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BP agent's lawyer pushes to bar expert witness in cross-border murder trial

Swartz attorney seeks to bar testimony that use of force was 'neither reasonable nor necessary'

In two new legal filings, the lawyer representing Lonnie Swartz, the Border Patrol agent accused of unlawfully shooting and killing 16-year-old Jose Antonio Elena Rodriguez in October 2012, argued that Swartz acted in self-defense because the boy was involved in drug smuggling. He also pushed to block a government expert from telling jurors that Swartz's use of force was "neither reasonable nor necessary." 

In a legal filling Wednesday, Swartz's lawyer Sean Chapman said that the court should "preclude the Government’s 'use of force' expert from giving his opinion on the ultimate legal issues in this case." 

Chapman also moved to keep the government from "eliciting 'use of force testimony from law enforcement agents who are not qualified as experts."

Swartz is facing trial for second-degree murder in the case. In October 2012, Rodriguez was killed when Swartz fired his gun through the border fence, hitting the teen nearly a dozen times, with most of the bullets striking the boy in the back. From the spot where Rodriguez died, on a sidewalk in Nogales, Sonora, the 20-foot high section of border fence sits on a rocky cliff that stands another 25 feet high above the street on the Mexican side.

In February 2015, the government sent a letter to Chapman outlining the opinions of Alan Foraker, a "use of force" expert who said that Swartz's discharge of his firearm was "contrary to the Border Patrol’s training and policies regarding use of deadly force. " 

According to Chapman, Foraker gave eight reasons for his opinion, arguing that while "agents are taught to eliminate the treat when using deadly force," Swartz's use of deadly force was "neither reasonable nor necessary" and the agent was "not legally justified in using deadly force."

Following 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. 

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." 

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

The agent, Foraker said, was not in jeopardy because Rodriguez "did not have the ability, the opportunity and the intent to inflict serious bodily injury or death upon Swartz or anyone else." 

From the spot where Rodriguez died, on a sidewalk in Nogales, Sonora, the 20-foot high section of border fence sits on a 25-foot cliff the abuts the north side of the street on the Mexican side.

Foraker also said that Swartz should have ascertained whether anyone on West International Street were in jeopardy when he fired his weapon, hitting the boy nearly a dozen times.

"His failure to do was not reasonable," Foraker wrote. 

Foraker also said that Swartz should have taken cover if rocks were thrown, and that Swartz's approach to the border fence was "neither reasonable nor necessary." 

Finally, Foraker said that Swartz was not justified in firing his weapon because a police dog was hit because "deadly force cannot be used to protect a police canine." 

During the incident, a Nogales Police Department dog was reportedly hit with a rock. 

Chapman told U.S. District Court Judge Raner Collins that his motion did not seek to preclude all use of force testimony, but "confine such testimony to the parameters of the Rules of Evidence." 

Foraker may "offer testimony generally as to policies, procedures and appropriate uses of force in light of those policies and procedures" but he may not "give an opinion on an ultimate issue of law," Chapman wrote. 

Chapman argued that other law enforcement witnesses involved in the incident may "testify to their observations, but they may not offer opinion as to whether Agent Swartz’s use of force complied with Border Patrol training or policy, nor may they opine as to the type of legal conclusion that is described above." 

"For all the foregoing reasons, this Court should enter an order precluding the Government from eliciting “use of force” testimony from law enforcement agents who are not qualified as experts to opine on such matters," Chapman wrote. 

The defense has previously argued that Swartz was justified in shooting and killing the boy because Rodriguez was "involved in a smuggling operation" and was in the United States just minutes earlier.

"Whether he personally transported drugs or acted as a scout is unclear—what is clear is that he was involved in this operation," Chapman argued. 

This evidence is relevant in that it provides the jury "with a complete picture of the events which occurred on that night." and justifies Swartz's "heightened concerns about this area" where the shooting took place, Chapman said. 

Prosecutor Wallace Kleindienst attacked this theory in a filing Tuesday. 

"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 second legal filing submitted Wednesday, Chapman again argued that a defense witness should be allowed to testify in a video recorded deposition because that person was unlikely to attend the trial. The witness's spouse will not allow them to testify and a criminal subpoena may not be enough to force this person to attend a court hearing, Chapman said. 

Instead, he asked the court to allow the witness to submit a deposition and then also be required to attend the trial, and should they refuse to appear, the deposition could be submitted instead. 

However, on Tuesday, federal prosecutors also rejected the proposal for a video deposition, arguing that not only were the witness's statements "irrelevant," but that "general reluctance" to appear was not enough. 

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

In a heavily redacted submission to the court, Chapman said that a witness, who lives in a "prime area" for smugglers to hide, said that on the night of the shooting 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. 

The witness's statements were "highly relevant to the theory of defense" because they corroborate with the testimony of other law enforcement officers 

Chapman said that the defense team examined the evidence and found "markings" on the boy's shoes and clothing that may have been iron residue left by climbing the 20-foot bollard fence. 

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"The inescapable conclusion from the evidence discussed above is that the decedent was on the American side of the border prior to the shooting, probably acting as a smuggler or a scout," said Chapman.  "This information is probative because it debunks the government’s theory that the decedent was innocently walking home (and not throwing rocks) at the time of the shooting."

"It also corroborates the defense theory that Swartz was acting in self-defense. It completes the story, and supports the theory of the defense," Chapman wrote. 

However, government witnesses have said that Rodriguez was not throwing rocks at Swartz and the other agents, and was not part of the effort to keep federal law enforcement agents from apprehending two men believed to be transporting marijuana into the United States. 

The 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. 

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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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