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Swartz trial: 4 new witnesses describe shooting death of Mexican teen

Four additional witnesses described in court on Friday their recollection of the events surrounding the killing of Jose Antonio Elena Rodriguez, 16, who was shot to death by Border Patrol agent Lonnie Swartz in Nogales more than five years ago.

Swartz is on trial for second-degree murder, accused of unlawfully killing the teen on October 10, 2012 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. The trial began earlier this week in a federal courtroom in Tucson.

Two Border Patrol agents, a camera operator with the National Guard, and a Nogales police officer gave new details about the chain of events that led to the shooting of Rodriguez through the 22-foot-high border fence.

Cassandra Crane, a surveillance system specialist with the National Guard, testified how she observed the events of that night, watching through the Border Patrol's remote camera systems mounted on poles along the U.S.-Mexico border.

Prosecutors played segments of audio and video from two cameras that captured the incident and Crane testified how she understood the events of that night, giving one of the clearest timelines about the incident from start to finish.

From one camera, mounted on a pole at a location known as "Hamburger Hill," Crane watched as two men clambered over the border wall carrying bundles and ran into the neighborhood heading toward Interstate 19, which loops around part of the city as it heads toward the Dennis DeConcini Port of Entry.

Crane directed agents to move in, hoping to intercept the men as they turned back south, and watched as the men move among the houses, disappearing from the camera's view, until she realized that the bundles were gone. Crane directed an agent to head toward that spot, to the last place she had seen them carrying the bundles, which were assumed to be narcotics, she said.

Crane spotted the two men, now hung up on the border fence, and watched as Border Patrol agents and Nogales police officers surrounded the pair, and started ordering them to come down.

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Then, on the radio, a burst of transmissions came in. "Shots fired, you're getting rocked. Shots fired."

Crane asked for the agent's "star" or badge number, and then ordered agents to limit radio traffic, restricting the radio to just that incident. Someone is down, she said. "They're 10-7, out of service."

"What does that mean," asked Wallace Kleindeist, one of the assistant U.S. Attorneys. "It means, they're down, hit....  Just down," Crane said.

Following the incident, Crane and the other two camera operators, said they began dealing with incident, taking notes, communicating with calling supervisors, EMS, and Mexican authorities.

Jim Calle, one of Swartz's defense lawyers, asked Crane about how she felt that night because she seemed so calm on the radio.

"You try to maintain your composure, you don't want to get everyone's blood pressure up. There's so much traffic you get used it it," Crane said. "It happens so much you get used to it."

Crane also answered questions about problems with the cameras, including the fact that the image from one camera, which was focused on Rodriguez's body, was blurry. The infrared cameras cannot focus automatically, she said, and when a camera is quickly slewed around, it can create a sense of motion, when there isn't any, she said.

Calle asked several questions on this issue, and also the fact that when the camera was focused on Rodriguez's body, the infrared image, which captures heat and represents it as deep black among ghostly grays, was blurry.

"Where you trying to capture the incident as best as you could?" asked Mary Sue Feldmeier, the other prosecutor. "Yes ma'am," responded Crane.

Stephen Porter, a Border Patrol agent, was with Swartz and Border Patrol agent Shandan Wynecoop at the port of entry just before the incident.

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Wynecoop testified on Wednesday and Thursday, and described how the trio ran from the port toward the incident.

Porter, along with the other two agents, were on break with a supervisor when they spotted two men on the fence through double-doors at the border crossing.

Once they were convinced the men were committed to heading north, the agents headed that direction on foot, and cornered the men back on the fence. Porter said he would not go after the men, because it was "an officer safety issue" and instead, moved down to where Nogales police department officer Quinardo Garcia was looking for drugs.

Garcia testified on Wednesday, and said he heard rocks coming through the trees, and then gunshots.

He and Garcia went down a driveway toward a house, and heard yelling from the south side of the fence, and not long after, he heard rocks "come through," he said.

"Did you fear for your life?" asked Kleindienst. "No, I did not," Porter said.

Then he heard gunfire, he said. At first, he tried to take cover by a car, but when he realized that the shots were coming from the south, he left his position, and headed back to the fence.

"Why did you leave cover?" Kleindienst asked.

