Swartz trial: Boy mortally wounded but alive when BP agent shot him in head, says expert

Jose Antonio Elena Rodriguez was mortally wounded, but still alive and on the ground when he was fatally shot in the head by Border Patrol Agent Lonnie Swartz, said an expert in forensic pathology Monday. 

Dr. Emma Lew, a forensic pathologist and director of the office of the medical examiner for Miami-Dade County, Fla. described to the jury the wounds the 16-year-old boy suffered during an incident in Nogales nearly six years ago, including the first shot which likely hit Elena Rodriguez in the back, shattering five of his vertebrae before ripping through his lungs and aorta, the large artery that connects to the heart, and coming to rest just beneath the breastbone. The shot, which cracked the "building blocks" of his spine, likely paralyzed the boy's legs and he collapsed to the ground, smashing his hands and face into the street, Lew said in court. 

The case against Swartz — facing manslaughter charges in a re-trial after a jury found him not guilty of murder earlier this year — hangs on the timing and order of the shots. The defense has argued that Swartz's first shot, made during or just after the boy stopped throwing rocks, hit the boy in the head, killing him instantly and that all the subsequent shots were just the unfortunate result of a confusing, evolving situation in low light on the U.S.-Mexico border that night. 

The Swartz case is a rare prosecution of a Border Patrol agent, and the killing of Elena Rodriguez was one of several cross-border shootings that took place a short period. After two years of criticism, the agency sought to "remind" agents about the use of force, especially against people throwing rocks. 

Swartz fired 16 rounds in 34 seconds in three salvos on the night of Oct. 10, 2012, and according to Lew, the most grievous injury came at the end, when the fatal shot to the head would have "immediately incapacitated" Elena Rodriguez, causing him to drop to the ground. 

Lew testified for nearly three hours, saying that the evidence, including video from a Border Patrol thermal camera, injuries to the victim's arms, blood on his face, and the presence of blood in his lungs, points to a scenario in which Elena Rodriguez could lift himself up slightly and extend his left arm in an attempt to get up when the final shot came. While Swartz's first shot was catastrophic, Elena Rodriguez was still alive until the final shot, which sliced through the helix of his right ear and punching through the skull, lacerating his mid-brain, before coming to rest just beneath his scalp. 

With a cloth mannequin as a model for Rodriguez, Lew stood in front of the jury box and used metal knitting needles to show the trajectory of 10 bullets as they punched into his body. Lew traced the entrance and exit wounds to create a unified model of the shooting, illustrating how bullets hit the boy in the back and head, almost all moving upward, and how bullets that struck his back cut through and ended up embedded in his left arm. 

"Remember bullets travel in straight lines," she said. "They don't go in right angles, they don't take u-turns," she said as she outlined the trajectory of two bullets that ripped through the left side of the boy's back before traveling through his body to hit his left arm. 

A few jurors stood to get a better view as Lew used a string to show how the final shot came from up high and to the right, where Swartz was standing behind the "bollard" fence that separates the U.S. and Mexico.

Elena Rodriguez died face down on a sidewalk on on Calle Internacional on the Mexican side of the border, just four blocks from home, down a 14-foot embankment from where Swartz stood on the U.S. side of 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.

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.

Lew testified that Elena Rodriguez suffered several abrasions from falling forward, and that the bleeding from one cut on his face showed that at one point, he was looking straight down, which is different from the "terminal position" he was found in, where his head was turned to the left and resting on his right check. 

This also explains why his front tooth was knocked out, she argued. His head was raised, but when the final shot came, his head smashed into the concrete, breaking his right tooth. 

The defense has argued that Elena Rodriguez was killed in the first shot, and that he brought his hands up and then fell forward and the fact that he was "unable to break his fall" is a sign that the boy was already dead and he may have smashed into the wall before coming to rest on the sidewalk. 

However, Lew disputed that assertion, arguing that "it was possible, but not likely" and that the shot to his head would have likely caused him to "drop without potential movement." 

She also dismissed the idea that this shift in position came from "agonal movement," or small tremors or "twitches" that the body makes in the throes of death. Elena Rodriguez's arm moved in "deliberate voluntary movements," Lew said. And, she said that it "doesn't make sense" that the boy hit the wall near the spot where he died. "There's no evidence that he hit the wall," she said. 

Elena Rodriguez lived for a few seconds, maybe a couple of minutes, but he was likely still alive when Swartz walked to his second firing position, taking about eight seconds before he fired 10 more rounds, emptying the magazine of his H&K P2000 pistol. Swartz reloaded his weapon, moved to a new position, and fired three more rounds before he broke contact with the fence, according to video and a 3D model showed in court last week. 

Sean Chapman, a defense attorney for Swartz, challenged Lew's testimony by asking if she had reviewed the findings of two Mexican pathologists who conducted the autopsy on Elena Rodriguez right after the shooting and said that first shot hit the boy in the head, killing him instantly. 

Lew said that she hadn't entirely, but that was done to keep their opinions from influencing hers, though she also said that she interviewed one of them as part of her investigation. 

