Jurors begin deliberating in re-trial of Border Patrol agent in Nogales teen's killing
Whether Border Patrol agent Lonnie Swartz shot and killed 16-year-old Jose Antonio Elena Rodríguez because he was fed up, or to protect himself and fellow officers from rock throwers, is what a Tucson jury will have to decide.
Attorneys on both sides made their closing arguments to jurors Friday in Swartz's federal trial on a voluntary manslaughter charge.
An earlier federal jury in Tucson acquitted Swartz of second-degree murder in Elena Rodríguez's 2012 death, but couldn't agree on lesser charges. The prosecution decided to retry the case. Swartz is the first Border Patrol agent to be tried in a cross-border shooting.
"Unreasonable and unnecessary. Unreasonable and unnecessary," that's what the shooting was, Assistant U.S. District Attorney Mary Sue Feldmeier told jurors.
When Swartz fired through the border fence at Nogales, down into Mexico 16 times, hitting Elena Rodríguez 10 times in the back and head, it wasn't about defending human life, she said, it was about not giving in.
"There's no justification for what happened that night," Feldmeier said, saying use of deadly force should be a last resort.
From the Mexican side, there is a cliff about 14 feet tall with the bollard-style fence extending another 22 feet. To clear the fence with a rock, a person would have had to throw it at least 36 feet into the air, higher than a three-story building. Or, they would have to get the rocks through the 4-inch gaps between the bollards.
But the defense countered Swartz acted in self- defense in a dangerous area. "The government tried to downplay how dangerous it is to be a Border Patrol agent down by the border," defense attorney Sean Chapman told the jury. "They must be living in an alternate universe that they want you to join them. Don't do it. You were there, you know what it's like."
They jury visited the shooting site during the trial.
On Oct. 10, 2012, the night Swartz killed Elena Rodríguez, agents and local police officers responded to reports of a couple of drug smugglers jumping the fence, dropping off marijuana backpacks and running back south.
Swartz was among three Border Patrol agents who responded. Shortly after he and the others arrived, a group of people started to throw rocks at the officers so the two smugglers stranded on top of the fence could flee.
Almost immediately after, Border Patrol surveillance video shows Swartz leaving cover behind an SUV and approaching the fence with his weapon drawn. He is seen putting his hands through the four-inch gaps and shooting three times. He then moves right for another eight seconds, puts his gun through the slats and fires 10 more times; then reloads and shoots three more shots.
While law enforcement officers are asked to make split-second decisions in rapidly evolving and tense circumstances, this was not a split-second decision, Feldmeier said. "He didn't stop and assess the situation as he is trained," she said. "It was a thoughtful and deliberate sequence of events over 34 seconds."
None of the other agents or police officers shot across the border, she pointed out. Swartz exaggerated the threat, she said, to justify his actions.
Swartz said he heard a "ping" from a rock heating the fence, heard another agent say he had been hit (who testified he didn't remember saying it), and a thud of a rock hitting a police officer's canine before he responded.
And that's what Chapman told the jury they should consider when making their decision: what did Swartz perceive that night? "You have to put yourselves in his shoes."
He asked them to use a wrist watch while they deliberate and to have everyone be quiet for 30 seconds to get a feel for how long the shooting was. "This thing happened in half a minute."
Swartz didn't have to hide or seek cover, Chapman said. "He is allowed to use his experience and say 'this is a scary, deadly force situation'."
"Agents are told from first day that rocks are deadly weapons, potentially," he said. "We may not like that, but that's how they are trained."
Between 2010 and 2014 agents were rocked 1,713 times, he told the jury. Out of those they responded with deadly force 43 times, which resulted in 10 deaths.
Chapman used that number to show the frequency of the rockings. But Feldmeier divided the number of rockings per year to come up with .02 rockings per agent, if divided by 20,000 agents, or .04 rockings if divided by 10,000 agents.
Within Swartz's first year, she said, he was involved in seven rocking incidents to which he largely responded with the use of less-lethal force, such as pepper ball launchers.
This, she said, paints a picture of an agent looking for trouble akin to a fighter who as soon as he hears the bells, comes out punching. She said he acted like someone who had trained himself to immediately react to rockings by using some kind of force.
To Chapman though, the fact that he always used a less-lethal weapon before showed an agent who would have avoided deadly force that night if he had the option. But because he had been working at the nearby port of entry that night, he didn't have access to a less-lethal weapon.
Facts such as whether Elena Rodriguez died from the first shot or was alive when Swartz switched positions and continued to fire have been central to the case.
Chapman argued that Elena Rodríguez was killed within the first 10 seconds after Swartz started to shoot.
