Swartz trial: 3D model shows Elena Rodriguez ran 16 feet before collapsing on sidewalk
A 3D reconstruction created from photographs, videos, and laser scans showed that Jose Antonio Elena Rodriguez, the 16-year-old Mexican teenager shot and killed by a Border Patrol agent more than six years ago, fled more than 16 feet before he collapsed over a curb, and was then hit by two additional volleys of gunfire.
James Tavernetti, an expert in 3D animation, created a series of "demonstratives" for federal prosecutors as they pressed their case against Border Patrol Agent Lonnie Swartz who faces manslaughter charges for shooting and killing the teen on October 10, 2012.
Tavernetti was one of several experts and investigators who testified for prosecutors this week, as part of the federal government's case against the agent. His model is likely the most comprehensive vision of the complicated and evolving scene that began when two men attempted to smuggle marijuana into the United States and ended with the boy's slaying.
Tavernetti created the model using data from Border Patrol investigators, a laser scan of the scene, photographs, autopsy data, and video from two cameras mounted on poles along the U.S.-Mexico border.
The video shows that Swartz walked up to the fence, rested his weapon against the metal, and fired three rounds of .40-caliber hollow-points from his H&K P2000 pistol at Elena Rodriguez at range of 70 to 90 feet. Swartz then walked around 45 feet to a second position, and emptied his magazine into Mexico, firing ten more rounds. Swartz then dropped the empty magazine, reloaded and took up a third position, firing three more rounds.
Swartz fired 16 rounds in 34 seconds, hitting the boy in the back and head.
Elena Rodriguez died face down on a sidewalk on the Mexican side of the border, down an embankment from where Swartz stood on the U.S. side of the border fence.
The case hinges on whether Swartz's first volley killed the teenager outright, or his first volley seriously wounded the teen, shattering several vertebrae, and his second and third volleys were aimed at the teen while he was lying prone, but still alive.
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.
After the shooting, Swartz backed away from the fence and said "it was a good shoot," according to testimony from a fellow agent. He collected his magazine, and then went over to a telephone pole, where he began to sob and then vomited, fellow agents testified.
The defense has argued that Swartz fired in an attempt to defend himself and other agents from rocks thrown by Elena Rodriguez, however, prosecutors have said that Swartz was tired of being rocked and abandoned his training and fired on the boy without justification.
While Swartz stood behind the bollard fence and a waist-high concrete embankment, rocks thrown from the ground would have traveled 37.2 feet upwards, and nearly 104 feet north before they could come down around 23 feet and land on International Street where the agents were standing, according to Tavernetti's models.
Tavernetti's video shows three figures moving in the middle of Calle Internacional, the street that runs parallel to the U.S.-Mexico border in Nogales, Sonora. As Swartz comes up to the scene, one of the figures, identified as Elena Rodriguez makes three throwing motions.
Depending on the timing of Swartz's shots, he either fired just after the last throw, or during the throws, sending at least three rounds into Mexico. The figure, represented as a red rectangle in the video, bolts toward the wall of a building, a doctor's office at the time, and then collapses parallel to the street.
Swartz, represented as a purple cylinder moves to his second position, and the video shows the appearance of 10 shell-casings, their locations recorded after the incident by Gerardo Carranza, a member of the Border Patrol's Critical Incident Team, and FBI Agent Michelle Terwilliger.
During his testimony, Tavernetti described his process for nearly an hour, telling jurors that he used images, video and laser scans to build a precise model of the scene, but that because of the blurriness of the Border Patrol's video, he said there was an error rate of around 2 feet for the positions of Swartz and Elena Rodriguez. He also estimated when Swartz fired his weapon, an issue that the defense hung on during cross-examination when Jim Calle showed an earlier version of the video, one that shows Elena Rodriguez still throwing rocks when Swartz fired.
"You're guessing when he initially fired?" Calle asked. "Yes, I depicted this in the time frame, I don't know when he started firing."
"We don't know when he precisely pulled the trigger," said Tavernetti, who said that within one second of the final throw Swartz fired his weapon.
Calle questioned Tavernetti about his qualifications, asking if he was an expert in thermal imaging or a "3D forensic analyst."
"I'm unfamiliar with that term," said Tavernetti, who then added, "There's consulting and there's opinions I would give in court."
"Mr. Tavernetti, I haven't asked you any questions," said Calle.
Calle moved on, and pressed Tavernetti about the timing on the video and how much the 3D expert estimated in his demonstratives.
During redirect, Mary Sue Feldmeier asked why Tavernetti estimated the shots, and he explained that he couldn't account for when the agent first fired. If he fired at the first time he "punched" his hands through the fence, the timing would be different than if he fired a moment later.
"Should the jury watch the original video?" Feldmeier asked. "Absolutely," replied Tavernetti, who added that his model was based on data and was "accurate" because there was a lot of information.
The jury was also shown Swartz's P2000 pistol by firearms expert Lucien Haag, who testified that he found lead transfers in the wall just above Elena Rodriguez's body, and confirmed that the bullets fired from Swartz gun match the six rounds recovered from the boy's body.
During his testimony, Haag showed the weapon, and explained how the agent would have loaded the weapon with 13 rounds, including one chambered round, and 12 more in the magazine. As he spoke, Haag snapped the weapon open and the loud metallic clack made a few jurors jump.
The incident began when Cassandra Clarke, a member of the Arizona National Guard assigned to camera room at the Nogales Border Patrol station, spotted two men climbing the "bollard" fence. Clarke radioed to a Border Patrol agent sitting at a static position, known as an "X." The agent was told that the men were climbing over, and to wait. However, the agent reacted and moved his vehicle, and the two men "turned back south," Clarke said during her testimony Wednesday.
