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Swartz trial: 2 BP agents describe shooting death of Mexican teenager

The testimony of two key witnesses in court Thursday provided further details into the actions of a Border Patrol agent accused of killing 16-year-old Jose Antonio Elena Rodriguez during a cross-border shooting in Nogales more than five years ago. 

Lonnie Swartz is on trial for second-degree murder, accused of unlawfully killing the teen after he fired 16 rounds in 34 seconds, hitting the boy in the head and back. Rodriguez died on a sidewalk on the Mexican side of the border, down an embankment from where Swartz stood on the U.S. side of the border fence.

On Wednesday, the trial began with opening arguments, and then prosecutors launched into their case. 

Shandan Wynecoop, a former Border Patrol agent who was on duty in Nogales that night, finished the testimony he began Wednesday, telling the court that when rocks came over the border fence he backed away toward the sidewalk. 

Wynecoop described a chaotic, evolving scene that included at least a half-dozen agents and police officers attempting to apprehend two men who had clambered up the 22-foot-high bollard fence separating Nogales, Arizona from Nogales, Sonora.

Wynecoop, along with Swartz, and another agent were assigned to inspect outgoing traffic at the Dennis DeConcini Port of Entry a few hundred yards away when the incident began the night of Oct. 10, 2012, and they rushed to the scene on foot. 

Wynecoop said that he was focused on the two men who were stranded on the fence. One man was straddling the metal bollard fence, and the other was struggling to climb back up. At one point, Wynecoop said that Johnny Zuniga, a Nogales police officer, brought out his canine, while another Border Patrol agent, who arrived from the west, pulled out his taser and aimed at one of the man with the laser sight. 

As the officers and agents ordered the men off the fence, a few rocks tumbled in, thrown from the other side of the fence, and one hit the toe of his boot, said Wynecoop. Realizing that people on the street in Nogales, Sonora, about 18 feet below them, were throwing rocks, Wynecoop said he backed up and tried to get some distance from the fence. 

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"Was the rock painful?" asked William Kleindienst, the other assistant U.S. Attorney trying the case. "No," said Wynecoop. 

"I was scared. I was really junior, and it was really the first time I had been involved in something like this. It was really scary for me," he said.

On Thursday, Wynecoop said that backing away had been a "personal choice," and that doing so is a "case-by-case thing. But you do what you think you should do," reported the Nogales International. 

Later, during his cross-examination, Swartz's defense lawyer, Sean Chapman tried to emphasize that not only can rocking incidents be scary and dangerous, but that different agents can respond to an attack differently, and still be right. 

Wynecoop said that he "didn't know what direction" the rocks were coming from. "I didn't know how many people were throwing rocks and how long it was going to continue," he said, reported the Arizona Republic. 

Prosecutors focused on how Swartz approached the fence with his gun already drawn, and played surveillance video of the shooting captured from a pole camera operated by a Border Patrol agent. Prosecutors asked Wynecoop if Swartz had drawn his weapon. 

"By the posturing it seems like he had," Wynecoop said.

"Rocks still hadn't fallen, right?" asked William Kleindienst. 

"No," Wynecoop responded.

Prosecutors later called Leo Cruz-Mendez, a supervisory Border Patrol agent, who was on duty that night and responded within minutes following the shooting. 

As part of the agency's use of force policy, Cruz-Mendez interviewed Swartz just a few minutes after the shooting and asked him a standard "8 questions" about his actions, and those answers were later submitted in an oral report to supervisors. 

Cruz-Mendez later repeated these answers to the grand jury that indicted Swartz, however, last August, U.S. District Judge Raner C. Collins ruled that Swartz made these statements with the understanding that they would not be used to incriminate him in a criminal proceeding because his statements were "compelled, coerced and involuntary." 

Because of that ruling, the trial jury will not hear Swartz's responses to those questions.

Cruz-Mendez said that when he arrived at the scene, Swartz "was kneeling down and his weapon was pointing toward the border fence." Cruz-Mendez said he tapped Swartz on the shoulder, and told his fellow agent, "Everything is going to be OK," he said. 

Swartz looked up and then began vomiting, telling Cruz-Mendez, "You don't understand." 

"He said he had fired his weapon and that he had hit someone," Cruz-Mendez said, the Arizona Republic reported. 

The supervisory agent asked Swartz how many rounds he had fired, and Swartz told him he didn't recall, Cruz-Mendez said. 

Cruz-Mendez switched weapons with Swartz so he could preserve evidence, and Swartz also handed over the magazine that he had emptied, firing 13 rounds across the border. Each magazine holds 12 rounds, but Border Patrol policy requires agents to have an addition round already chambered and at the ready. After he reloaded, Swartz fired an additional three rounds. 

The Arizona Republic reported that the empty magazine caught Cruz-Mendez's attention. "When he gave me his magazine, it caught my attention, the amount of shots that had been fired," Cruz-Mendez said.

The long-delayed trial on a charge of second-degree murder opened this week after a jury was picked Tuesday. The case will resume Friday, and is expected to last at least two more weeks.

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Paul Ingram/TucsonSentinel.com

The altar of Jose Antonio Elena Rodriguez, 16, who was shot and killed by a U.S. Border Patrol agent in 2012.


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