BP agent to be retried for manslaughter in killing of Mexican teen

Lonnie Swartz, the Border Patrol agent accused of unlawfully killing a Mexican teenager in 2012, will again face trial after federal prosecutors announced in court Friday that they will pursue voluntary and involuntary manslaughter charges. He was found not guilty of second-degree murder last month by federal jury.

Mary Sue Feldmeier announced during a 10-minute hearing that the government would again prosecute Swartz for killing16-year-old Jose Antonio Elena Rodriguez during a cross-border shooting in Nogales the night of Oct. 10, 2012.

A new trial is set to begin on Tuesday, October 23, and is expected to last as long as the previous trial, extending over about 16 days. 

If convicted of voluntary manslaughter, Swartz faces up to 20 years in prison, and a maximum of 6 years if he is convicted of involuntary manslaughter. 

"The government does not anticipate this trial will be any shorter," Feldmeier said. 

On April 23, Swartz was acquitted of second-degree murder by a jury, however, the jury deadlocked on the lower charges, failing to come to a decision after four days of deliberation. 

Swartz was not in the courtroom Friday, but was represented by defense attorneys Sean Chapman and Jim Calle. 

Feldmeier announced that the family, including Elena Rodriguez's grandmother, mother, brother and grandfather were in the courtroom, and said that the federal government wanted a new trial in the summer, or as soon as practical. 

Chapman said that he had "a bunch of trials" that were put on hold while the Swartz trial continued, and that he "could not realistically try this case before October." 

U.S. District Judge Raner C. Collins agreed, and aimed to begin the trial on October 23, so that the court "would have a shot at finishing before Thanksgiving," he said. 

Feldmeier demurred on speaking to reporters about the case in the hallway, but Chapman said that he wasn't surprised that the government was seeking to retry the case. 

"Typically in a homicide case, the government will seek to retry it," he said. 

Chapman also said that it was "dangerous to predict" what a jury is going to decide even after another jury found themselves deadlocked. "Each jury is unique," he said, noting that in a previous case against Border Patrol Agent Nicholas W. Corbett, the jury deadlocked 9-3 to find the agent guilty, and then during the retrial, a jury voted 11-1 to find him not guilty. 

Chapman said that Swartz has been supporting himself by working in construction, while he remains on leave without pay, and that the trial had been "stressful and financially devastating."  

The case represents one of the few times that a Border Patrol agent has faced trial for using deadly force in Arizona. 

In 2008, Corbett was tried twice in 2008 for second-degree murder stemming from the killing of Francisco Dominguez-Rivera, a 22-year-old Mexican man. Corbett arrested Dominguez-Rivera along with three others, and then shot him at close range.

However, a jury refused to convict the agent, and the charges were dismissed. 

In Swartz's case, federal prosecutors said that the border 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 prosecutor Wallace Kleindienst during closing arguments. 

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 16 days. 

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 legal shooting complicated by "bad perceptions." 

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. 

Chapman 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. 

During the trial, 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 month 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, testified in court 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.