"I knew there were agents there, and I knew I could help, return fire, whatever," Porter said.

Porter said he found Swartz up against a telephone pole, back by sidewalk, and saw him throw up.

On cross-examination, Chapman asked, "Just so we’re clear, does your training dictate that you have to take cover every time that someone throws a rock at you?"

Backing off would mean more rockings, Porter said. "If every time they throw a rock, we had to take cover, they’d throw more rocks and it would be easier to get things over," said Porter.

Kleindienst returned, and asked Porter about an incident in which he was rocked. Porter said that he was chasing a man in the mountains, and then the man fell, and when he came up he had a rock and hurled it at the agent, clipping his arm. "My arm went completely numb," Porter said.

He finally got to the man and a "fight ensued," ending only when Porter got his cuffs on the man, he said.

"You know that rockings occur frequently? You're not saying that every rock is the same, every rocking is the same?" asked Kleindienst

"No sir."

"Just because someone throws a rock toward you or at you, that doesn't let you shoot him?" Kleindienst asked.

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"That's correct," said Porter.

"You can't just make a personal decision to shoot to kill, would you?"

"It depends of my perception, but no," replied Porter.

Porter was followed in the witness chair Friday by Border Patrol Agent Joshua Devowe, who was one of the first agents right at the scene the night of Rodriguez's death. Devowe drove up in a Border Patrol truck, and immediately aimed his taser at one of the men on the fence.

"Did you see any rocks going over?" asked Kleindienst.

"No sir," Devowe said.

"Did you hear any rocks going over?"

"No sir."

"I heard, I don't remember that rocks were being thrown and that a Nogales (police department) canine had been hit by a rock," said Devowe.

"You didn't know that before hand, you were not in fear of your life, any time that night?" asked Kleindienst. 


Devowe said that he saw Swartz reload his weapon, but he couldn't see the shots. After Swartz finished firing, Devowe told him to get off the fence, because the other agents had him covered, he said.

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Swartz said it was a good shoot, or clean shoot, Devowe said.

Later in the day, Johnny Zuniga, a Nogales police officer, testified in the case, about the what he saw when he and his NPD dog, Tesko, responded to the report of two men on the fence.

Zuniga was responding to Garcia's call and as he drove up, he spotted the two men on the fence, so he stopped in the center of the street, and left his vehicle to speak to the men, asking them to come down in Spanish, and telling them that being up on the fence was dangerous, he said.

One of the men said "I'm going to give up," but the other man said "no, no I'm going to help you," and he dragged his compatriot up by the shoulder. Zuniga went back and got Tesko, and got the dog to bark so the men would know he had the dog.

"What was your enforcement goal?" asked Kleindienst.

"Wait and see," Zuniga told the court.

"Was this a normal enforcement day for you?" Kleindienst asked.

"Yes," Zuniga said.

"I notice or hear rocks coming over, little thunkers. I'm looking up at them, hear something, I saw a rock in the air," said Zuniga.

"I backed off trying to take cover, trying to hide," Zuniga said. He went to put Tesko in the car, where he could sit in a protected kennel, and heard gunshots. Zuniga moved to cover, and pulled out his gun, he said.

"Did you see your dog get hit? Did you feel it?" Kleindienst asked. "You were told that your dog had been hit?"

Zuniga said that an agent told him the dog was hit, and he went to check on Tesko, putting his hands on the dog and feeling for injuries. He didn't find any signs that the dog had been hurt, an opinion later confirmed by a vet, he said.

Chapman played a chunk of audio "We're getting rocked, we're getting rocked." "Seems to be a level of stress." "It's a scary experience."

"Did you howl in pain and let someone know you were in dire straits? Did you need Swartz to go to the fence and defend you and your dog?" asked Feldmeier. 

"No," said Zuniga. 

"Where you in grave danger?" Kleindienst asked. 

"No, grave danger is when someone is shooting at me," Zuniga said. 

The trial will reconvene on Tuesday, March 27 at 9:30 a.m. 

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Paul Ingram/TucsonSentinel.com

Lonnie Swartz, the Border Patrol agent accused of unlawfully killing a 16-year-old Mexican teenager in 2012, entering the federal courthouse in Tucson.


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