Video of teen killed by Border Patrol agent shows he was facedown on ground when shot
Video of teen killed by Border Patrol agent shows he was facedown on ground when shots fired
Rob O'Dell , The Republic | azcentral.com
Published 4:43 p.m. MT June 19, 2017 | Updated 2 minutes ago
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(Photo: Nick Oza/The Republic)
TUCSON — A 16-year-old Mexican teenager killed by a U.S. Border Patrol agent appeared to be on the ground as the agent fired 13 of the 16 shots through the border fence in Nogales, a partial video of the 2012 killing showed Monday.
Jose Antonio Elena Rodriguez appeared to be lying facedown on the ground and did not appear to be moving as Border Patrol Agent Lonnie Swartz fired two of the three volleys that hit Elena Rodriguez in the upper back, arms and head, a video reconstruction by federal prosecutors showed.
The portions of the video, along with the video reconstruction, were shown for the first time Monday in a U.S. District Court hearing in Tucson. Swartz has pleaded not guilty to a charge of second-degree murder in the teen's death.
Swartz's trial is scheduled to begin in October. Defense attorneys argue the judge should not permit the video to be shown at trial, but District Judge Raner C. Collins has not yet ruled.
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U.S.-Mexico border killing: Jose Antonio Elena Rodriguez, 16
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Hundreds of people came to attend the Mass held on Oct. 8, 2016, by Bishop José Leopoldo González González during an anniversary vigil for José Antonio Elena Rodríguez, who was shot and killed by the Border Patrol on Internacional Street in Nogales, Sonora, in 2012. Nick Oza/The Republic
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The video in question shows Swartz fired 16 times through the fence in three bursts:
- First, he went to the fence and fired three times from the U.S. side to the Mexican side where Elena Rodriguez was.
- Swartz then moved west along the fence and fired 10 shots through the slats in the fence.
- The agent reloaded, then fired three more times into Mexico.
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It was during the second and third volleys that Elena Rodriguez appeared to be lying on the ground next to a building, barely moving, according to the video shown in court.
A reconstruction of the shooting by expert witness James Tavernetti showed that he believed Elena Rodriguez could have been shot once in the back while standing up, but the remainder of the shots hit him in the head, back and arms while he was still on the ground.
Prosecutors also showed graphic photos of a deceased Elena Rodriguez taken during his autopsy.
The video viewed Monday was shot from two border cameras operated by the Border Patrol. One was was mounted on a pole near the scene of the shooting. The other was mounted about 2,500 feet away and east of the primary of port of entry in Nogales.
The video shown in court melded images from both cameras, and showed that two individuals were climbing back into Mexico from the U.S. Later, two individuals — perhaps the same two people — are seen making throwing motions like they were throwing rocks. Several rocks were found on the U.S. side, the video reconstruction showed.
https://www.gannett-cdn.com/-mm-/b4e...1-A38POVMU.jpgA cross marks the site near where Jose Antonio Elena-Rodriguez was shot to death by Border Patrol Agent Lonnie Swartz in 2012. (Photo: Nick Oza/ The Republic)
In the very grainy and dark video, which was shot at night, Elena Rodriguez can be seen walking up to the two individuals on Calle Internacional before Swartz starts shooting from the American side. The other two individuals run behind a building, while Elena Rodriguez is hit and goes down.
Elena Rodriguez's mother, Araceli Rodriguez, held her head down for much of the hearing, either looking at the floor or holding her head in her lap as prosecutors showed detailed three-dimensional images of the crimes scene. She left the courtroom with other family members as the video and pictures were shown.
http://www.azcentral.com/story/news/...rtz/408088001/
Video of Mexican 16-year-old killed by U.S. Border Patrol agent shows teen lying face
Video of Mexican 16-year-old killed by U.S. Border Patrol agent shows teen lying face down while he was shot
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A poster in the likeness of Jose Antonio Elena Rodriguez hangs next to a makeshift memorial, where he was fatally shot in 2012 by U.S. Border Patrol near the Mexico- U.S border, in Nogales, Mexico. (VALERIA FERNANDEZ/AP)
BY
JESSICA SCHLADEBECK
NEW YORK DAILY NEWS
Tuesday, June 20, 2017, 9:48 AM
Video of the 2012 shooting death of a Mexican teenager killed by a U.S. Border Patrol agent showed the 16-year-old was lying face down on the ground when most of the shots were fired.
Clips of the fatal incident, which have not been made available to the public, were shown at the U.S. District Court for the first time while court officials argued whether they should be thrown out as evidence, the Arizona Republic reported.
Border patrol agent Lonnie Swartz has pleaded not guilty to a charge of second-degree murder in the death of Jose Antonio Elena Rodriguez. Swartz was not present at Monday’s hearing.
The patrol agent fired through a border fence while he was responding to a smuggling incident in downtown Nogales back in October 2012 around 11:30 p.m.
Grainy video of the shooting, captured by a pair of cameras operated by the border patrol, appeared to show Rodriguez lying on the ground while shots were fired from the U.S. side of the fence.
The video played in court also showed a pair of individuals getting stuck in an attempt to scale the border fence and later sees two people — possibly the same as the first pair — make throwing motions.
Swartz has said he was pushed into action when people began hurling rocks at him from the other side of the border. Seven rocks were found on the U.S. side of the fence, according to the Republic.
Sixteen shots were fired over the course of three separate bouts of gunfire, with Rodriguez lying facedown on the ground, barely moving, during the latter two volleys, according to the newspaper.
