Judge rejects move to send BP agent's trial to Phoenix

Lonnie Swartz, the Border Patrol agent tried earlier this year in the killing of a Mexican teenager, will face a Tucson jury after a federal judge denied a defense motion to move the case to Phoenix.

During a hearing Monday, defense attorney Jim Calle asserted that news coverage of Swartz's trial, which ended in April after the agent was acquitted on a second-degree murder charge and the jury deadlocked on two lesser charges, meant that the jury pool was "tainted" in Tucson.  

In August, Calle filled a 481-page motion arguing that the agent "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," he 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," Calle wrote.

After a short hearing, U.S. District Judge Raner Collins ruled Monday that Swartz's trial should stay in Tucson calling the motion "a tad premature," but left open room to reconsider his motion if voir dire — the questioning of potential jurors — showed that the court could not seat an unbiased jury.

Prosecutors announced in May that they would retry Swartz on manslaughter charges, and the trial is set to begin October 23. 

During the hearing Calle focused on two major issues: the protest that formed outside of the district court in Downtown Tucson just after the first trial ended, and two opinion pieces that came out within weeks of the trial's end, including a piece written by the Bishop Edward J. Weisenburger, head of the Roman Catholic Diocese of Tucson, that was published by TucsonSentinel.com.

Calle said that reporting about the trial was "persistent, comprehensive" and "pervasive" throughout Southern Arizona, and noted the rapid emergence of a protest after the jury announced they could not reach a decision on two lesser charges after four days of deliberation.

Within a few hours after the jury's announcement, dozens of people blocked traffic at Congress Street and Granada in front of the court. 

"I've been around a long time and I've never seen that in Tucson," Calle said.

Swartz's defense attorney argued that Weisenburger's opinion piece tainted the jury because as the leader of the Catholic church in Southern Arizona, members of the church had been "subject to the same kind of opinion" from clergy members.

He also argued that a piece by Daily Star columnist Luis Carrasco published April 25 may have affected the jury pool because Carrasco called Swartz's defense, which argued that Elena Rodriguez was killed by the first shot and was already dead when the agent fired nine more rounds into his body, "legal hairsplitting."

The "poison of bias" from both articles would make seating a jury pool difficult, Calle argued, and were "emblematic of a rising temperature" regarding the case. 

Collins asked Calle if the coverage was much different in Phoenix. Calle responded that according to an analysis of media coverage surrounding the end of the trial coverage in Phoenix was "one-half or one-third" as much as it was in Tucson.

Collins also asked if the issue of bias could be eliminated through jury selection. "Why can't we take care of this in voir dire?" he asked. "A lot of people will be excused. Perhaps we can get it done without changing a thing."

"The judge's question hits the nail on the head," said U.S. Attorney Wallace Kleindienst. Kleindienst added that the case had received "tremendous" coverage since Swartz was indicted by a grand jury in 2015 until March of this year when the trial began.

Kleindienst also argued that both Carrasco and Weisenburger's opinion were balanced in noting that agents were often in danger. As Weisenburger wrote, "We must keep in mind that customs and border control agents are oftentimes placed in situations of great danger. Too, there are times when their efforts have resulted in saving the lives of those in great peril. We rely upon their high degree of professionalism and integrity."

Kleindienst said that Swartz's lawyers had not met their burden to show that media coverage was "so inflammatory and corrupting" it was impossible to seat a jury. 

Calle responded that he was worried that some people might hide their bias to get on the jury.

"How can I guard against that?" asked Collins. 

Calle responded that if Collins rejected their motion to change the venue, he would ask the judge to allow Swartz's defense team to "monitor" the social media accounts of the jury. 

Collins asked Calle to submit a brief on his request, and told Calle that his motion to change the venue was "a tad premature." He denied the motion, but said that he would see how potential jurors viewed the case. 

Collins also considered a motion from Calle to redact the testimony of a Mexican forensic expert after prosecutors said they could not legally force him to come to court to testify for the defense. 

Jury trip to Nogales

Federal prosecutors also moved to change how the jury viewed the scene in Nogales. During the trial, jurors were driven to the area near the U.S.-Mexico fence where Swartz fired his weapon. 

U.S. Attorney Mary Sue Feldmeier said that the jury had a "unique" view of the scene because of several 3D scans presented as evidence, and said that the jury's trip to the border was "not the best use of court resources." 

Collins said that the trip was requested by both the defense team and federal prosecutors. "It wasn't the court's idea to stop the train and head on down to Nogales," the judge said. 

Feldmeier said that the trip was "not particularly useful," and asked if the court would consider keeping Border Patrol from parking agents within "one block" of the scene, adding that during the jury's last trip, the agency had parked a "rock-proof" truck, a Chevy Tahoe modified with green screens as armor against rocks thrown over the fence.

Calle called the jury's trip "tremendously constructive," and said that the court shouldn't "screw around" with the agency's normal deployment of agents.