Thread: Federal grand jury indicts BP agent in fatal shooting (update)

Rob O'Dell, The Republic | azcentral.com 3:15 p.m. MST March 8, 2016

U.S. District Court Judge Raner C. Collins sets the trial date for Nov. 7, the day before Election Day

TUCSON— The murder trial for the Border Patrol agent who shot through the border fence and killed a Mexican teenager is now set for November, after being delayed three times since late 2015.

U.S. District Court Judge Raner C. Collins set the trial date for Nov. 7, the day before Election Day. The goal was to set a realistic date for both sides — allowing the Border Patrol agent's lawyer Sean Chapman time to prepare for the trial while also giving the government a set date to bring in witnesses from two countries.

Collins also declared that the trial would be treated as a complex case, which gives the defense more time to prepare for trial.

Border Patrol agent Lonnie Ray Swartz was charged last September with second-degree murder for killing 16-year-old Jose Antonio Elena Rodriguez by firing through the border fence into Mexico on Oct. 10, 2012. The latest delay means his trial will not begin until after the fourth anniversary of the teenager's death.

Elena Rodriguez's mother, Araceli Rodriguez, and her extended family attended Tuesday's hearing. The family let out an audible gasp when the November trial date was announced.

After the hearing, Rodriguez said in Spanish that, as a mother, she would like the trial to take place now. Still, she said she is happy there is a real date in November when the agent will be tried.

"I hope that the jury that is deciding the case has morals, is a jury made up of members who have children, is a jury that knows good from bad, that can distinguish the truth from lies," she said. "I hope that the jury leans towards justice. To choose justice."

Chapman said the defense needed extra time given that in the past three months, it has received more than 7,500 pages of disclosure from the government. In addition, Chapman has to interview the government's witnesses in both Mexico and the United States.

In February, the U.S. government disclosed it intended to present the testimony of eight expert witnesses at trial, including a firearms expert, a ballistics expert, three forensic medical examiners, two forensic chemical experts and a use-of-force expert, a motion from Chapman said.

Swartz emptied his .40-caliber pistol through the slats in the border fence into Mexico, hitting the teenager 10 times in the back and head, leaving him facedown in a pool of his own blood, according to court documents.

The Border Patrol said the boy was throwing rocks in conjunction with marijuana smugglers who were being chased after jumping the border fence into the United States. Witnesses, meanwhile, said he was just walking down the street.

Swartz is only the third agent to be indicted in a use-of-force death since 2005, an Arizona Republic database of use-of-force deaths shows. He is the first to be charged by the Justice Department. The other cases were brought by local prosecutors and the cases were either dismissed or ended in hung juries.

Chapman told the court that because of other trials and the large amount of time needed to prepare for Swartz's trial the earliest the trial could occur was in mid-November. He suggested a date in either January or February 2017 if the November date didn't work. He declined to comment after the hearing.

Assistant U.S. Attorney Wallace Kleindienst said he was amenable to the November date but didn't want the trial — which is expected to last at least a month — to drag into Christmastime. The two sides and the judge ultimately decided on Nov. 7, a day before Election Day.

James Lyall, an attorney for the American Civil Liberties Union, which is representing Elena Rodriguez's family in a separate civil case, said he thought the timing was interesting but he thought the trial date didn't have anything to do with the election, but rather the schedule of the attorneys involved in the case.

http://www.azcentral.com/story/news/...mber/81457338/

May 15, 2017

Attorney for agent facing murder charges says teen victim threw rocks, ran from U.S. agents.

by Michel Marizco, Fronteras Desk

The attorney for Border Patrol Agent Lonnie Swartz argued in federal court this week that the teenaged boy Swartz is accused of killing was actually a drug trafficker and was being pursued by federal law enforcement agents in Arizona that night.

Swartz’s attorney, Sean Chapman, is arguing that Swartz and other agents were trying to arrest a pair of drug smugglers who crossed into Arizona carrying large bundles of marijuana, dropped them, then tried to rush back to Mexico.

Chapman argues that his client came under a rock attack from Mexico during that escape attempt.

"Although the decedent has been portrayed as an innocent bystander to this operation, he clearly is involved," Chapman wrote.

Chapman said federal investigators questioned a Nogales, Arizona, resident in December 2016, who lived 50 yards from the border and knew the victim, Jose Antonio Elena Rodriguez, and had disassociated themselves from the boy. According to the defense attorney, the witness saw the boy run by his house toward the border fence and watched two Border Patrol agents chase him.

