Swartz trial: 3D model shows BP agent shot at fallen boy

A 3D reconstruction created from photographs, videos, and computer models shows that Jose Antonio Elena Rodriguez, the 16-year-old Mexican teenager shot and killed by a Border Patrol agent more than five years ago, may have fled more than 16 feet before he collapsed over a curb, and was hit by two volleys of gunfire.  

James Tavernetti, an expert who created a series of "demonstratives" for federal prosecutors, spent several hours over two days describing his process, which combined data from Border Patrol investigators, a laser scan of the scene, photographs, autopsy data, and video from two cameras mounted on poles along the U.S.-Mexico border to build a 3D model of the scene. 

Tavernetti was one of two witnesses asked to testify Thursday by prosecutors as they continued to construct their case against Lonnie Ray Swartz, the Border Patrol agent on trial for second-degree murder for killing Rodriguez during a cross-border shooting in Oct. 10, 2012. 

Swartz 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 last week in a federal courtroom in Tucson.

Tavernetti's recreations have been the focus of several motions by the defense, which sought to keep the jury from seeing them, arguing that the 3D models were "complete unreliable" because they were created from a "flawed copy" of the original Border Patrol video.  

On Thursday, the jury watched several different parts of the model, which showed that Swartz was about 90 feet away when he fired his first salvo of shots. Swartz then moved to two different firing positions along the fence, emptying an entire magazine of .40-caliber hollow-points from his H&K P2000 before reloading, and firing three more shots. 

Swartz later returned to collect his magazine, before he went over to a telephone pole, vomited and began crying, according to fellow agents' testimony last week. 

The video shows that Rodriguez, along with two other people, hurled rocks toward the fence, and then fled as Swartz fired. 

In one video, Rodriguez — represented as a red rectangle — comes into the scene along the street before walking into the middle of  Calle Internacional, the street that runs parallel to the border. Then, the rectangle shifts, moves backwards and falls next to a curb along a stucco wall. 

As the rectangle falls and stays still, Swartz appears to fire two full volleys of gunfire, at one point reloading after he had already shot 13 rounds into Mexico. 

During a redirect, Jim Calle, one of Swartz's defense attorneys, asked if Tavernetti reviewed the video with another expert. 

"The only eyewitness, except for the defendant, is the video," said Calle. 

Calle noted that one camera, located to the west of the incident on a rise known as "Hamburger Hill"  was 2,500 feet from the scene, and that another camera was out of focus and zoomed, potentially creating a confounding image. 

Tavernetti agreed that the video showed "throwing motions" from all three figures in the street, including Rodriguez, but disagreed with Calle that the image showed a fourth person throwing rocks. 

"Do you see a fourth person there?" asked Calle.

"No," said Tavernetti. 

Calle also challenged the reconstruction because the feed from the west camera pole was switched to an infrared image by one of Border Patrol's camera operators during the incident. The image, which includes ghostly grays, and dark blacks to indicate heat, was severely unfocused and zoomed in as the camera panned along the street before centering on the body. 

Calle compared this image to a later image which shows Mexican officials examining Rodriguez's body, and noted that in the later video it was possible to discern hands, feet, and a head, while the earlier video shows an amorphous dark blob.

He also used an image of a Mexican police vehicle to argue that from frame-to-frame the infrared camera can induce a sense of motion. "Is it fair to say that this is one of the frames you used?" Calle asked.

During redirect, Mary Sue Feldmeier, one of the prosecutors, asked Tavernetti if he used the thermal image.

"You were't using the infrared image to make this and viola, merged these two together?" Instead, she confirmed that Tavernetti had gotten the thermal image later, and used it to confirm the placement of a 3D model representing Rodriguez from the other video, photographs, and the autopsy. 

Tavernetti was followed by Border Patrol Agent Kevin Hecht, the patrol agent in charge of the Nogales Station. 

Prosecutors asked Hecht about how Border Patrol agents report assaults against agents, and then had him read six reports written by Swartz, when he reported that he had been rocked, and had responded with "less-than-lethal" force, either by throwing a "stingball" — a grenade-like weapon that explodes and throws out rubber balls — or by firing a pepper-ball launcher — a paintball gun that fires balls made from a pepper-spray-like concoction. 

From Sept. 12, 2011 to July 9, 2012, Swartz responded to "rockings" by using these weapons, including one incident on Dec. 30, 2011, when the agent faced four to five people wearing ski masks in the Morley Tunnel, a drainage passage in Nogales drug smugglers often try to exploit. 

According to Swartz's own report, one of the men threw a bottle at him and he responded by throwing a stingball grenade at the group, and then fired pepperballs at them. 

Months later, on April 25, 2012, around 10 p.m., as he attempted to arrest a man on the fence people threw "numerous rocks" towards Swartz and a fellow agent. Swartz again responded with a stingball grenade. 

Feldmeier noted that in many of these incidents Swartz was the only agent, an idea that made Sean Chapman, the other defense lawyer, bristle. 

"The government seems to imply that because there are no witnesses, that maybe Lonnie Swartz is lying," Chapman said. "Isn't Border Patrol different in that agents frequently act alone?" 

"In some situations, yes," Hecht said. 

"There's nothing unusual about there not being any witnesses, that's the nature of the beast, and that's what makes it dangerous?" Chapman asked. 

"It can be, yes," Hecht said. 

"Rocks are potentially deadly weapons?" Chapman asked. "Potentially," replied Hecht. 

"Aren't agents supposed to defend the border? And, stop narcotics from coming into the border?" Chapman asked. He also noted that Swartz was unusual in that he was trained to use the stingball grenades and the PLS launcher, "less-than-lethal" weapons that agents are not required to get certified to use. 

"You're not required to use it?," Chapman asked, focusing on the fact that Hecht was not trained or certified to use these weapons, nor the FN-303, a larger weapon designed to fire a projectile that breaks up on impact.

"If you want to, you can take classes and use it," the agent answered.

Chapman also showed the jury an image of a Border Patrol Chevy Tahoe outfitted with rock-proof screens over the windows. 

Feldmeier responded and asked where rockings occur most frequently, and Hecht agreed that agents can expect to be rocked where the ground on the Mexican side is above the U.S. side of the border, where people can throw rocks from the "high ground." 

"Is Border Patrol a military organization?" she asked. 

Hecht said that the agency is a paramilitary organization in that some of its structures come from the military, but otherwise it's a law enforcement organization. 

Border Patrol isn't there to "defend a fence" or a "piece of metal" but rather the use of force is attached to "legitimate law enforcement reasons?" 

"Correct," said Hecht. 

The jury trial will continue on Monday, April 2, beginning at 9:30 a.m.