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Swartz trial: Defense struggles with first witness after prosecution rests

A witness appeared to refute her own previous testimony Thursday as defense lawyers began to make their case for Lonnie Ray Swartz, the Border Patrol agent accused of murder in the shooting death of a Mexican teenager in 2012.

Prosecutors wrapped up their own case on Thursday against Swartz, on trial for second-degree murder for the killing of Jose Antonio Elena Rodriguez during a cross-border shooting in Nogales on Oct. 10, 2012.

Swartz fired 16 rounds in 34 seconds, emptying one magazine and firing three rounds from a second, hitting the boy in the head and back, including one shot that ripped through Rodriguez's right ear and penetrated his skull.

Rodriguez died on the sidewalk on Calle Internacional just four blocks from his home, and at the bottom of an 14-foot embankment, atop which Swartz stood in the U.S. behind the 22-foot-high border fence. The trial began March 20 in a federal courtroom in Tucson.

Prosecutors have stipulated that Rodriguez was throwing rocks over the fence during an incident when two Mexican men, alleged drug mules, were attempting to climb back over the border barrier while fleeing from U.S. law enforcement, but have argued that the final shots that killed the boy came well after he ceased to be a threat. That has led to questions about whether the shooting was "reasonable or necessary" — the legal standard for using deadly force, as an expert pointed out on Monday.

Defense attorneys have argued that one of Swartz's first shots instantly killed the boy, and that the remaining shots were from a scared agent, who believed he was engaging multiple threats when he emptied one magazine, reloaded his handgun, and fired another three rounds.

The witness called Thursday by the defense, a 60-year-old woman identified only as A.O., lives in Nogales, Ariz., with her 90-year-old husband and one of her children, and has a bedroom window that looks toward the border fence. She reportedly told investigators and defense attorneys previously that she saw the 16-year-old boy in the United States that night, just minutes or hours before he was killed.

A.O. had been the center of series of motions about her testimony. Sean Chapman, one of Swartz's defense lawyers, had argued that she should be allowed to testify in a videotaped deposition, but federal prosecutors demanded that she testify in person in Tucson.

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A.O. began Thursday by telling that Chapman that her neighbor, who lives next door in a little cul-de-sac, is careful with her money because she is alone and rarely leaves her porch light on, refuting statements she made earlier that her neighbor's porch-light was usually on, allowing her to see her front yard and the dirt driveway that lead to International Street, where Swartz later fired 16 rounds in three salvos down into Mexico.

"Did you know Jose Antonio Elena Rodriguez?" asked Chapman.

Translated from Spanish by a court interpreter, she said: "No, I've never met him."

Chapman went on and asked her if her grandson knew the boy because they had attended school together in Mexico. "I don't remember, but I'm surprised you have that information," she said, adding "I don't give out that information. That's a lie."

"You're aware that a shooting took place?" asked Chapman.

"The whole city knew about it, it was broadcast over radio," A.O said.

Chapman asked her if she remembered that two agents had been in her yard, and she claimed that two Border Patrol agents carrying "long guns" had been in her yard, and had made her dogs nervous, but that "a lot of people go by my house."

Chapman continued to struggle with his questions, reviewing statements that A.O. had made to Sarah Arrasmith, a special agent with Homeland Security's Inspector General, and a private investigator hired by Swartz's defense team. Finally, he asked, "Are you afraid?"

"Of what?" she replied.

During cross-examination, Wallace Kleindienst, assistant U.S. Attorney, reminded A.O. that she'd also been interviewed by an FBI agent several days after the shooting. She explained that she listened to the radio often and that local Spanish radio stations had spent several days talking bout the "person who passed" or Rodriguez. relies on contributions from our readers to support our reporting on Tucson's civic affairs. Donate to today!
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"They were broadcasting since the night, they woke me up and a lot of people," she said, adding that she heard the noise, and that people with "long guns" walked into her yard. She added that the radio station had "said what had happened in my backyard."

Chapman immediately brought up Arrasmith, the investigator for OIG, who has been sitting at the prosecution's table since the trial began with jury selection on March 20.

