'Complex' trial in BP shooting delayed until November

The trial of Lonnie Ray Swartz, a Border Patrol agent accused of second-degree murder for the 2012 cross-border shooting of 16-year old Jose Antonio Elena Rodriguez, has been pushed back until November. It had been scheduled to begin later this month.

The trial was delayed at the request of Swartz's attorney — the third time the defendant has asked for his trial to be moved back.

U.S. District Judge Raner Collins rescheduled the trial during a hearing Tuesday morning in Tucson.

Swartz's attorney, Sean Chapman, asked that the trial be set for early November or January to avoid trying to empanel a jury to serve during Christmas. Prosecutors pushed for the earliest date possible.

The case was designated as complex, which allows the extension despite federal "speedy trial" rules. Chapman said that more than 700 pages of disclosures complicate the case.

Prosecutors agreed to the designation and date.

"I'll be bringing up several witnesses from Mexico and will need time to notify them," said Assistant U.S. Attorney Wallace Kleindienst.

Collins set an Aug. 15 deadline for motions in the case, but told the attorneys that "anything major we need as soon as possible."

Swartz was indicted by a grand jury last September for shooting through the border fence and killing Rodriguez in October 2012. The boy was walking along the sidewalk on Calle International near the international boundary when he was hit by nearly a dozen rounds, with 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.

In January, Collins delayed the trial until mid-March following a motion for a continuance by Chapman.

Border Patrol officials have contended that Swartz and another agent were responding to a rock-throwing incident that broke out after the agents and a Nogales police officer attempted to stop a group of drug smugglers near the fence dividing the U.S. and Mexican halves of Nogales.

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 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 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 have been at least 10 fatal shootings since 2010, including the death of 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.