Swartz trial: Jury finds BP agent not guilty of 2nd-degree murder

A jury found Border Patrol Agent Lonnie Ray Swartz not guilty on Monday of second-degree murder in the 2012 cross-border shooting of a Mexican teenager in Nogales, Sonora.

The jury could not reach a decision regarding lesser charges, after resuming deliberations Monday morning after a federal judge on Friday pushed them to reach a decision.

Swartz was on trial for second-degree murder for the killing of 16-year-old Jose Antonio Elena Rodriguez during a cross-border shooting in Nogales the night of Oct. 10, 2012.

Twelve jurors deliberated over the course of four full days, and found Swartz not guilty of the main charge brought by prosecutors. They hung on other possible criminal convictions, after declaring themselves deadlocked in the case last Friday. That afternoon, U.S. District Judge Raner Collins gave the jury an "Allen charge," instructing them to work to come to a unanimous agreement. It was not immediately clear if Swartz will be retried on those other charges. There will be a status conference held by the judge on May 11, after which the government might bring new a renewed case.

Araceli Rodriguez, the mother of the boy who was shot to death, left the courtroom before the jury came in Monday. Other family members remained, and after the decision was read, his grandmother, Taide Elena, stood in the courtroom and sobbed for a moment.

No family members of Swartz were apparent in the courtroom Monday, as has been the case throughout the trial. Without making a statement, Swartz quickly left the courthouse with his lawyers after the jury's verdict was read.

Swartz's acquittal by the jury brings to a close 20 days of trial spanning four weeks, in which federal prosecutors and defense attorneys battled over whether Swartz, a Border Patrol agent, acted out of frustration and anger when he fired his weapon, or rather, as defense lawyers argued, the agent made a "split-second decision in a dynamic, high-pressure situation." 

If convicted, Swartz would have faced 20 years to life in prison.

Prosecutors argued that the agent "calmly and deliberately" walked up the fence and fired 16 rounds in 34 seconds, hitting Elena Rodriguez 10 times, including one shot that sliced through the helix of the boy's right ear, and punched through both lobes of his brain before coming to rest just beneath his scalp.

Swartz's first shot hit the teen in the back, shattering four of his vertebrae and creating shrapnel that sliced into his lungs and his aorta, the major artery from the heart. Elena Rodriguez tumbled forward, smashing his face and the backs of his hands on the concrete, but that he was still alive and "struggling" when Swartz fired 10 more rounds, killing him, said Wallace Kleindienst during closing arguments last Monday. 

Elena 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 and lasted for 20 days.

"It's disappointing, for the family, for the victim, and for the community, but it's not over yet," said prosecutor Wallace Kleindienst. Prosecutors will consider whether to bring the voluntary and involuntary manslaughter charges back, depending on information they get from the jury.

"It's too soon to tell, so we might all be back here again," he said.

Swartz's supporters cheered the jury's decision.

"We're very pleased so far, with the not-guilty verdict," said Art Del Cueto, president of the Tucson Sector chapter of the National Border Patrol Council. The union has sent hundreds of thousands of dollars defending Swartz, but Del Cueto said that even if the government decides to prosecute again, "We'll fight another day on that."

"People were committing a crime, and while they were committing a crime, they attacked a federal agent, and what did the federal agent do, he defend himself. And, he defended other agents," del Cueto said.

Defense lawyers had said that Swartz's first shot hit the boy in the head, and killed him, and that he continued to fire on Elena Rodriguez because he confused the boy with a second person throwing rocks. This was not murder, they argued, but a legally justified shooting complicated by "bad perceptions." 

The agent, who has been on unpaid leave since he was indicted in 2015, faced 20 years to life in prison if he is convicted of second-degree murder. However, jurors were instructed that if they could not reach a unanimous agreement, they could consider convicting Swartz of voluntary manslaughter, which carries a maximum of 20 years in prison, or involuntary manslaughter, which carries a maximum sentence of 6 years.

Kleindienst said that Swartz was "fed up with people throwing rocks at the fence."

"He was fed up and he was going to use force, no matter what happened. He was going to stop the threat, no matter what," Kleindienst said. 

But agents who are rocked "cannot shoot to kill," and must consider the circumstances before they fire their weapon, he argued. 

Sean Chapman, one of Swartz's defense attorneys, told jurors during closing arguments Monday to consider the facts of the case, and use their common sense to find the agent not guilty. 

Prosecutors had stitched together their case from the facts, but their evidence was "speculation" and didn't describe the "dynamic, fast, unpredictable" situation that was "recorded by unreliable evidence, including grainy video," he said. 

While the death of Elena Rodriguez was "sad," the shooting was justified, said Chapman. 

Swartz, he said was operating in a "dangerous, scary area" and that agents regularly faced rocks thrown over the fence large enough to severely injure or even kill an agent. 

Agents he said, "don't have to accept that risk" and do not have to wait until a "fist-sized" rock drops into their eye, or a baseball-sized rock falls and fractures their skull. 

Last week, Swartz testified that he fired his weapon and killed Elena Rodriguez because heard a rock strike the steel metal plate that caps the fence, and then fellow agent Shandon Wynecoop said that he'd been hit by a rock. This was followed by what Swartz called a "thud" and someone yelled that a Nogales, Ariz., police dog had been hit with a rock. 

Swartz said he "elected to defend myself, my partner, and those officers." 

A witness for the prosecution, Dr. Emma Lew argued in court last week that Swartz's first shot hit the boy in the back as he was ducking, shattering four of his vertebrae creating shrapnel that sliced into his lungs and his aorta, the large artery that connects to the heart. Lew argued that this first shot likely paralyzed the boy, and he collapsed to the ground, smashing his hands and face into the concrete and damaging his front teeth, she said in court.

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

Their own pathologist, Dr. Cyril Wecht, argued in court on Wednesday that Lew could not reliably ascertain which shot came first to a "reliable medical certainty" and argued that the shot to the boy's head could have come while he was running upright.