Clarke had access to two cameras that night, one mounted on a camera pole at "Hamburger Hill" a rise to the east of the Dennis DeConcini Port of Entry, and another one to the west near the scene where Swartz fired his weapon. Both camera poles included a television camera and an infrared camera, which rendered the scene in ghostly grays and blacks.
As she watched, two other men climbed the fence, and then rushed across International Street, and disappeared in the neighborhood. As Clarke began to direct agents to the spot, a Nogales Police officer joined in.
During his cross-examination, defense attorney Calle asked why Clarke remained calm throughout the incident, "Were you calm because this is part of the routine of this job?" he asked.
"That part of the reason," Clarke replied.
"Isn't this a routine strategy, where earlier people worked as a smuggling decoy," Calle asked. "They would do that all the time," replied Clark.
As the situation evolved, Clarke pans one camera around to direct agents, but the other camera remains in an static position until the end of the shooting, when Clarke pans down to view the body of Elena Rodriguez.
At the same time, Swartz and two other Border Patrol agents, Stephen Porter and Shandon Wynecoop, were working on outgoing traffic at the nearby DeConcini port about 700 yards away. Wynecoop, who also testified on Thursday, said that he spotted two men on the fence, and decided to help out, so he ran up the hill to the scene, with Swartz lagging behind.
Meanwhile, BP Agent Joshua Devowe, who was assigned to another spot further west, drove his F-250 truck to the scene, with Agents Corey Brown and Jeff Plooy. Brown had been posted to a spot near the west camera pole, while Plooy and Devowe drove up.
Devowe testified that he got out of his vehicle, and saw the two men trying to clamber back up the steel poles that make up the bollard fence. One man was struggling, and Devowe said he saw that the man had a knife in his pocket, so he brought out his taser "for safety" and trained the weapon on the man, pointing its laser sight at the knife so the other agents could spot it.
Devowe testified that the knife was a pocket knife, or fixed-bladed knife, but Wynecoop said it looked like a kitchen knife. Defense attorney Sean Chapman described the same weapon to the jury as a "8-inch double-edged fixed blade knife."
As Devowe watched the two men struggle to get on the top of the fence, a Nogales Police officer drove up and said that he would get his dog out from his own vehicle. Devowe, along with two other agents, began searching for drugs, eventually finding two "speed bundles" which were packages of marijuana wrapped up in tape, he said. Then he heard shots, Devowe testified.
Wynecoop said he came up to the scene, and decided to back off so that the Nogales Police officer could get his dog out. "I didn't want to be in the way," he said, and wanted to let the officer "do this thing." So, he backed up to a taxi that was parked at the curb, and that's when he heard rocks hitting the asphalt.
Investigators collected seven rocks, or concrete "rubble" they said didn't belong to the area. Jurors were able to heft the rocks that investigators said came from Mexico, which were wrapped in plastic evidence bags.
One rock rolled up to Wynecoop's boot, he said.
"Were you scared," asked Wallace Kleindienst, assistant U.S. Attorney, and one of the prosecutors.
"Yes, that escalated pretty fast," Wynecoop said. "Did it hurt?" asked Kleindienst.
"No," the agent said, adding that he backed away from the fence. As the rocks came in, Wynecoop said that the Nogales police dog, known as Tesco, reacted as if hit. "It tucked in his hind legs, like it was scared," Wynecoop said.
During cross-examination, Wynecoop said that one of the rocks was the "size of a child's baseball," and that he saw five or six come over the fence.
As the rocks came in, Swartz moved forward, passing Wynecoop, and then yelled to stop throwing rocks in English, Wynecoop testified. Devowe, however, said that he didn't hear Swartz yell out.
Agent Plooy said that he was assigned to a roving patrol between the two ports of entry when he decided to assist and drove down Target Range Road in his Chevy Tahoe before he parked behind Devowe and Brown. He told prosecutors that at one point he heard the sound of rocks "pinging" the fence, but never saw the rocks. He said, however, that he saw the Nogales police dog "wince." Plooy struggled at points, explaining that his memory of the events of that night were "fuzzy," but that after the shooting, he had asked Zuniga "how's your dog?"
Kleindienst asked if he drew his weapon before Swartz fired, and Plooy said no, and that as rocks came in he got into a "safe position" under a tree and decided to "sit there and wait out the storm." And, then he heard Swartz's first fusillade of shots.
After the first volley the rocks stopped, he said, and then he heard several more shots, but had trouble saying exactly how many because the "shots were so loud, you couldn't hear anything else," he said.
Then Swartz fired his weapon. Wynecoop said he rushed forward, focused on the two men still on the fence. "I was trying to hurry them down, it was one less thing to happen," he said. Then Wynecoop said he heard Swartz say "Shots fired" on the radio and that someone was down or dead on the "mike side," or Mexico.
Chapman asked Wynecoop if he was scared. "You guys are so calm and collected when talking about this, but getting rocked is really dangerous, true?"
Devowe said he was about 20 to 30 yards from Swartz, and watched the agent reload his weapon, and then heard several shots, a pause, and then "a couple more."
"Hearing gunfire will get your blood flowing a little bit," Devowe said. He said that he told Swartz to seek cover, to calm down and take a break, and "not say anything."
Swartz said, "Clean shoot," and walked toward Devowe with his gun in hand. Then it started to "sink in," and Swartz threw up, Devowe said.
Wynecoop said that Swartz was distraught, and sobbing. "It was dark, so I couldn't see if he was crying." Then Swartz threw up, he said.
On Friday, prosecutors had Zuniga testify, along with an expert in the legal issues surrounding the U.S.-Mexico border; Border Patrol Agent Kevin Hecht, the patrol agent in charge of the Nogales station; and Tom Bevel, an expert in blood spatter.
The case will continue on Monday at 9:30 a.m.