Defense attacks evidence against BP agent as Swartz case draws to close

Over the last two days, Lonnie Swartz's defense team have attacked the prosecution's case with hammer and tongs, assembling a trio of experts to challenge major parts of the government's evidence against the Border Patrol agent. 

Prosecutors then called two rebuttal witnesses, setting the stage for Friday morning, when both sides will present their closing arguments at 9:40 a.m. 

The defense has been building their case since Tuesday, when Swartz testified in his own defense and said that he fired his weapon—a H&K P2000 semi-automatic pistol—to protect himself, along with other Border Patrol agents, and a Nogales police officer.  

Swartz faces faces manslaughter charges — part of a re-trial after a jury found him not guilty of murder earlier this year — for shooting and killing 16-year-old Jose Antonio Elena Rodriguez in Nogales more than six years ago. 

Swartz fired 16 rounds in 34 seconds in three salvos on the night of Oct. 10, 2012, fatally shooting the Mexican boy.

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.

"There was no question; they were rocking us and I stopped that threat," Swartz said in court.

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. 

Challenges to video evidence

On Wednesday, the defense installed large high-definition screens in front of the jury box, and had Grant Fredericks, a forensic video analyst, testify for nearly five hours about the essential problems with the video captured by two camera systems maintained by the U.S. Border Patrol along the "bollard" fence that separates the U.S. and Mexico. 

Fredericks testified that the original video was too small, and that a system of compressing the video files to make them smaller and easier to store meant that the video could not be trusted to show motion, and said that a 3D model presented by the prosecution earlier in the trial was inaccurate. 

The compressed files, combined with the vagaries of infrared video, and the fact that one camera was mounted on a pole nearly 2,400 feet from the scene, created the "illusion of motion," and that a sequence of video that appears to show the boy raise up his left arm before tucking it back near his face may be an artifact of a series of problems, Fredericks testified. 

"A picture is worth a thousand words, but the most dangerous idea is that what's in this video is what's really there," Fredericks said. 

In an often highly technical testimony, Fredericks outlined how the camera system created "compounding errors that can hide data," and repeatedly criticized how Border Patrol officials in the Nogales-area setup and maintained their video system. 

In one demonstration, Fredericks showed how the original video, about 352 by 240 pixels across, looked tiny on the two large 1900 by 1080 pixel monitors before blowing the image up and show how "a low pixel count and high compression" made the images unreliable. "In the small image, we think we can see more than we can see." 

Fredericks said that a 3D video created by James Tavernetti for the prosecution used "inappropriate interpolation" to create more pixel in the image and give a sense of image quality or resolution that wasn't there, and because of that Tavernetti's video may have placed people in positions that were inaccurate. "We can eyeball it, and make assumptions about what we're seeing, but as a forensic analyst, this just isn't enough." 

He called Tavernetti's 3D models "artistic work." "It is art and opinion lacking foundation," he said. 

He also criticized the testimony of Dr. Emma Lew, who said on November 5 that she could understand and interpret the grainy video. "I understand people don't see this, but I can see things in images," Lew said.

"It's very common for experts from another science to make this mistake, they just don't know what they don't know," Fredericks said 

During cross-examination, assistant U.S. Attorney Mary Sue Feldmeier challenged Fredericks on his expertise on the 3D modeling tool that Tavernetti used, and his complaint that Tavernetti tried to track the movement of Swartz, and other agents and officers in Arizona, and three figures moving along Calle Internacional in Sonora. 

"This isn't a whodunit, we all know that Lonnie Swartz pulled, the trigger," Feldmeier. "Or, is that a figment of our imagination? We can put two and two together and come up with a timeline of Agent Swartz moving along the fence, right?" 

"It just doesn't have the foundation," Fredericks said. "I would not rely on this wholly unreliable video sequence and its not fit for the government's purpose." 

Fredericks was followed by Eugene Liscio, a 3D forensic analyst, who testified on Wednesday afternoon, and further on Thursday morning, that it was possible that one of Swartz's first shots, fired when the boy appeared to "cock back" to throw another rock, actually hit the boy as he had turned and was running away parallel to the street. 

The shot sliced through the helix of the boy's ear, punched through his skull and burrowed through both hemispheres of his brain before it came to rest just beneath his scalp, killing him instantly. 

The case against Swartz 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. 

However, prosecutors have argued that Swartz's first shot hit the boy 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. 

