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Prosecutor says witness statements 'irrelevant' in BP murder trial

A federal prosecutor said the testimony of a witness, who said that a 16-year-old Mexican boy was involved in drug smuggling just before he was fatally shot by a U.S. Border Patrol agent, is "irrelevant" to determining if Lonnie Swartz is guilty of murder in the cross-border shooting.

The testimony is being sought by Swartz's lawyer to"prejudice the jury," prosecutors in the case said in court filings.

On May 12, Sean Chapman, the lawyer representing Swartz, asked a judge to allow the witness, whose identify was redacted in court documents, to submit testimony by video, arguing that the witness had health issues and was reluctant to testify in person. 

Prosecutor Wallace Kleindienst responded Friday with a sharp criticism, arguing that Chapman's motion should be denied because he had failed to meet the burden justifying the deposition and demanded that any statements from the witness be made in court. 

"The exceptional circumstance in this case is simply the witness’s generalized reluctance to appear for trial," wrote Kleindienst, an assistant U.S. attorney for Arizona. "There is nothing exceptional about that. Most witnesses do not want to testify in a criminal case, particularly in a case like this with media attention." 

"If such reluctance were the basis for excusal from in-court testimony, there would be insufficient witnesses available to try defendants," he wrote. 

"Testimony by the witness of these irrelevant, inflammatory facts seek only to prejudice the jury against the government," Kleindienst said. "If the witness is permitted to testify over the government’s objection of relevance, the jury should be allowed to evaluate the witness’s credibility in person, on cross-examination, and not on a videotape." 

Chapman wrote that the testimony was "highly relevant to the defense" because it describes Rodriguez's actions on the night of the shooting and shortly before it. 

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This includes an accusation that the boy was "clearly involved" in an attempt to smuggle drugs into the United States, and that Rodriguez and "other unknown individuals" threw rocks at Swartz and other agents during the incident. 

The prosecutor also attacked these statements, calling them "hearsay testimony." 

"What other people thought of the decedent is not relevant to the issues in this case," Kleindienst said. "What is relevant is whether [Swartz] perceived that [Rodriguez] posed an imminent threat of serious bodily injury or death to the defendant or his colleagues at the moment when the defendant shot and killed him." 

"What may have happened before then, unknown to the defendant, is of no consequence to the defendant’s knowledge and perception. The witness’s testimony is accordingly not material to the defense," Kleindienst said. 

In a heavily redacted submission to the court, Chapman wrote that the witness "indicated a great reluctance to testify in the matter" and despite a subpoena the witness had a valid medical reason to not appear, "even if ordered to do so." 

Kleindienst layed into this argument as well, saying that "vague, unsupported allegations of significant health problems" are not exceptional circumstances that would make a videotaped deposition necessary. 

"Even if there is any validity to these allegations, there are undoubtedly ways in which they can be addressed" allowing the witness to travel from Nogales to Tucson, he said. "This is not an uncommon situation involving trial witnesses." 

In a heavily redacted submission to the court, Chapman wrote that the unindentified witness said on the night of the shooting that he saw Rodriguez run by a house and head southbound toward the border fence. Later, the witness said that he saw two Border Patrol agents near the house and assumed the they were chasing Rodriguez.  

The witness, Chapman wrote, "had a premonition that something bad was going to happen" to Rodriguez. 

A short time later, the witness heard gunshots. 

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Just after the shooting, Border Patrol officials said that Swartz fired into Mexico in response to a hail of rocks aimed at agents and a Nogales police officer, who were attempting to stop a group of drug smugglers near the fence dividing the twin cities of Nogales, Arizona, and Nogales, Sonora. 

However, family contends that Rodriguez was walking on Calle Internacional to meet his brother Diego, who worked at a nearby Oxxo convenience store, when he was killed. 

The sidewalk were the boy died runs along Calle Internacional, a street that runs parallel to the U.S.-Mexico border fence, and sits nearly 25-feet below the bottom edge of the border fence, which rises another 20-feet. 

Rodriguez was hit nearly a dozen times, with most of the bullets striking the boy in the back. An autopsy by Mexican officials showed that the bullet holes were angled from the "back to the front" including an entry point "behind the auricle of the ear" and in the "posterior region" of the neck and back. 

In September 2015, a grand jury indicted Swartz for second-degree murder, writing that he "with malice aforethought, and while armed with a P2000 semi-automatic pistol, unlawfully kill J.A.E.R."

A month later, Swartz pleaded not guilty to the charges. 

The trial has been delayed six times since it was slated to begin in November 2015 due to range of issues, including arguments from Chapman that the federal government did not have the jurisdiction to pursue his client. 

The remaining issues will be decided following a hearing on June 19, and the trial is slated to begin October 12, just two days after the five-year anniversary of the boy's death. 

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Paul Ingram/TucsonSentinel.com

A photograph of Jose Antonio Elena Rodriguez during a vigil held for the boy in Nogales, Sonora, in April.

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