Swartz's attorneys want to move retrial to Phoenix court

Lawyers for Lonnie Swartz, the Border Patrol agent tried earlier this year in the killing of a Mexican teenager, have filed for a change of venue, asking to shift the retrial from Tucson to Phoenix.

Swartz was acquitted in April on a second-degree murder charge in the 2012 cross-border shooting death of 16-year-old Jose Antonio Elena Rodriguez, but the jury in the federal case deadlocked on lesser charges.

Prosecutors announced in May that they would retry Swartz on manslaughter charges.

In a motion filed Wednesday, defense attorney Sean Chapman wrote that Swartz "cannot be guaranteed a fair trial due to pervasive pretrial, trial and post-trial publicity in the division of the District Court that includes Nogales, Arizona, where the shooting in this case took place." 

A potential jury would draw its jurors from Southern Arizona, and these communities are served by several Tucson-based television stations, as well as several print and "virtual newspapers," Chapman wrote, listing the 15 news agencies that cover this part of the state, including TucsonSentinel.com 

"The circulation and broadcast areas for these stations and newspapers overlap and therefore ensure that coverage of an event reaches every location from where this Court draws potential jurors," Chapman wrote.

Prosecutors have not yet filed a response to the defense's motion to move the trail away from Tucson.

Swartz was indicted in 2015, and after multiple delays, the trial began March 20 in a federal courtroom in Tucson. 

After 16 days of trial, the jury deliberated until on April 23, when they announced they had acquitted Swartz of second-degree murder, but remained deadlocked on the lower charges of voluntary and involuntary manslaughter.

Elena Rodriguez died on the sidewalk on Calle Internacional on the night of Oct. 10, 2012, 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.

Swartz and other border agents responded to a report of drugs being smuggled across the fence. They were met with rocks being thrown up and over from the street below on the Mexican side.

Swartz fired 16 rounds in 34 seconds through the border fence, 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. 

Prosecutors argued that 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. 

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."

Following the jury's decision, federal prosecutors announced they would again pursue charges against Swartz, who remains on unpaid leave since his indictment. 

Swartz faces up 20 years in prison if he is convicted of voluntary manslaughter, or six years if he's convicted of involuntary manslaughter. 

Chapman filed Monday's 481-page motion with several exhibits, including articles from TucsonSentinel.com, the Arizona Daily Star and the Nogales International; transcripts from Southern Arizona television news stations; and an academic research paper to make his case.  

Chapman conceded that because of Internet access "potential jurors in Southern Arizona have a limitless ability to access and read news and opinions and see photos and graphics from online publications originating anywhere in the world." 

However, he argued that media coverage in Southern Arizona was "geographically pervasive and persistent before and during the trial," noting that there were 602 television segments that aired about the ongoing trial which lasted 16 days in March and early April. 

But, "television segments about the Swartz case in Phoenix appeared less than one-third as frequently than in Tucson and Southern Arizona," Chapman wrote. 

Chapman also complained that the "single most pervasive image of this case" was a photo of Elena Rodriguez that was given to media outlets by his family. 

"Although the jurors in the first trial of this matter were presented with a more recent photo of Elena Rodriguez, the image below has been published thousands of times across the country and hundreds of time in Southern Arizona and it inaccurately depicted Elena Rodriguez as being younger than he actually was at the time of the incident."

Chapman wrote that the photo was "extremely prejudicial" for Swartz because "its wide publication in Southern Arizona left anyone touched by the pervasive news coverage with the impression that Elena Rodriguez was much younger and, by appearance, less capable than a more recent photograph of him depicted." 

Chapman also argued that "pretrial coverage" also "frequently depicted Elena Rodriguez as a mere passerby in Mexico, "who was unarmed and who had nothing to do with the ongoing smuggling effort at the international border fence." 

Chapman then reiterated a claim he made during trial, trying to establish that the 16-year-old was "an active participant" in a smuggling effort and was "in the midst of assaulting federal and local law enforcement officials when he was shot." 

Following the jury's announcement that they could not reach a decision on the charges of voluntary and involuntary manslaughter, hundreds of people protested outside the courthouse, blocking East Congress Street and South Granada Avenue for hours, halting traffic and forcing Tucson police to redirect traffic. 

Chapman argued that the "eruption of protest" in both Tucson and Nogales "underscores and supports the granting of this motion." 

"A retrial of Swartz in Tucson, with jurors drawn from Southern Arizona locations, would be patently unfair," Chapman wrote. 

While the court was "able to seat a fair jury in the first instance, there now exists a substantial risk that potential jurors may purposefully hide their strong beliefs of this case solely so they can participate in the proceeding." 

"In short, the risks are greater than at any previous time in this case for jurors to be selected who have purposefully hidden their strong passions – and perhaps their belief of injustice in the first trial – from this Court. Thus, there is a substantial danger that Swartz will not be judged by 12 dispassionate, open-minded jurors," Chapman wrote. "In light of this risk, the appropriate remedy is for this matter to be moved to a location that has not been subjected to the intense media coverage or to the passionate days of protest that ensued following the first trial."