Arrasmith said that A.O. had told her that her neighbor's porch light was always on, including that evening, and that she saw two agents chasing someone past her house. A.O. told Arrasmith that she went to bed, and later heard the shots.

Kleindienst asked if any of the agents or police officers who were at the scene that night were carrying long guns, to which Arrasmith answered no.

Also introduced was the stipulated testimony of an FBI source, whose statement and interview was read into the record by defense attorney Jim Calle. The informant known only as "Señor" has worked as a source for the FBI and DEA for the last 8 years in Nogales, Sonora, and has been paid more than $220,000 for information.

In July 2016, he was interviewed by U.S. officials and said that he was about 10 minutes away by car when the "violence" took place. He got the scene and ran into two men, believed to be linked with drug smuggling, known only as "El Pato" and "Chapin."

According to Señor's read-in testimony, he found two people hiding and they said that a smuggling operation had "gone to hell" and that a Border Patrol agent had fired his weapon at them.

"The whole thing had gone to hell and the Migra shot at them," Calle read. "Whatever the Migra saw he shot at."

Señor told U.S. officials that Rodriguez had was a "participant" in the smuggling operation, and had "stayed back and insulted the agents" and thrown rocks.

According to a letter from Señor to FBI officials, El Pato and Chapin told him that Rodriguez was the last in line, and given rocks to throw.

The defense also called a private investigator to the stand. Randy Downer said that he had ascertained that brown stains on the boy's clothes, including a pair of gray Nikes and his jeans, were rust from bollard fence that separates the U.S. and Mexico.

Downer said that he used eBay to purchase the same "unique" tennis shoes, and then went to Nogales and rubbed one of the shoes against the metal, and rust transferred to it. This proved, he said, that the vinyl and imitation suede shoes had rubbed against the fence that night, and thus, Rodriguez could have been part of the smuggling attempt.

Downer also said that he interviewed A.O., and Chapman showed the jury pictures of her house in Nogales.

During Kleindienst's cross-examination, Downer admitted that the photographs, taken in 2017, might not reflect what the house looked like nearly five years earlier, and that vehicles or obstructions might have kept her from seeing much. He also asked about a vision test, in which Calle and Downer asked A.O. to read her neighbor's address.

"Couldn't she have memorized the number?" he asked.

Kleindienst also reminded Downer that during his testimony earlier in the case, Nogales police officer Quinardo Garcia told the court that he waited for backup before going down A.O.'s driveway because it was dark.

"That whole area is scary," said Downer. relies on contributions from our readers to support our reporting on Tucson's civic affairs. Donate to today!
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Kleindienst then laid into Downer's experiment with the shoes. "Are you a chemist?" he asked. "Did you submit the stains on the shoes for a chemical test?"

Downer replied that he hadn't, it was a "decision made by the lawyers."

"Did it occur to you to suggest have it tested?" Kleindienst asked. The government had submitted more than 13,000 pages of evidence to the defense, he said, and asked if there was any reason that Downer thought that the government would not give him the shoes for chemical testing.

"You spent a lot of time on this? And, yet you did all the things except for the one thing that would confirm to this jury that this stains are rust?" Kleindienst, adding that the stains could be dried blood.

"It looked like rust to me," Downer said.

Kleindienst added that the stains couldn't be dated, and asked if Downer through it was possible that the boy's shoes were covered by mud, or that the stains were from another time when the boy climbed the fence.

"He was close to his grandmother, and lived with an aunt," Kleindienst said. People climb the fence for all kinds of reasons, he said.

"It's a possibility," Downer said.

The defense followed up by calling Jeff Plooy, a Border Patrol agent who had testified for the prosecution on March 27, as a witness. Plooy returned for the defense, and was asked about the use of two "less-lethal" weapons used by the agency, the pepperball launcher and the FN-303, a weapon that fires plastic discs. Chapman reiterated a point he had made earlier during cross-examinations that not every agent was trained the use the "less-lethal" weapons and that the three agents who ran from the Dennis DeConcini Port of Entry that night, which included Swartz, were not allowed to carry the weapons while working there.