It is the first time Swartz’s lawyers have indicated they plan to argue that 16-year-old Elena Rodriguez was a drug trafficker.

Chapman told the judge: "The decedent was involved in a conspiracy to import drugs into the United States as reflected not only by his efforts to harm agents with rocks but also by his presence in the United States shortly before the shooting."

U.S. investigators have never indicated that Elena Rodriguez was in the U.S. or that he was one of those throwing rocks at Swartz that night when Border Patrol agents and a Nogales Police Department officer came under attack.

https://news.azpm.org/p/news-article...ug-trafficker/

Says it would taint jury in agent’s murder trial

May 30, 2017
By Howard Fischer

PHOENIX — A federal prosecutor is blasting efforts to have a defense witness testify that a teen shot through the border fence by a Border Patrol agent was involved in smuggling drugs.

In new court filings, Assistant U.S. Attorney Wallace Kleindienst said the information, even if true, is legally irrelevant to the question of whether Lonnie Swartz is guilty of second degree murder in the 2012 shooting death of Jose Antonio Elena Rodriguez. All that testimony would accomplish, the prosecutor said, is to taint the jury’s view of government’s case.

Attorney Sean Chapman, who represents Swartz, wants the testimony, saying the unnamed Nogales resident will say that the 16-year-old shooting victim was not only involved in smuggling drugs when he was allegedly throwing rocks at Swartz but in fact had been on the U.S. side of the border a few minutes earlier and had been chased by Border Patrol agents.

Kleindienst, in his legal papers, said told U.S. District Court Judge Raner Collins none of that matters in determining whether the Border Patrol agent, who has admitted to the shooting, is guilty of a crime.

“What is relevant is whether (Swartz) perceived that the decedent posed an imminent threat of serious bodily injury or death to the defendant or his colleagues at the moment when the defendant shot and killed him through the border fence as (Elena Rodriguez) stood on Calle Internactional in Nogales, Sonora,’’ the prosecutor said.

“What may have happened before then, unknown to the defendant, is of no consequence to the defendant’s knowledge and perception,’’ Kleindienst continued, with the only question being whether Swartz, as stated in the indictment, “with malice aforethought, and while armed with a P2000 semi automatic pistol, unlawfully killed Elena Rodriguez.’’

And Kleindienst said allowing the testimony creates other problems.

“Testimony by the witness of these irrelevant, inflammatory facts seek only to prejudice the jury against the government,’’ he told Collins.

Kleindienst said what Chapman wants is actually doubly damaging.

Chapman wants the witness to not have to actually appear at trial but instead testify ahead of time, out of the presence of the jury, with that preserved on videotape and shown to the jurors at trial. Kleindienst said if the witness is to be allowed to testify — something he will oppose when that question comes before the judge — it should be in person, in court, when the trial starts Oct. 12.

“If the witness is permitted to testify over the government’s objection of relevance, the jury should be allowed to evaluate the witness’s credibility in person, on cross-examination, and not on a videotape,’’ the prosecutor said.

Prosecutors aren’t the only ones reacting negatively to Chapman’s bid to have a jury hear what the witness has to say.

“The family categorically denies the allegations that our son, Jose Antonio, was involved in any kind of drug smuggling,’’ family members told Capitol Media Services through attorney Luis Fernando Parra. “This is an effort to deflect attention from an unlawful killing by the U.S. Border Patrol.’’

The basic facts of the second-degree murder case are not in dispute. Swartz shot Elena Rodriguez in 2012 through an opening in the border fence. An autopsy concluded 10 shots hit the teen in the back. But Swartz, on indefinite unpaid suspension, has contended he fired in self defense, saying the boy was throwing rocks across the border.

Chapman, in his own legal filings, told Collins that what the witness will say will provide jurors “a complete picture’’ of what happened that night.

It starts with his claim the witness knew Elena Rodriguez and had seen him in the neighborhood as he was growing up. And Chapman said this witness had disassociated itself from the victim “after he bean involved in drug smuggling at an early age.’’

On the night in question, Chapman said the witness saw Elena Rodriguez run by the house south toward the border fence, and later, two Border Patrol agents.

“The decedent (Elena Rodriguez) was involved in a conspiracy to import drugs into the United States as reflected not only by his efforts to harm agents with rocks, but also by his presence in the United States shortly before the shooting,’’ he wrote. And that, said Chapman, is relevant to his defense of Swartz.

Kleindienst does not see the issue that way. “Even supposing these facts are true, they have no bearing on this case,’’ he stated.