Liscio showed the jury a model he made using the same data, including a 3D-laser scan of the scene, and measurements made by the Border Patrol's Critical Incident Team just after the shooting, to show a computer model of a man throwing a rock, and then ducking down and running with his back to the agent. Licio shows a possible trajectory, which shows the boy's head tilted to the right slightly, allowing Swartz to shoot and hit him from around 78 feet away. 

Liscio also created a model which showed the "zone of danger" that rocks presented to the six Border Patrol agents who were at the scene, along with two Nogales police officers and a police dog, based on seven rocks found at the scene by the Border Patrol's CIT

On Thursday, Feldmeier cross-examined him, and challenged his assumptions about the throwing distances based on a map that includes pins, placed by witnesses during the last trial of their approximate positions. "These are approximations," Licio said. He later said that he based the zones on the fact that the world record baseball throw is around 400 feet. 

Feldmeier asked if that was true for someone trying to heave a baseball up over a 37-foot apex, the height that a rock would need to achieve to get over the bollard fence. Liscio said that outfielders have to throw the ball up at a 45-degree angle.

"You're not saying that Jose Antonio was a world-record baseball thrower?" Feldmeier asked. "No," he responded. 

Feldmeier noted that Elena Rodriguez may have thrown close to the wall to make Liscio's model work, rather than in the street as the video appears to show, and she demonstrated the problems in throwing, smashing her elbow against an exhibit, and sending it clattering to the floor, to the surprised gasps of the gallery. 

Liscio, who said he "had played some ball himself" got off the stand, and demonstrated how he could throw a rock close to the wall, pantomiming hurling an object a few times. "I can do this all day," he said. 

"But you're not trying to throw that up 37 feet across a 50-foot wide street? You need a large movement to get that over the fence," she said. 

"There's so many possibilities, we can't make concrete assessments for what we can't see on the video," Liscio said, later admitting that it was possible that the trajectories could work if Elena Rodriguez was on the ground, and the first shot was to his back. 

Use of force questions 

Liscio was followed by Peter Hermansen, a former patrol agent in charge for BP's Casa Grande Station in Arizona, who spent several years in Washington D.C. rewriting the use-of-force manual for the newly created Department of Homeland Security from older "legacy" agencies. 

Hermansen said that during his time in Douglas and Nogales, he knew them as busy locations or "fun places to work" for agents, who liked the constant action and wanted to work. 

"Should agents retreat if they're rocked?" asked Sean Chapman, one of Swartz's lawyers. "We never cede territory," said Hermansen. 

"What would happen if agents retreated every time they were rocked," asked Chapman. "The assumption is that more rockings would occur," Hermansen said. 

Hermansen said that the use of force, including the choice of when to deploy "less-lethal" weaponry or deadly force was at the discretion of the agent, but that agents were trained to consider whether a person had the "means, opportunity, and intent" all three sides of the "jeopardy triangle" to do the agent harm. 

"We're trying to get agents to think," he said. "We want them to have an objectively reasonable response in a completely unreasonable situation," he said.

Hermansen also said that he nearly shot a man after he threw a rock at his partner. After the man threw his first rock, Hermansen said he drew his weapon and was "collapsing on the trigger" when the man turned and fled back into Mexico, illustrating how the triangle worked. 

Chapman focused on how Nogales, Son., was a warren of cartel activity, and Hermansen agreed, saying that when he worked at the agency's intelligence office, he would only share information with "vetted federal police from Mexico City" rather than local police. When he worked in Nogales, the city was notorious for narcotics trafficking. 

However, when Chapman focused on previous testimony from Alan Foraker, one of the men who designed the training program that Swartz attended before becoming a Border Patrol agent, the former agent shifted his stance and explained that deadly force was often a last resort because "morally, speaking as a former agent, I want deadly force to be my last resort, but officers may have to employ it as a first resort." 

While officers or agents are not required to match force with equal force, agents must consider other avenues and face an objective test from the standpoint of a reasonable officer, Hermansen said. 

The former agent also agreed that Swartz's use of "less-lethal weapons" in a half-dozen incidents was within department policy. 

On cross-examination, assistant U.S. Attorney Wallace Kleindienst asked if discretion meant that the use-of-force was "non-reviewable." 

"No," said Hermansen, adding that agents cannot use deadly force unless a person had the means, intent and opportunity to use force to cause "grievous" injury. "Not just a bump? Not just a scratch?" Kleindienst asked. "No," said Hermansen. 

"Because not all rockings are the same?" 

"Correct," said Hermansen. 

