Agent not guilty in border death
Mexican teen was shot through fence
U.S. Border Patrol Agent Lonnie Swartz was found not guilty of second-degree murder in the shooting death of an unarmed Mexican teenager, who Swartz shot through the border fence in a 2012 incident.
The Tucson federal court jury was unable to reach a verdict Monday on lesser charges of voluntary and involuntary manslaughter in the shooting death of 16-year-old Jose An-
tonio Elena Rodriguez, leaving open the possibility for a re-trial.
“I’m very disappointed for the family and for the community,” Assistant U.S. Attorney Wallace Kleindienst said. “But it’s not over yet.”
U.S. District Judge Raner C. Collins set a status hearing for May 11 in the case. Kleindienst said that by then, he hoped to have more information about where the jury split, and that based on that he would make a decision on a retrial.
“It’s too soon to tell,” he added. After the verdict was announced, protesters blocked off an intersection in front of the courthouse, briefly bringing traffic to a standstill. Later Monday, protesters shut down the Interstate 10 on and off-ramps at Congress Street, according to the Arizona Department of Transportation.
An estimated 70 people were part of the protests.
Swartz’s attorney, Sean Chapman, declined to comment on the jury’s decision, saying that the case is still not over but that “it’s up to the government” what happens next.
After the judge released jurors following their verdict, they refused to comment.
Swartz remained stoic as Collins read the “not guilty” verdict.
Moments earlier, one of the prosecutors walked up to Elena Rodriguez’s mother and grandmother, spoke with them briefly, and squeezed their hands. Soon after, the mother walked out of the courtroom and remained outside.
She declined to answer questions from reporters after the verdict was announced. Elena Rodriguez’s grandmother walked out of the courtroom in tears. The two were present every day in the courtroom, walking out at times during graphic testimony.
Several Border Patrol agents showed support for Swartz during the trial as well, alternating in attendance. Among them was local union President Art Del Cueto.
“We’re very pleased so far with the ‘not guilty’ verdict,” he said. “I think justice was pretty much served.
“People were committing a crime, and while they were committing a crime, they attacked a federal agent. What did the federal agent do? He defended himself and he defended other agents.”
Advocacy groups expressed frustration after the verdict.
“We’re extremely disappointed for the family, we were hoping that there would be some measure of justice,” said Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, who is an attorney for the family in their civil case against Swartz.
He said the family was hopeful that the U.S. 9th Circuit Court of Appeals would rule that the family can sue Swartz in federal civil court.
“The family needs an avenue to obtain justice,” Gelernt said.
Officials with the Kino Border Initiative, which offers services to deported and northbound migrants in the twin cities of Nogales, said they would continue to advocate to reform Border Patrol’s policies to prevent more deaths.
“Today’s verdict demonstrates the persistent obstacles to accountability in Border Patrol that remain, particularly when it comes to use of force,” advocacy director Joanna Williams said in a statement.
“Despite today’s decision, we will continue to stand with the Elena Rodriguez family and all those who have fallen victim to Border Patrol abuse. We recommit to tirelessly fighting for policies and practices that could prevent future deaths.”
After reaching an impasse last week, Collins instructed the jury that if they could not agree to a verdict in the second-degree murder charge, then they were to consider lesser charges including voluntary and involuntary manslaughter.
Both the prosecution and the defense agreed Swartz fired at Elena Rodriguez 16 times through the bollards in the border fence in Nogales, Sonora, on Oct. 10, 2012.
The murder case hinged on when exactly Elena Rodriguez was killed. Swartz fired through the fence in three bursts: an initial three, 10 while Elena Rodriguez was face down on the ground, and three more after he reloaded to fire again at a prone Elena Rodriguez.
Kleindienst argued that Swartz committed second-degree murder by firing at Elena Rodriguez when he was no longer a threat to him and other agents because he was already on the lying on the ground struggling to survive.
Kleindienst said thermal video showed Elena Rodriguez was still moving his arm while he was on the ground and that Swartz executed him.
Chapman argued that Swartz was justified in using deadly force because Swartz, other agents and Nogales Police officers were under attack by rock throwers.
He said Swartz feared for his life because of the rocks and felt that he needed to protect his fellow officers. It doesn’t matter what the facts on the ground were, Chapman said, only the perception that Swartz had of the incident before the shooting.
Swartz took the stand and gave vivid detail of events before and after the shooting. But he said his memory of the shooting itself had been “wiped away.”