Swartz’s lawyers have argued the footage is unreliable and requested that it not be shown during trial. District Judge Raner C. Collins has not yet made a ruling on the matter.
A 3D reconstruction of the shooting by expert witness James Tavernetti suggested Rodriguez was likely shot once in the back while he was standing, while the remaining shots struck him while he was on the ground. In total, Rodriguez was shot 10 times.
The victim’s family, many of them present at the hearing Monday, have claimed Rodriguez was simply caught in the cross-fire while he was walking home while the defense has argued the teen was apart of the rock-trowing incident.
The hearing is scheduled to continue this week, with Swartz’s trial slated for October, the Arizona Republic reported.
Swartz, who is on leave from the border patrol, is also facing a civil suit filed by ACLU on behalf of the boy’s mother.
http://www.nydailynews.com/news/worl...icle-1.3262156
New twists in Border Patrol agent's murder trial
By Howard Fischer Capitol Media Services 2 hrs ago
PHOENIX -- Prosecutors in the murder case against a Border Patrol agent are now willing to concede that the teen he shot and killed through the border fence was throwing rocks -- and apparently was trying to assist drug smugglers.
In new filings in federal court, Assistant U.S. Attorney Wallace Kleindienst told Judge Raner Collins that the government "will not dispute'' at trial that Jose Antonio Elena Rodriguez "was one of three individuals who ... was throwing rocks over the fence.''
Potentially more significant, Kleindienst said prosecutors will not contest that the rock throwing by the 16-year-old was apparently done to help two people who were on top of the fence "who were trying to successfully drop down onto the Mexican side of the border after smuggling two bundles of marijuana into the United States.'' But he said the question of whether Elena Rodriguez was employed by a drug cartel "is simply unknown.''
The concessions by the government are significant because it means attorneys for Lonnie Swartz now will be able to present that information to a jury scheduled to hear the criminal trial set to begin in October.
Defense attorney Sean Chapman, in his own legal filings, said that information will help jurors understand the situation when Swartz admittedly fired through the fence, hitting Elena Rodriguez, who was on the Mexican side of the border, in the back at least 10 times. And that, Chapman contends, will show that Swartz did not act "with malice aforethought,'' the legal standard to gain a conviction on charges of second-degree murder.
But Kleindienst is arguing that, rocks or no rocks, it does not affect the case he is preparing against Swartz.
"This is not a drug trafficking case,'' he wrote. "This is simply a case about whether Elena Rodriguez presented a threat of serious bodily injury or death (to Swartz) regardless of his motives.''
In some ways, the government is in no position to deny that there were rocks.
At a hearing earlier this month, prosecutors showed Collins a video which is a combination of actual security camera footage and incident reconstruction. They want his permission to show it at the trial because it provides some evidence that Swartz fired at least 13 times, including stopping to reload.
Chapman is arguing against its admission.
The government's concession about what the teen was doing shortly before he was killed comes amid another series of motions about what jurors can see and be told. That includes a bid by Chapman to have a witness tell jurors about drug smuggling, both overall and in the Nogales area.
The defense attorney said the practices of smugglers were known to Swartz and other agents who work the area. More to the point, Chapman said that shows that Swartz knew this was an "extremely dangerous'' area of the border.
"Drug smugglers tend to be more desperate, more dangerous, and more frequently attempt to assault agents to avoid apprehension,'' the attorney said. "They are most likely to throw rocks and carry weapons.''
In fact, Chapman said, prosecutors have disclosed that one of the smugglers on top of the fence when the shooting occurred was seen to have a long double-edged knife in his back pocket.
Chapman also wants to show jurors various Border Patrol training videos which he said are shown to agents "to emphasize to agents how dangerous rocks can be.''
"The jury is not only going to need to understand what occurred in this case but why Agent Swartz reacted as he did, in order to assess Agent Swartz's state of mind,'' the defense attorney told the judge in his legal filings. "To do that, the jury must be able to understand not only the nature and circumstances of what occurred that night, but also the nature and circumstances of drug smuggling in this area as Agent Swartz understood them to be.''
All this is relevant, Chapman said, to that question of whether Swartz acted "with malice aforethought,'' a key element in determining whether the agent can be found guilty of murder.
Kleindienst, for his part, agreed that jurors have to decide if Swartz's actions "were reasonable and necessary under the circumstances.'' And he conceded that the agent's state of mind is relevant, including whether the rocks constituted a "threat of imminent serious bodily injury or death.''
But the prosecutor said what Chapman wants to introduce is "evidence patently calculated to inflame the jury.''
The same is true, Kleindienst said, about what the victim was doing at the time of the shooting.
"This is simply a case about whether Elena Rodriguez presented a threat of serious bodily injury or death by throwing rocks into the United States regardless of his motives,'' the prosecutor wrote.
He said Swartz is free to testify that, based on his prior knowledge about the dangers of rock throwing along the fence, that he acted in the manner that he did. But Kleindienst said the videos Chapman wants to show jurors "do not add any more relevance to that testimony and are, to the contrary, unduly prejudicial to the government's case.''
In a statement last month, attorney Luis Fernando Parra who represents the victim's family told Capitol Media Services that it denies allegations that the teen was involved in any kind of drug smuggling.
"This is an effort to deflect attention from an unlawful killing by the U.S. Border Patrol,'' the statement reads.
The family has filed a separate wrongful death civil case against Swartz. But that case remains on hold until the U.S. Supreme Court rules whether those who were not in the country when they were killed can file suit in federal courts here.
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