Swartz trial: Cross-border shooting case sent to jury after closing arguments

 Federal prosecutors argued that Lonnie Ray Swartz actions were "unreasonable and unnecessary," and the agent was a "sharpshooter" who methodically and deliberately shot and killed16-year-old Jose Antonio Elena Rodriguez, firing 16 rounds into Mexico, and hitting the boy 10 times in the back on an October night in 2012. 

The closing arguments brought to a close a 14-day trial that has spanned more than three weeks, as federal prosecutors and defense attorneys battled over whether Swartz, a Border Patrol agent, decided to kill the boy because he always responded to thrown rocks with force, and wanted to protect the "border fence against the indignity" of having rocks thrown, or rather, as defense lawyers argued, the agent had to fire to protect himself and fellow agents and a Nogales police dog in a "dangerous, scary, deadly-force situation."

Part of a re-trial after a jury found him not guilty of murder earlier this year, Swartz now faces two charges: voluntary or involuntary manslaughter. Jurors were instructed that if they acquitted the agent, or could not reach a unanimous agreement on the charge of voluntary manslaughter, they could consider the lower charge of involuntary manslaughter. 

Voluntary manslaughter carries a maximum sentence of 20 years in prison, and involuntary manslaughter carries a maximum sentence of 6 years.

It is rare for prosecutors to bring charges against U.S. Border Patrol agents for using force, and the killing of Elena Rodriguez was one of several cross-border shootings that took place in just a few years. After two years of criticism, the agency sought to "remind" agents about the use of force, especially against people throwing rocks in a 2014 memo from Border Patrol Chief Michael Fisher. 

In the memo, Fisher noted that in a four year period, Border Patrol agents had been rocked nearly 1,500 times and that in 43 incidents agents used deadly force, killing 10 people, including Elena Rodriguez. 

Prosecution weighs in: 'Criminal mistake'

During her closing arguments Mary Sue Feldmeier said that Swartz, "exaggerated the danger" to himself and others, and is now attempting to "hide behind the shield" in an attempt to justify the shooting, and asked the jury to reject Swartz's self-defense argument. "He stands before you totally stripped of the badge, and will be judged by what he did that day," Feldmeier said. Most shootings are justified, she said, "but this one is not justified. Sometimes a law enforcement officer makes mistakes, but sometimes those mistakes are criminal." 

Swartz, along with Border Patrol Agents Shandon Wynecoop and Stephen Porter, had been assigned to the outgoing traffic lanes at the nearby Dennis DeConcini Port of Entry, one of two border crossings in Nogales, about 700 yards from the scene of the Oct. 10, 2012 incident. The three agents decided to leave their duty station, and run toward the fence, where two men were straddling the border barrier. As agents surrounded the men, three people in Mexico appear to throw rocks into the United States, and within seconds Swartz walked up to the fence with his gun drawn, and fired into Mexico.

Swartz fired 16 rounds in 34 seconds in three salvos, fatally shooting the 16-year-old 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.

Feldmeier said within a month after finishing with his training, Swartz used "less-lethal" munitions — often either a Stingball, a grenade that explodes and throws out rubber pellets, or a Pepperball launching system, a paintball gun that shoots plastic balls full of pepper-spray — when someone hit threw a rock at the fence. "He decided that it was one of his missions to protect the border," she said. And, that after months, he was like "a fighter who hears the bell and comes out punching." 

The timing of the shooting showed a "thoughtful and deliberate sequence of events in 34 seconds." She counted the time it took for him to walk toward the fence from the back of a Nogales Police Department SUV, noting that it took 8 seconds for Swartz to "plod" to the fence. "One thousand one. One thousand two..." she counted. 

Then he fired, and it took another four seconds before he broke contact with the fence and moved to a new position, moving about 45 feet, or the "width of this courtroom," she said. "There's nothing split-second about this timing," Feldmeier said. 

There he fired 10 rounds, emptying his magazine of .40-caliber rounds after he "perceived a second shooter." "But why did all of his bullets hit the victim?" she asked. 