The prosecutor said Swartz is not claiming that he had any prior knowledge of Elena Rodriguez prior to the agent shooting and killing him that night, nor that he believed the teen was involved with smuggling.

Kleindienst told Collins that if he is going to allow that person to testify then it should be done in person, in front of the jury.

In his own legal papers, Chapman said the witness had been subpoenaed to testify when the trial had been set for June 19. But he said the witness “indicated a great reluctance to testify’’ even after being served and that a relative was “very strict’’ and “will not allow’’ the person to show up.

Kleindienst sniffed at that “generalized reluctance to appear for trial’’ as an excuse to allow the witness to testify on prerecorded video.

“Most witnesses do not want to testify in a criminal case, particularly in a case like this with media attention,’’ he told Collins.

“That is in reality what this motion is all about,’’ Kleindienst continued. “If such reluctance was the basis for excusal from in-court testimony, there would be insufficient witnesses available to try defendants.’’

And the prosecutor said the fact that the witness has a “strict’’ relative does not trump a legally issued subpoena to testify.

“Certainly, defendant does not intend to carve out a (ITALICS) strict relative (ROMAN) exception to the requirement that a lawfully subpoenaed witness must abide by court orders,’’ Kleindienst wrote.

He also dismissed what he called “vague, unsupported allegations of significant health problems of undefined type or duration’’ of the relative which preclude the witness from going to Tucson for the trial. Kleindienst said even if a video deposition is allowed, the witness would still have to go to Tucson for the taping, preferably in front of the judge.

“What is the difference?’’ the prosecutor asked.

Chapman is representing Swartz in a separate wrongful death civil case brought against the agent by the family.

But that case remains on hold while the U.S. Supreme Court, hearing a different case, decides whether federal courts can hear claims of someone who was on Mexican soil when shot and killed.

https://www.dcourier.com/news/2017/m...-fence-irrele/

The scheduled start of the trial of a U.S. Border Patrol agent charged with second-degree murder in the cross-border shooting of a Mexican teen is being delayed to accommodate the defense lawyer's work schedule.

Aug. 11, 2017, at 12:12 p.m.



TUCSON, Ariz. (AP) — The scheduled start of the trial of a U.S. Border Patrol agent charged with second-degree murder in the cross-border shooting of a Mexican teen is being delayed to accommodate the defense lawyer's work schedule.

U.S. District Raner C. Collins on Thursday granted a request to delay Agent Lonnie Swartz's trial to Oct. 24 from Oct. 12.

Swartz is accused of firing through the border fence from Nogales, Arizona, into Nogales, Sonora, Mexico, and striking 16-year-old Jose Antonio Elena Rodriguez about 10 times.

Swartz said Elena Rodriguez threw rocks at him, endangering his life. The boy's family has denied that, saying he was walking home after playing basketball with friends.

The rescheduling motion said defense lawyer Sean Chapman will be finishing a trial in another case shortly before Oct. 12.

https://www.usnews.com/news/best-sta...fatal-shooting

Mexican teen died with first shot, so the other 12 shots are irrelevant, he argues

September 13, 2017
By Howard Fischer, Capitol Media Services

PHOENIX — The attorney for the Border Patrol agent who shot and killed a Mexican teen is claiming federal prosecutors are guilty of “withholding and manipulating” critical evidence that could prevent his client from getting convicted.

In new court filings, Sean Chapman says a Mexican doctor who had performed an autopsy on Jose Antonio Elena Rodriguez told prosecutors in 2014 that the victim was killed by the first bullet that hit him in the head. Chapman said the other shots he admitted that Lonnie Swartz fired in the 2012 incident came later.

Chapman said, though, that information was provided to him just recently even as he is preparing for the Oct. 24 trial.

The attorney said the question of what order the bullets struck the teen is central to his contention that Swartz cannot be guilty of murder because he used only the force necessary to respond to rocks being thrown at him from across the border fence.

But to get the jury to believe that argument, Chapman said in his pleadings that he needs to show that the teen “was fatally injured with one of the very first shots while he was an active threat.” And that, he argued, makes any other shots — prosecutors said Swartz fired at least 13 times, including stopping to reload — legally irrelevant.

“Agent Swartz is not criminally liable for Elena Rodriguez’s death, even if he continued to fire at him after he was killed, and collapsed on the ground,” Chapman told U.S. District Court Judge Raner Collins.

Chapman said what Dr. Javier Diaz Trejo told a prosecutor in 2014 is important because it contradicts the government’s theory that the teen was first shot in the back, which paralyzed him and caused him to fall to the ground, at which point Swartz continued to fire until the teen was dead.

