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Judge seals videos in Border Patrol agent's murder trial
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Judge seals videos in Border Patrol agent's murder trial

Gov't admits to existence of 2 videos showing 2012 cross-border shooting

  • A procession marking the third anniversary of the Oct. 10, 2012, death of 16-year-old Jose Antonio Elena Rodriguez ends at the spot where the teenager died after being hit approximately 10 times by gunfire from a U.S. Border Patrol agent.
    Paul Ingram/TucsonSentinel.comA procession marking the third anniversary of the Oct. 10, 2012, death of 16-year-old Jose Antonio Elena Rodriguez ends at the spot where the teenager died after being hit approximately 10 times by gunfire from a U.S. Border Patrol agent.
  • The surveillance tower where cameras may have recorded video of the Oct. 10, 2012, cross-border shooting of a Mexican teenager.
    Paul Ingram/TucsonSentinel.comThe surveillance tower where cameras may have recorded video of the Oct. 10, 2012, cross-border shooting of a Mexican teenager.

Federal prosecutors asked for, and were granted, a protective order sealing evidence collected in the murder trial of a Border Patrol agent indicted for the 2012 cross-border shooting that killed a Mexican teenager in Nogales. 

As part of the request, lawyers representing the U.S. government confirmed that prosecutors have at least two videos of the incident, in which Border Patrol Agent Lonnie Swartz shot through the border fence and killed 16-year-old Jose Elena Rodriguez on Oct. 10, 2012.

Swartz was indicted in September by a grand jury, and charged with second-degree murder.

U.S. District Judge Raner C. Collins agreed to the protective order, which will bar Sean Chapman, the attorney representing Swartz, from disseminating materials from the criminal case to the family's lawyers who are handling a civil lawsuit. 

Chapman agreed to the protective order with the U.S. Attorney's office. 

The government argued that because Chapman is representing Swartz in both the civil and criminal cases, federal rules would require Chapman to hand over thousands of pages of documents, as well as two videos. This disclosure could prejudice potential jurors, the government argued. 

"Thus the government's criminal disclosure — the entirety of its case against Mr. Swartz — would likely enter the public domain and be subject to media dissemination in Tucson and around the country," wrote U.S. Attorney John Leonardo. "Public disclosure of this evidence moreover would substantially prejudice both the government's and the defendant's right to a fair and unbiased jury in the criminal trial." 

The case, Leonardo wrote was "explosive" and had attracted national media attention, and thus jurors would be exposed to facts, testimony, photographs and testimony relating to the trial. 

"Both parties in this case want a jury to decide the issue of guilt or innocence free of prior contamination by media stories and opinions based on pretrial disclosure of the evidence," Leonardo wrote. 

Several media outlets, including TucsonSentinel.com, have filed Freedom of Information Act requests and appeals with U.S. Customs and Border Protection and the FBI regarding the videos, which may have been captured by a surveillance tower that sits just behind the border fence in Nogales near the site of the shooting. 

However, the government has either refused to admit the existence of the videos, or has refused such requests outright. 

Collins also agreed to delay the trial until Jan. 20, 2016, after Chapman asked for more time to prepare for trial. 

An change in plea must be filed before Dec. 30, Collins said. 

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