Chapman also focused on the failure of the Mexican officials to take photographs of probes that they used to follow the wound tracks. "It would have been helpful," said Lew. "But they did a good job with photographs and documentation that I was able to put the trajectories together." 

Chapman also criticized Lew's interpretation of the grainy infrared video from a Border Patrol camera mounted on a nearby pole. "I understand people don't see this, but I can see things in images," Lew said.

"You think you have a unique ability," Chapman said.

"No, others see it too," Lew said. 

Chapman asked if she had reviewed the testimony of the defense's own experts. "No, I just know what I see," said Lew. 

During redirect, Mary Sue Feldmeier, assistant U.S. Attorney, asked if Lew could make this opinion without the video. "Yes," said Lew, adding that the signs on the body, the presence of blood in his lungs, along with signs that the heart was still beating when he was hit repeatedly, all told her that Elena Rodriguez was still alive.

"So the video is just icing on the cake," Feldmeier asked. "Yes," said Lew. 

Expert testifies that deadly force should come as 'last resort' 

Lew's testimony was a one-two punch against the defense on Monday. 

Along with Lew, Alan Foraker, a former Border Patrol agent who taught and designed curriculum for a course that teaches agents when they can lawfully use their weapons, said that agents can only use force when "necessary" and as a last resort to stop a threat. 

Foraker was a firearms instructor in 2009 to 2012, and would have been teaching when Swartz came through the BP academy in 2010. 

Foraker worked on the the Judgement Pistol Shooting course at the Federal Law Enforcement Training Center in Artesia, N.M., where agents spend about 30 hours learning how and when to use their pistols. 

This includes a five-day course on their weapon, along with a 10-day practical police course that teaches agents when to shoot, how to take cover, and when they are legally allowed to discharge their weapon. At the end of this, the agents must successfully complete 10 virtual "shoot or no shoot" scenarios. 

"The course is designed to teach them how to use judgement before engaging in deadly force with a sidearm," Foraker said. They must "gather and discern" information to form a rational judgement to shoot, he said. 

Agents cannot shoot someone unless the target has the "means, intent and opportunity"—known in parlance as the "jeopardy triangle"—to cause "serious or grievous injury" to the agent or others, he said. 

While rocks can be dangerous, there's a difference between a rock the size of a baseball and the size of a marble, and the distance matters, Foraker said. A rock thrown from the street where Elena Rodriguez was standing would "slow down greatly as it gets over fence," and would be "carried to the ground by gravity," he said. 

Foraker also said that the agents had access to cover, noting that agents could have retreated away from the incoming rocks by moving to the north, or by ducking down behind the "ample cover" of three Border Patrol vehicles, or an SUV driven by a Nogales police officer that was also at the scene.

The last resort requires that "all other means of settling the situation have met with failure, and there's no other choice but to use deadly force," he said. 

Foraker also rejected the idea that Swartz could have fired to defend Tesco, the Nogales police dog. "A dog is a tool, not a person," he said.

Wallace Kleindienst, assistant U.S. Attorney, asked Foraker if someone lying prone on the ground, without a firearm, is a person who could cause harm to an agent. 

"It would be awfully hard for that person to attack or cause harm to that person." 

"Could you shoot him?" asked Kleindienst.

"The shooting would not be justified. Absolutely not. The shooting is not justifiable," Foraker said.

Foraker said that agents are not trained to "shoot to kill, but only to stop the threat" by aiming at the "center mass," which is often a person's torso. 

Chapman asked, "You don't shoot to kill, but the practical result means that a lot of people end up dying?" 

"Yes sir," said Foraker. 

Finally, Leo Cruz-Mendez, a Border Patrol supervisor, said he was working between the Dennis DeConcini and Mariposa ports of entry in Nogales, when he heard on the radio that shots had been fired and that someone was dead in Mexico. Cruz-Mendez said that at first, he didn't respond because gunshots were often common in Mexico at the time, but he decided to respond and headed toward the scene. When he arrived, he took charge, ordered one agent to secure the area, and found Swartz by a telephone pole, kneeling and aiming his pistol at the border wall. 

Cruz-Mendez said he took a "soft approach," and came to the agent, who was "scared" and "nervous" as if something "traumatic had happened." 

Cruz-Mendez said that he told Swartz that "everything is going to be okay," and Swartz turned his head and vomited. "You don't understand," Swartz told Cruz-Mendez, and said that the Nogales police dog, Tesco, had been hit by a rock. Cruz-Mendez took the agent's gun, swapping it for his own, and also collected an empty magazine. 

U.S. District Judge Raner C. Collins agreed Monday to suppress two pieces of evidence that prosecutors wanted to show to the jury. The first was text messages that Swartz exchanged with Border Patrol Agent Matthew Bowen from November 20, 2017 to March 22, 2018. 

The defense also moved to suppress marital records regarding Swartz and his ex-wife, including his divorce and remarriage.

Earlier this year, Swartz was tried for second-degree murder, but after four days of deliberation following a 16-day trial, 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 2015, Swartz was indicted 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.

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

Prosecutors are expected to wind up their case against Swartz on Tuesday, after which the defense will have the opportunity to call witnesses.