 times by gunfire from a U.S. Border Patrol agent.

The trial of a U.S. Border Patrol agent, accused of second-degree murder for the cross-border shooting of a Mexican teenager in Nogales, has been delayed until March 22.

Lonnie Ray Swartz was indicted by a grand jury in September for shooting through the border fence and killing 16-year-old Jose Antonio Elena Rodriguez in October 2012. The boy was walking along the sidewalk on Calle International near the international boundary when he was struck by nearly a dozen rounds, most of the bullets striking him in the back.

In a single-page document, the grand jury wrote that Swartz, "did with malice aforethought, and while armed with a P2000 semi-automatic pistol unlawfully kill J.A.E.R."In October, Swartz pleaded not guilty to the charge.

U.S. District Judge Raner C. Collins delayed the trial until mid-March following a motion for a continuance by the agent’s lawyer, Sean Chapman. This is the second time that Chapman has requested a delay.

The prosecutor, assistant U.S. attorney Wallace Kleindienst did not object.

Video evidence

In November, Collins issued a protective order sealing two videos taken from cameras mounted on towers overlooking the international boundary.

The order was necessary because Chapman is also representing Swartz in a civil lawsuit mounted by Elena Rodriguez’s family.  Federal rules would require Chapman to hand over thousands of pages of documents, as well as the two videos.

The government argued that the disclosure could prejudice potential jurors.

"Thus the government's criminal disclosure — the entirety of its case against Mr. Swartz — would likely enter the public domain and be subject to media dissemination in Tucson and around the country," wrote U.S. Attorney John Leonardo. "Public disclosure of this evidence moreover would substantially prejudice both the government's and the defendant's right to a fair and unbiased jury in the criminal trial."

While there have been signs that the videos existed, federal officials have refused to say what the cameras were able to record that night, and have claimed exemptions to freedom of information requests.

However, James Tomscheck, the ousted head of U.S. Customs and Border Protection’s internal affairs office, described the videos during an interview with Telemundo in December.

"I saw that there was a Border Patrol agent and two Nogales police officers who had a K-9 with them simply watching the two marijuana smugglers climb the border fence and return to Mexico. They did not appear in any way to display any concern for their safety,” Tomscheck said. "A second Border Patrol agent arrives on the scene, gets out of the vehicle, walks to the border fence, draws his firearm and begins firing through the fence into Mexico."

Tomscheck also said that he had gone to scene, and told correspondent Jose Diaz-Balart that from where Elena Rodriguez was, “there was no projectile that he might throw that could possibly clear the border fence.”

After eight years as the assistant commissioner for internal affairs, Tomscheck was reassigned in June 2014 and sought federal whistleblower protection. The following August, Tomscheck told the Center for Investigative Reporting that several deadly force incidents by U.S. Border Patrol agents were "highly suspect” and that officials consistently changed facts to make a case to justify shootings.

Use of force criticisms

In Tucson Sector alone, there were 10 fatal shootings since 2010, including the death of Elena Rodriquez.

Over the past two years, the agency has been repeatedly hammered by oversight boards for its use of force policies. 

In May 2014, the agency published a review by police experts critical of the CBP's "no harm, no foul" approach in 67 deadly force incidents. Experts with the Police Executive Research Forum wrote that "too many cases do not appear to meet the test of objective reasonableness with regard to deadly force."

The agency soon adopted new rules of engagement, telling agents to seek cover or move back as alternatives to firing on people throwing rocks, and to avoid putting themselves in front of moving vehicles. 

In June 2015, a draft report by the Homeland Security Advisory Council issued a series of recommendations, including doubling the number of investigators, altering the use-of-force policy to focus on the preservation of human life, and adopt clearer guidelines on when agents should fire their weapons.

CBP Commissioner Gil Kerlikowske has responded by changing how agents apply force, especially against rock-throwers, changing the training of CBP agents and officers, and has given CBP the ability to investigate its own people, rather than relying on a byzantine system that can involve U.S. Immigration and Customs Enforcement and the FBI. 

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