Prosecutors: Frustrated by rocking, BP agent deliberately shot & killed Mexican teen

Frustrated by rocks thrown over the fence, Border Patrol Agent Lonnie Swartz abandoned his training and fired 16 shots in 34 seconds through the border barrier that separates the U.S. and Mexico, hitting a 16-year-old boy 10 times in the head and back, federal prosecutors said during opening arguments Wednesday.

Swartz, facing voluntary and involuntary manslaughter charges for shooting and killing Jose Antonio Elena Rodriguez during a cross-border incident on October 10, 2012, was a “crack shot” who routinely scored 90 percent on proficiency tests, and therefore knew when he fired his gun where each bullet would go, said Wallace Kleindienst, assistant U.S. Attorney.

Kleindienst said that Elena Rodriguez might have been throwing rocks, or rubble, from his spot in Mexico, but that Swartz had the “high-ground” from behind the 22-foot-high steel “bollard” fence, which rest on an 14-foot high embankment. Shooting Elena Rodriguez was “like shooting fish in a barrel,” he said.

Earlier this year, Swartz was tried for second-degree murder, but 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. 

On Wednesday, 16 jurors, including 12 jurors and four alternates, heard opening arguments from both prosecutors and the defense.

Kleindienst spoke for just 26 minutes, telling jurors that Swartz was assigned to outbound operations at the Dennis DeConcini Port of Entry, several hundreds yards away, when he decided to leave his post and get involved in an attempt to stop two men who were involved in drug smuggling and found themselves trapped on the top of the 20-foot-high steel “bollard” fence that separates Nogales, Ariz., from Nogales, Sonora.

As Swartz lagged behind two other agents, he “inexplicably” had unholstered his weapon, and shot at a “defenseless person,” and he kept firing because he saw movement, stopping only when there “was no more reason to shoot at him,” Kleindienst told the court.

After a morning recess, Swartz’s defense lawyer, Sean Chapman, said that while the boy’s death was “tragic,” Elena Rodriguez was killed because he “chose to participate in this violent game” along the border between drug smugglers and Border Patrol agents.

Swartz shot at the boy because he thought that he was firing at two different assailants, making a “split-second decision” to defend his fellow agents, and two Nogales Police officers, along with a Nogales police dog, the defense attorney said.

“Swartz was attacked by drug smugglers,” Chapman said, and Elena Rodriguez was “assisting in an effort to help two smugglers try to escape.”

This was the result of a “cartel operation” and Swartz had a duty to enforce the law, Chapman argued.

Voir dire drama 

Just before opening arguments, the other lawyer for Swartz, Jim Calle, asked for a mistrial, saying that a potential juror found a small photo of Elena Rodriguez and that, along with protests outside, may have affected the jury pool.

Mary Sue Feldmeier, assistant U.S. attorney with Kleindienst argued the case should go forward, saying there was "no shed of evidence" that such actions had affected the jury. 

Judge Raner Collins agreed, but warned that if anyone in the audience or outside the court "in any way" attempts to approach jurors or otherwise "does anything to impact this case, they're going to jail."