Swartz reported using such weapons a half-dozen times from Sept. 12, 2011 to July 9, 2012, according to testimony on March 29 by Border Patrol Agent Kevin Hecht, the patrol agent in charge of the Nogales Station.

Also called by the defense was Jamal Abou-Srour, a Border Patrol agent who was assigned to line watch on the opposite side of the DeConcini port that night. Abou-Srour said that he was ordered to the scene by a supervisor, and that the area was an area "commonly known for drug smuggling."

Chapman also asked if Abou-Srour often unholstered his gun when he tracked smugglers, Abou-Srour replied yes, because "drugs are associated with guns, and drugs are associated with guns" and that trainers at the Field Training Unit in Nogales had "recommended" that he unholster his weapon because of the risks in pursuing drug smugglers. relies on contributions from our readers to support our reporting on Tucson's civic affairs. Donate to today!
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Chapman also asked if he was trained that rocks were "deadly weapons" and Abou-Srour replied that it would be appropriate to use deadly force under some circumstances.

Kleindienst followed with cross-examination, asking Abou-Srour, "Can you use your gun with rockers?"

No, replied the agent, "every situation is different."

Kleindienst asked when it was appropriate to use deadly force, and the agent replied that when a subject showed means, intent and the ability to wound or kill an agent — mirroring statements made on Monday by Border Patrol firearms trainer Allen Foraker, who told the court that agents can only use force when "reasonable and necessary."

Chapman returned and reiterated a point he's made throughout the trial that agents have to make "split-second decisions" to fire their weapons.

Before the defense began to present the reasons the jury should find Swartz not guilty, prosecutors completed their case with Emma Lew, the director of the medical examiner in Miami-Dade County, Fla., who testified for the prosecution that Swartz's first shot likely hit the boy in the middle of his back as he was running, and that the bullet shattered four of his vertebrae, creating shrapnel that sliced into his lungs and aorta, the large artery that connects to the heart.

Lew argued that "physical and anatomical evidence" suggested that the boy was still alive when he was shot in the head by Swartz.

Defense attorney Chapman cross-examined Lew and asked if she was aware that Dr. Javier Diaz, one of the pathologists who conducted the autopsy of Rodriguez in 2012, had told investigators that the shot to the head was the first, and likely fatal. "That's fine, that his opinion as an expert," she said.

Lew told Chapman that while she had reviewed a great deal of material from prosecutors, including 3D models from James Tavernetti, this hadn't formed the basis of her opinion.

She also said that Rodriguez had been alive for at least two shots because of the way that the blood pooled on his shirt, and how a trickle of blood shifted position around his nose, indicating that the boy was alive and moving before the final shot came.

She also noted that one of his teeth had fallen out, indicating that his head was up when that shot came and then, with the "devastating destruction" to his brain, his head "dropped like a stone," knocking his tooth loose and causing a series of bruises and scraps along the midline of his chin.

She also said that a theory offered by the defense, that the boy was killed instantly by a shot to the head and that he fell into the wall and tumbled down as Chapman said, "like a sack of potatoes" was unlikely because the body would have fallen and landed differently.

Lew also said that "anatomical evidence" suggested that he reached his left arm up and then retraced it toward his chest, because a bullet went through his armpit and ended up embedded in his left arm.

This movement was deliberate, and not because of "agonal" or reflexive movements; rather they were complex voluntary movements, she said in response to a question from the jury.

Lew was followed by two Mexican journalists who came to the scene that night and took photographs of the body.

One photograph by Arturo Javier Garcia Lopez was published by the newspaper in Nogales, Son. — and that image was how Lourdes Elena, one of the boy's aunts, and the rest of the family discovered what had happened to Rodriguez.

After he didn't come home that night, the family began searching for him the next morning, and that's when Elena said she saw the newspaper photograph.

"We did know him when we saw him," she said in Spanish through a court interpreter.

The final piece of evidence prosecutors submitted was a portrait of Elena Rodriguez, taken three to four months before he was killed.

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

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Paul Ingram/

An altar for Jose Antonio Elena Rodriguez, a 16-year-old boy killed by a U.S. Border Patrol agent, during a vigil in October 2017.


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