Kleindienst also asked if agents were trained to assess their situation, and if cover could be used to help an agent figure out if they needed to use force. "Absolutely," said Hermansen, adding that agents could use cover to give them protection and a "tactical pause" to make better decisions. 

An essential question is why Swartz walked from the cover of a NPD vehicle, and walked up to the fence, potentially exposing himself to danger and potentially driving his fear that he would be hit by a rock, even as other agents moved away from the fence and Nogales police officer Johnny Zuniga put his dog, Tesco, back into his car and took his own position behind his Ford SUV. 

"Are agents trained to eliminate the threat or eliminate the person?" 

"No agents are trained to stop the threat," said Hermansen.

"What if a person is on the ground, laying down?" 

"If one of those pieces of the jeopardy triangle is gone, then deadly force is not authorized," Hermansen said. 

Prosecution's rebuttal

After the lunch break Thursday, the defense announced they had completed their case, and prosecutors called two witnesses for rebuttal arguments, including Elena Rodriguez's grandmother, Taide Elena, and Dr. Phillip Trompetter, a police psychologist. 

Prosecutors tried to submit a third witness, Scott Patterson, who would testify to the rate of fire that Swartz's pistol was capable, but Judge Raner Collins rejected their arguments. 

He also stymied a motion to direct the jury's verdict, and said that video exhibits created by Fredericks could go back for review by the jury. 

Trompetter said that he has interviewed more than 300 to 500 police officers after critical incidents, and that he was troubled by Swartz's claims that after he fired his first salvo and moved to a second firing position everything became "fuzzy, gray and distorted." 

Trompetter said this was unusual because officers in shootings often "focus on the threat" and forget, or simply don't pay attention to, other elements around them, including fellow officers. Some may not remember firing their weapon, while others may not know what they said, or what their partners did, but this is because they're so focused on the "threat at hand" they exclude other details, he said. 

He said that a defense expert Laurence Miller had created the wrong kind of report and that the other psychologist failed to ask the right questions of Swartz's explanations. 

Despite tunnel vision, and memory problems, officers can articulate "what posed the deadly threat that made them want to use deadly force." 

Swartz said that he saw two rockers, and that both "cocked back" almost "in unison" to throw, and he fired. But, he said that when he moved to his second position, he "perceived a second rocker" and fired 10 more rounds. In a way, Trompetter said, the scene that night was almost three different shootings. 

He also said that it was unusual that Swartz threw up and cried, noting that in his years of practice that men were "often stoic at the scene of a shooting." 

Chapman challenged this point, and referred to a series of studies on police shootings, including one were agents and officers noted serious memory lapses after a shooting. However, Trompetter said that while officers could forget some details, that's because they were focused on the threat and nothing else. 

"I would expect more detail," said Trompetter, and said he would have asked Swartz, "What about that second shooter prompted you to deliver your next four to 13 rounds?" 

He also noted that most police shootings happen within a few yards, and that the distance of Swartz from Elena Rodriguez meant that the shooting was not the common "split-second shooting" that most officers deal with.

Feldmeier asked, "He had seven to eight seconds before pulling the trigger, is that split-second?" 

"I don't think so." 

Feldmeier asked how many shots the average officers could fire at a person up to 90 feet away, prompting Trompetter to say that the average "hit rate" for police officers was 25 to 62 percent. "The hit rate in this particular case is pretty high," he said. Of Swartz's 16 shots, 10 hit the boy, and there's evidence of lead in three holes just inches above where the boy died. 

As the prosecutor's case drew to its close, they brought Taide Elena to the stand. The boy's grandmother has attended every hearing, including more than a half-dozen hearings for a civil case brought by the family against the U.S. Border Patrol and Swartz. And, on Thursday, she told the jury that she had helped raised her grandson, visiting him nearly every day from the United States.

She also testified that Jose Antonio was left-handed, a major point of contention because Liscio's models show a right-handed thrower, tossing an object, and then turning to the left to run. Liscio said that he didn't believe it mattered, arguing that in either case, a person could still quickly turn, but prosecutors argued that this shows his model is flawed. 

"He was always, since he was a little boy. We would change the spoon to his right and he would put it in his left," she said. He would comb his hair and eat with his left hand. "It seemed like he only had one hand," she said. "He never used his right hand for anything," she said. 

She paused, and starred at an image of her grandson, and tears welled up.

Closing arguments

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.

Closing arguments in the retrial are scheduled for Friday.