Full Article: https://www.google.com/amp/s/tucson.com/news/local/jurors-begin-deliberating-in-re-trial-of-border-patrol-agent/article_9c083fa4-1373-59e3-9293-4e75ca4c19fc.amp.html
Source: tucson.com
Attorneys on both sides made their closing arguments to jurors Friday in Swartz's federal trial on a voluntary manslaughter charge.
An earlier federal jury in Tucson acquitted Swartz of second-degree murder in Elena Rodríguez's 2012 death, but couldn't agree on lesser charges. The prosecution decided to retry the case. Swartz is the first Border Patrol agent to be tried in a cross-border shooting.
"Unreasonable and unnecessary. Unreasonable and unnecessary," that's what the shooting was, Assistant U.S. District Attorney Mary Sue Feldmeier told jurors.
When Swartz fired through the border fence at Nogales, down into Mexico 16 times, hitting Elena Rodríguez 10 times in the back and head, it wasn't about defending human life, she said, it was about not giving in.
"There's no justification for what happened that night," Feldmeier said, saying use of deadly force should be a last resort.
From the Mexican side, there is a cliff about 14 feet tall with the bollard-style fence extending another 22 feet. To clear the fence with a rock, a person would have had to throw it at least 36 feet into the air, higher than a three-story building. Or, they would have to get the rocks through the 4-inch gaps between the bollards.
But the defense countered Swartz acted in self- defense in a dangerous area. "The government tried to downplay how dangerous it is to be a Border Patrol agent down by the border," defense attorney Sean Chapman told the jury. "They must be living in an alternate universe that they want you to join them. Don't do it. You were there, you know what it's like."
They jury visited the shooting site during the trial.
On Oct. 10, 2012, the night Swartz killed Elena Rodríguez, agents and local police officers responded to reports of a couple of drug smugglers jumping the fence, dropping off marijuana backpacks and running back south.
Swartz was among three Border Patrol agents who responded. Shortly after he and the others arrived, a group of people started to throw rocks at the officers so the two smugglers stranded on top of the fence could flee.
Almost immediately after, Border Patrol surveillance video shows Swartz leaving cover behind an SUV and approaching the fence with his weapon drawn. He is seen putting his hands through the four-inch gaps and shooting three times. He then moves right for another eight seconds, puts his gun through the slats and fires 10 more times; then reloads and shoots three more shots.
While law enforcement officers are asked to make split-second decisions in rapidly evolving and tense circumstances, this was not a split-second decision, Feldmeier said. "He didn't stop and assess the situation as he is trained," she said. "It was a thoughtful and deliberate sequence of events over 34 seconds."
None of the other agents or police officers shot across the border, she pointed out. Swartz exaggerated the threat, she said, to justify his actions.
Swartz said he heard a "ping" from a rock heating the fence, heard another agent say he had been hit (who testified he didn't remember saying it), and a thud of a rock hitting a police officer's canine before he responded.
And that's what Chapman told the jury they should consider when making their decision: what did Swartz perceive that night? "You have to put yourselves in his shoes."
He asked them to use a wrist watch while they deliberate and to have everyone be quiet for 30 seconds to get a feel for how long the shooting was. "This thing happened in half a minute."
Swartz didn't have to hide or seek cover, Chapman said. "He is allowed to use his experience and say 'this is a scary, deadly force situation'."
"Agents are told from first day that rocks are deadly weapons, potentially," he said. "We may not like that, but that's how they are trained."
Between 2010 and 2014 agents were rocked 1,713 times, he told the jury. Out of those they responded with deadly force 43 times, which resulted in 10 deaths.
Chapman used that number to show the frequency of the rockings. But Feldmeier divided the number of rockings per year to come up with .02 rockings per agent, if divided by 20,000 agents, or .04 rockings if divided by 10,000 agents.
Within Swartz's first year, she said, he was involved in seven rocking incidents to which he largely responded with the use of less-lethal force, such as pepper ball launchers.
This, she said, paints a picture of an agent looking for trouble akin to a fighter who as soon as he hears the bells, comes out punching. She said he acted like someone who had trained himself to immediately react to rockings by using some kind of force.
To Chapman though, the fact that he always used a less-lethal weapon before showed an agent who would have avoided deadly force that night if he had the option. But because he had been working at the nearby port of entry that night, he didn't have access to a less-lethal weapon.
Facts such as whether Elena Rodriguez died from the first shot or was alive when Swartz switched positions and continued to fire have been central to the case.
Chapman argued that Elena Rodríguez was killed within the first 10 seconds after Swartz started to shoot.
Full Article: https://www.google.com/amp/s/tucson.com/news/local/jurors-begin-deliberating-in-re-trial-of-border-patrol-agent/article_9c083fa4-1373-59e3-9293-4e75ca4c19fc.amp.html
Source: tucson.com
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