Swartz trial: BP agent faces new trial on manslaughter charges Tuesday

The retrial of Lonnie Swartz, the Border Patrol agent accused of unlawfully killing a Mexican teenager more than six years ago, will begin on Tuesday, Oct. 23 at the Evo A. DeConcini Courthouse in downtown Tucson.

Swartz faces federal voluntary and involuntary manslaughter charges stemming from the cross-border shooting of 16-year-old Jose Antonio Elena Rodriguez on October 10, 2012. 

In 2015, Swartz was indicted for second-degree murder after a grand jury found that the agent "with malice aforethought" fired his weapon through the fence that marks the U.S.-Mexico in Nogales, and killed the boy. 

During a 16-day trial that finally began last March, U.S. District Court Judge Raner C. Collins gave the jury the option to consider voluntary and involuntary manslaughter if they could not reach a verdict.  

After four days of deliberation, jurors announced on April 23 that while they would acquit the agent on the charge of second-degree murder, they remained deadlocked on the charges of voluntary or involuntary manslaughter. 

In May, federal prosecutors announced that they would pursue a new trial on the two lower charges. 

Collins will again preside over the agent's trial. 

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 had 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 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."

Swartz, who remains on unpaid leave since his indictment, faces up 20 years in prison if he is convicted of voluntary manslaughter, or six years if he's convicted of involuntary manslaughter. 

The case represents one of the few times that a Border Patrol agent has faced trial for using deadly force in Arizona. 

In 2008, Nicholas W. Corbett was tried twice in 2008 for second-degree murder stemming from the killing of Francisco Dominguez-Rivera, a 22-year-old Mexican man. Corbett arrested Dominguez-Rivera along with three others, and then shot him at close range.

However, a jury refused to convict the agent, and the charges were dismissed.