Chapman is doing more than complaining to Collins.

He said the government’s decision to withhold not only the prosecutor’s notes of her 2014 interview with the doctor but also details from the original 2012 autopsy report means that the U.S. Attorney’s Office for Arizona cannot prosecute Swartz. Chapman said that’s because he will be calling the prosecutor as a witness in an effort to undermine the case being presented by her colleagues.

Potentially more significant, Chapman wants Collins to preclude the government, having withheld this critical evidence plus some autopsy photos, from presenting any testimony to support its theory that the head shot that killed the teen was received while he was already on the ground, still alive.

These details are critical since even Chapman admits that his client killed the teen. And he said the evidence will show that Elena Rodriguez and others, standing in Mexico, were throwing rocks at Swartz and other agents.

That, he said, leaves two issues for the jury to decide.

One is whether Swartz acted in self defense. And the other is whether Elena Rodriguez was fatally shot while he was standing or after he collapsed to the ground.

Chapman said the government’s theory is that after the first volley of shots, the teen fell but was still alive and no longer a threat, yet Swartz kept firing at him.

“Under this theory, Agent Swartz acted without legal justification and with malice aforethought by continuing to shoot at Elena Rodriguez after he was incapacitated by the first set of shots and went to the ground,” Chapman told Collins.

But if it was the head shot that killed him instantly and caused him to fall, Chapman argues, the government’s case falls apart.

Chapman said prosecutors gave him a copy of an autopsy report, written in October 2012, earlier this year. That report does not address the sequence of shots.

But it turns out that one of the doctors was interviewed by a prosecutor in 2014. And Chapman said got the handwritten notes of that prosecutor of the interview “indicate a drastically different version of Dr. Diaz’s opinion than previously disclosed.”

“In 2014 Dr. Diaz believed unequivocally that Elena Rodriguez was standing when he suffered an initial shot to his head that instantly killed him and resulted in his fall to the ground,” Chapman wrote. “Without question, Dr. Diaz’s 2014 statements, two years after the autopsy and two years before his 2015 statements, support the defendant’s version of events in this case.”

Chapman told Collins that the prosecutor’s decision to interview a key witness without the case agent or a recording device is “something seasoned prosecutors would only do if they were trying to prevent the development of evidence harmful to the government’s case.”

The attorney also said it is now “no coincidence’’ that prosecutors told him two weeks ago they no longer intend to call Dr. Diaz as a witness, instead relying on the testimony of “a much more junior pathologist.”

Chapman said the late disclosure of the interview, along with the fact that the autopsy included some photos showing the evidence of the direction of bullets that hit the teen, undermines his attempt to defend Swartz. He told the judge he now needs to “scramble to confer with his experts, particularly his pathologist, regarding Dr. Diaz’s 2014 opinion and how it fits into the evolution of his opinion.”

There was no immediate response from federal prosecutors.

https://www.dcourier.com/news/2017/s...e-border-shoo/

Wow. Being framed by the Obama DOJ. This federal case should be dismissed. It's now proven to have been tainted by a corrupt US Attorney's Office. I despise police brutality, there are several cases that have made the news that truly sicken me. But this case, shooting at rock throwers, weapons that can kill or at least permanently damage a Border Patrol Officer, that is self-defense, every day of the week and twice on Sundays.

It's unfortunate that this young kid died in the altercation. But our Border Patrol didn't start it. This young person is involved in the drug running business, throwing rocks to try to prevent the arrest and capture of those sneaking drugs into our country, all felony trafficking violations of our laws. This young person decided to throw large rocks at our agents to hurt them. You don't throw rocks at someone with no intent to cause serious bodily injury.

Can Trump pardon this agent and let him out?

Barry Sotero did much worse by letting out terrorists, criminals and giving money to terrorist countries.

Yes he can.

This thug throwing rocks...how does the agent know if he also concealed a weapon and would have fired that at him?

I am glad Agent Lonnie Swartz did not get a bullet to the head...he was defending himself in a hostile situation.

No lawsuit money to this THUGS family either! Not one dime.

No border security or patrol on the side of Mexico. Why do we talk to Mexico or consider any trade with them when they refuse to secure their side of the border. I don't get it.

There would be consequences for every illegal alien that gets into the United States, for every encounter with our border patrol from criminals and drug dealers. Why are illegal aliens getting here by the thousands? Our side and the side of Mexico are failing.

President Trump should tell the corrupt government of Mexico to stop it or serious consequences. No more talk, threats, let's act.