Swartz trial: Prosecutors wrap up, defense case begins

A forensic pathologist for the defense disputed the findings of Dr. Emma Lew, who testified on Monday that Lonnie Swartz, the agent who faces manslaughter charges for shooting and killing a 16-year-old boy in Nogales, Sonora, more than six years ago, shot Jose Antonio Elena Rodriguez in the head while he on the ground and still alive. 

Dr. Cyril Wecht, a well-known forensic pathologist and medical legal consultant, was the first witness for the defense on Tuesday after prosecutors wrapped up their case with the testimony of Elena Rodriguez's aunt. 

While he said he thought that his colleague was a competent forensic pathologist, he called her opinions "conjectural and speculative" and said that it would be difficult to exactly ascertain the order of the shots. 

"This was a dynamic process," Wecht said. The boy was not a "fixed target," he said. "Try to imagine you're being shot at, you're scared to death, and you're moving," Wecht told the jury. 

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, firing from one position at the fence, and moving approximately 45 feet before he fired again, emptying his magazine. Swartz reloaded, moved again, and fired three more .40-caliber rounds, before he stopped. A video shows that Swartz then retrieved the empty magazine, and then walked off camera. 

The defense has argued that Swartz fired his weapon because Elena Rodriguez was throwing rocks, and in a split-second decision the agent choose to protect himself and others in a dynamic situation, complicated by low light. 

Prosecutors argued that Swartz shot at the boy because he was tired of people throwing rocks over the fence. 

On Monday, Leo Cruz-Mendez, a Border Patrol supervisor said that Swartz was kneeling by a telephone pole when he came up, and after he told the agent that "everything is going to be OK," Swartz turned and vomited.

Wecht, testifying for Swartz's defense Tuesday, highlighted his experience as a forensic pathologist, noting that he had conducted, or signed onto, nearly 20,000 autopsies, around 1,000 that involved gunshots, since he began working in 1957. 

He reviewed the original autopsy, conducted by two officials in Mexico, as well as grand jury testimony, FBI reporters, photos, video and reports from other experts to come to his conclusion that Swartz's first shot hit the boy in the head, slicing through the helix of his ear, and punching through his skull before it came to rest just beneath his scalp on the right side. 

Wecht said it was important to review the original autopsy, and criticized the fact that prosecutors had not given the same document to Lew. 

"It's the foundation of the case, if you don't do the original autopsy or a second autopsy, that's essential," Wecht said. 

 He also criticized the fact that from 2014 to 2016, the two officials changed their opinion about the order of the shots. In their original report, Dr. Javier Diaz Trejo and Dr. Absalon Madrigal Godinez said that they believed that shot to the head was the first shot, but later, after reviewing video from camera mounted to a pole along the fence that separates the U.S. and Mexico, they changed their opinion, and said that the first shot hit the boy in the back, shattering his vertebrae and sending him reeling to the ground, where he was hit nine more times. 

"There's no new scientific evidence that would lead to such a diametric change," Wecht said. 

Wecht also disputed the idea that boy was still alive and moving after the first shot. Rather the signs of movement, including a moment when Elena Rodriguez appears to move his left arm up before pulling it back so his left hand was curled up next to his face, were "the reflexive motions engineered by a dying brain." 

During Wecht's testimony, Sean Chapman, one of the defense attorneys, showed a new segment on "fencing reflex," which is when people throw up their hands in a guarded position when they're knocked out. This along with "agonal movement," is "not conscious or voluntary," Wecht said said. "You're in agony, and this is the process of dying, involuntary, uncontrolled, spasmodic movement," he said. 

During cross-examination and re-direct, federal prosecutor Wallace Kleindienst focused on a point that Wecht made about the shots. Even if the shot to the head was catastrophic, the boy could have lived 4 to 6 minutes. Wecht said that if EMTs had been immediately available to treat the boy, he might have made it to a neurosurgeon, but would likely have died, or at best, been permanently disabled. 

"Would the heart continue to beat?" Kleindienst asked. "Yes," said Wecht. "Death is not instantaneous," Wecht said, trying to explain that doctors have worked to discover the process of death to ensure they could harvest organs for transplant. 

"Four to six minutes?" "Yes," said Wecht. "Well, the shooting took place in 34 seconds," Kleindienst said. 

"He was technically alive, it was not salvageable, there was no chance of recoverability of any kind," said Wecht. "But, the brain had not been totally destroyed." 

Elena Rodriguez's aunt, Lourdes Elena Soto, testified that the boy lived about three blocks from the intersection of Calle Ingenieros and Calle International, where he died that night.

Elena Soto was staying with the family that night, and after Elena Rodriguez disappeared, the family went out to look for him, but couldn't find him. The next morning they learned what happened from a front-page photograph in the newspaper El Dario Sonora. 

Her brother went to one of two funeral homes in Nogales, Funeraria Noriega, and identified the boy while Elena Soto waited in the office. 

After Elena Soto spoke, Jose Antonio's mother, Araceli and his grandmother, Taide, left the courtroom and did not return. 

The defense plans to read a statement from "El Señor" an FBI informant, and statements made by Arelia Ochoa, an older woman who lives in the area where Elena Rodriguez died and reportedly told the FBI that she knew the 16-year-old and saw him that night in the United States.

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.