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Judge rejects motion to dismiss murder case against BP agent

Trial delayed again - until Oct. 24

The case against Border Patrol Agent Lonnie Swartz, accused of unlawfully killing a Mexican teenager during a 2012 cross-border shooting, will move forward after a federal judge rejected a motion from the defense arguing that the case should be dismissed.

In a short response filed on Monday, U.S. District Judge Raner Collins put to bed five outstanding motions submitted by both prosecutors and defense lawyers earlier this summer.

This included dealing with a motion to dismiss the case, the fate of testimony from a former Border Patrol agent about the structure of drug smuggling organizations in the Nogales area, as well as a series of videos the defense wanted to play in court that federal prosecutors argued were designed to "inflame the emotions" of the jury.

Collins also considered the testimony of a use of force expert, who planned to tell jurors that Swartz's use of deadly force was "neither reasonable nor necessary."

In his response, Collins rejected a claim that the case should be dismissed because the grand jury that indicted Swartz for second-degree murder in September 2015 did so after hearing testimony from a supervisory agent who repeated statements made by Swartz just minutes after the shooting.

As one of a trio of motions filed by Sean Chapman, the lawyer representing Swartz, in June he argued that "the use of Swartz’s compelled statements to obtain his indictment is prohibited by law and requires the dismissal of the indictment."

"Here, the Fifth Amendment was violated because the Government actually used Agent Swartz’s compelled statements to obtain an indictment against him," Chapman wrote.

As part of the agency's use of force policy, BP Supervisor Leo Cruz-Mendez interviewed Swartz just a few minutes after the shooting and asked him "8 questions" about his actions. These answers were then submitted in an oral report to supervisors. As part of the grand jury process, Cruz-Mendez repeated these statements to a grand jury.

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However, these statements were quashed by Collins who ruled on March 24 that Swartz was repeatedly led to believe that the answers he gave during an interview with Border Patrol officials would not be used to incriminate him in a criminal proceeding and his statements were "compelled, coerced and involuntary."

"Swartz believed his answers were mandatory and that he would be disciplined, and even removed from the agency, if he did not answer the supervisor's questions," Collins said. This violated Swartz's 5th Amendment guarantee that "a defendant’s compelled statements will not be used against him in a subsequent criminal proceeding," he wrote.

However, Collins rejected the argument that because the grand jury heard the statements and decided to indict Swartz, the case should be dismissed outright.

"The Court finds the use of the answers to the eight questions was harmless in the full context of the Grand Jury proceeding," Collins wrote, and said that a hearing on this particular point was "not required or necessary under the circumstances of this case."

Collins also decided to suppress videos and photographs submitted by the defense which show drug smugglers climbing over border fences, as well as two videos produced by Border Patrol, which show rocks thrown at agents and vehicles, as well as a pictures of rock-damaged Border Patrol vehicles, and wounded agents.

On June 12, federal prosecutors filed an objection to the videos arguing that they served to " inflame the emotions of the jury and confuse them into possibly believing that the area where the shooting occurred is a war zone, with agents under constant threat of great bodily harm" wrote Mary Sue Feldmeier, an assistant U.S. attorney.

"When instead, the focus should be on the specific strip of West International Street where the shooting occurred, and the fact that there are videos of the actual event that show the actual smugglers and throwers in this very case," Feldmeier wrote.

Feldmeier also moved to limit the testimony of a defense witness, arguing that retired BP Agent Peter Hermansen should be limited to discussing where the shooting occurred, and that other law enforcement agents should be limited to testifying about what they saw and heard that evening based on "their training and experience."

"They should not be permitted to recount 'war stories' of unrelated drug smuggling attempts or rockings," Feldmeier. " This type of testimony does not help the jury understand what the defendant perceived during the offense and will confuse the jury."

Collins agreed writing that while "some description of the area in question is appropriate," Hermansen could not speak about smuggling organizations that control the Nogales area.

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Hermansen can tell the jury about common practices in a smuggling operation, including testimony about runners, who carry drugs over the fence, as well as the use of "individuals to assist the runners to escape back to Mexico by creating a distraction or rocking the agents to stop them from apprehending the runners."

However, the videos "are either not relevant or are too inflammatory and are therefore not admissible," Collins wrote.

Finally, Collins limited the testimony of use of force Alan Foraker, who planned to testify that Swartz's discharge of his firearm was "contrary to the Border Patrol’s training and policies regarding use of deadly force."

Chapman had argued that the court should preclude Foraker from "giving his opinion on the ultimate legal issues in this case."

The government should also be kept from "eliciting 'use of force testimony from law enforcement agents who are not qualified as experts," Chapman said.

Collins agreed, saying that Foraker will "not be allowed to state opinions on the ultimate facts before the jury.

This puts to rest several of the nearly two dozen challenges submitted by Chapman since the original indictment was submitted by a grand jury in September 2015.

Additionally, the trial will be delayed for a seventh time, after prosecutors and defense lawyers agreed to kick the trial back from October 12 to October 24.

Swartz trial

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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.