It took Swartz another 8 seconds to reload, and then he fired three more times, she said. "He kept shooting because he saw movement." 

Defense: Agent acted in danger

After a short break, Swartz's defense lawyer delivered his own closing arguments, and asked jurors to treat the agent fairly, "you have to put yourself in that position," he said. Chapman said that Swartz acted in a "split-second in a tense, uncertain and rapidly evolving" situation. 

Chapman began by stating that while this was a normal operation to apprehend drug smugglers, "does that make it any less dangerous." Chapman said that the area where Swartz fired his weapon was notorious for drug smuggling and reminded the jury of the 12 tunnels found beneath the city in the last decade. 

Federal prosecutors, he said were "cavalier" about the danger to Border Patrol agents, and are "living in an alternate universe and they want you to join them," he said. Agents have to face dangers, Chapman said, noting that one of the two men who were trying to flee into Mexico had a knife in his back pocket. 

He also argued that Swartz's use of "less-lethal weapons" showed he was a good agent. "Please explain how that shows he was a bad agent. In fact, it shows the opposite." 

Chapman worked to prove that Elena Rodriguez was involved with a smuggling operation, and brought up the statements made by an anonymous FBI source known only as "El Señor," as well as the statements of Amelia Ochoa, an older women who lives just a few hundred feet from the scene. He also reminded the jury that his own investigator believed that the boy's shoes and pants were stained from rust after he climbed the U.S.-Mexico border fence. 

It was "tragic" that Elena Rodriguez died, but "he was participating in a drug operation," Chapman said. 

Swartz acted because he and other agents, including Wynecoop, were in a "zone of danger" and that he decided to go to the fence and fire because he heard a rock hit the fence, Wynecoop yelled "oh shit I'm hit," and another agent yelled that the Nogales police dog had been hit, which meant that his handler, Johnny Zuniga was also in danger. "He doesn't to wait until someone gets hurt," Chapman said. "Rocks are potentially deadly weapons." 

Chapman also attacked prosecutor's arguments that Swartz's first fusillade hit the boy in the back, rather he argued that one of his first shots hit the boy and killed him and that he fell "like flipping a switch" echoing a statement made earlier by one of the Mexican pathologists. 

He said that Dr. Emma Lew's testimony that the wound to the head was one of the last shots fired was "reaching" and required a set of "convoluted assumptions." Swartz had made a mistake when he shot at Elena Rodriguez after his first shot had already killed him, the result of mistaken assumptions created by low-light and a confusing situation. 

And, he argued that the shot to the back was fatal, and that the boy would have died in seconds regardless of whether Swartz shot him again or not. The other subsequent wounds  

He also said that the prosecutors had failed to prove that Swartz lost his temper. "There's proof of his mental state, he cried and threw up because he took a human life. That doesn't sound like someone who want to shoot someone. I don't think so," Chapman said. 

Feldmeier returned and said that while Swartz reported memory loss for nearly 22 seconds, she thought this was "awfully convenient" for him, and that he was calm on the radio when he said, "10-7 on the mike side" saying that someone was dead in Mexico. 

She also blasted the defense's theory that since the first shot instantly killed the boy, the other subsequent shots didn't matter. "That's inhumane," she said, and said that the jury should "reject this repulsive theory." 

Jurors begin deliberation

Just before closing statements, U.S. District Judge Raner C. Collins re-read several stipulations, or agreements between prosecutors and the defense in this case, including the weapon used by Swartz to kill Elena Rodriguez, the meeting notes between Mexican and U.S. officials, and fingerprint analysis on the wrappings of two backpacks used to smuggle marijuana into the United States. 

Collins had to re-read the fingerprint report after it was brought to his attention that he misstated part of the document. 

While 16 people have served as the jury, including 12 jurors and four alternates, following the end of the case, the court's clerk tumbled a wooden box, and pulled out four pieces of paper, each with a juror's number. Those jurors were dismissed from deliberations. 

Collins thanked them for the service and said they could be called back. 

The jurors did not return a decision by Friday evening.

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 charge