[A series of reports giving updates and details about the ongoing court trial of Border Agent Lonnie Ray Swartz for his shooting of 16-year-old Jose Antonio Elena Rodriguez in Nogales in 2012 — Eds.]
4/24/18 Statements from three stakeholders seeking justice for the Elena Rodriguez family
The faculty and staff of the Center for Latin American Studies join many in the Tucson community in expressing our support and admiration for the family of 16-year-old José Antonio Elena Rodríguez, who was killed by Border Patrol agent Lonnie Swartz on October 10, 2012. Swartz fired 16 bullets from behind the border fence in the U.S., hitting unarmed José Antonio, who was on the Mexico side of the border fence. The bullets struck José Antonio eight times in the back and twice in the head.
Yesterday, a jury acquitted Swartz on second-degree murder charges but deadlocked on lesser charges. Prosecutors must now decide whether to re-try Swartz on manslaughter charges.
It’s understandable why this case has provoked deep reactions. We can only imagine what the reaction would be in the U.S. if a Mexican border guard killed a white child on the U.S. side of the line. Wearing a uniform must never be a shield from justice. We reiterate our firm support for justice and accountability along the border and our solidarity with communities on both sides of the border suffering the effects of ongoing border militarization.
Marcela Vásquez-León, Ph.D.
Director, Center for Latin American Studies
Associate Professor, School of Anthropology
The University of Arizona
Statement of Bishop Edward J. Weisenburger
Bishop of Tucson
April 24,2018 –Yesterday’s deeply troubling jury decision related to the Border Patrol agent stationed in the Nogales area, who fired multiple shots across our border with Mexico, killing a 16-year-old boy on October 10, 2012, raises serious issues of justice and accountability. While we are privileged to live in a nation whose greatness is rooted in its democracy and fair treatment of all, such decisions reveal that our democratic institutions are not without flaws and occasionally grave injustices. I find myself in a close bond of fraternity and solidarity with the family of Jose Antonio Elena Rodriguez and the many who have been unable to achieve the kind of authentic justice upon which our nation was founded.
While the issue at hand is primarily one of law enforcement, nonetheless, it is yet another reminder of our broken immigration system. The United States Conference of Catholic Bishops, along with the Arizona Catholic Conference, continues its longstanding commitment of urging Congress to pass comprehensive immigration reform. The key values that underscore this reform are (1) affirming the human dignity of all persons regardless of their legal status, (2) the right to have a well-regulated border, (3) the right of people to immigrate, and (4) an orderly process to welcome new immigrants whose inalienable human dignity must always be respected.
We must keep in mind that customs and border control agents are oftentimes placed in situations of great danger. Too, there are times when their efforts have resulted in saving the lives of those in great peril. We rely upon their high degree of professionalism and integrity. However, I respectfully call for continued scrutiny of the methods and procedures employed by those who secure our nation’s borders, for transparent accountability, for a renewed sense of dignity and the humane treatment of all persons regardless of their legal status, and for authentic justice when human rights are denied.
Edward J. Weisenburger
Bishop of Tucson
KBI stands with the Elena Rodriguez family
NOGALES, AZ, & NOGALES, SONORA, April 23,2018 — October 10, 2012, the night José Antonio Elena Rodriguez was killed by Border Patrol agent Lonnie Swartz, was a devastating moment for José Antonio’s family and friends. They have struggled to keep the memory of Jose Antonio’s life and the injustice of his death in the minds of local citizens, and state and federal governments on both sides of the border. At the Kino Border Initiative, we have stood with his family in their grief and their persistent fight for justice. As such, we accompany them in their sorrow today given the jury’s decision to declare Lonnie Swartz not guilty of second-degree murder.
We also remember other victims who have been unjustly killed by Customs and Border Protection (CBP) agents while on Mexican soil, such as José Alfredo Yanez Reyes in Tijuana, Sergio Adrian Hernández Guereca in Cd. Juárez, Antonio Perez Ramirez in San Luis Colorado, Ramsés Barrón Torres in Nogales, Guillermo Arévalo Pedraza in Nuevo Laredo, and Juan Pablo Pérez Santillán in Matamoros. All of those who are responsible for these deaths are free from punishment, and none of the victims nor their family members have ever been afforded a path to justice.
KBI has consistently advocated for reform of CBP policies and protocol, as well as for greater accountability and oversight of CBP, to ensure that the dignity of border residents and migrants is upheld. Today’s verdict demonstrates the persistent obstacles to accountability in Border Patrol that remain, particularly when it comes to use of force. We continue to call for measures to prevent future deaths, including an increase in staffing levels for personnel involved in oversight, the implementation of body-worn cameras with robust privacy and accountability protocols, and a more transparent and accessible complaint process. These steps are critical to ensure the safety and well-being for border residents and migrants who are detained by Border Patrol.
José Antonio’s family has been committed in its demands for justice, which resulted in the historic decision to charge Lonnie Swartz with second degree murder. 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.
4/23/2018 Verdict: Lonnie Ray Swartz trial
by Norah Booth
Not guilty was the verdict today for Border Patrol Agent Lonnie Ray Swartzl on the charge of 2nd degree murder in the October 2012 shooting death of 16-year-old Jose Antonio Elena Rodriguez. The jury deadlocked on two lesser charges of involuntary and voluntary manslaughter. This meant Swartz walked out of the courthouse still under indictment.
A status hearing is scheduled for May 11 when the prosecution will announce any decision on seeking trial on the remaining charges.
Not one of the jurors was willing to talk to reporters at the close of trial, about 4 pm today. The jury spent three days last week and one today in deliberations.
As soon as the verdict was announced protesters began gathering outside the courthouse. Sixteen candles lined the sidewalk on Congress St. representing the 16 bullets Swartz fired, each candle with a person in a black veil standing behind it. There were many signs, banners, posters, and speakers with bull horns calling for justice for Jose Antonio and other victims of Border Patrol killings. The crowd swelled to about 100, many of whom next poured into the intersection, holding banners, waving signs, answering in unison back to those with bullhorns, and blocking traffic in four directions on Broadway and Granada.
Bicycle police on the scene were soon followed by patrol cars. Motorists for the most part did not seem to enjoy being caught in a demonstration. There were cacophonies of horn honkings. Police blocked the roads before the intersection and directed existing traffic in backing away from the intersection. It took about half an hour to clear the streets. No attempts were made at arrest of the demonstrators. At one point a police officer politely asked several protesters if they would clear the street they were blocking. The people refused and the officer withdrew. Activists wearing green hats were visible, there to document police behavior and look out for any unconstitutional police actions.
As of 6 pm police effectively diverted traffic from the intersection.
Protests continued with the crowd heading west to I-10 where the freeway entrances were blocked on both sides of Broadway. Eventually protesters retraced their steps to the courthouse. The demonstration continued until after 11pm. Protesters promised to be back on May 11.
4/18/2018 Lonnie Ray Swartz trial
by Norah Booth
Please look for commentary on observations and aspects of the issues presented by this trial posted on OTC before the verdict.
Thank you for feedback I have received on this reportage.
4/16/18 Lonnie Ray Swartz trial Day 16 CLOSING ARGUMENTS
by Norah Booth
Re: summarizing the closing arguments. I could not do a better job than Perla Trevizo at the Arizona Daily Star. I refer you to her p. 2, April 18, 2018, description of both attorneys’ statements.
Below is additional final testimony was added to the case before closing arguments.
Defense read into the record a recap of the 2014 meeting in Mexico regarding the autopsy findings of two coroners who stated the first bullet killed Jose Antonio Elena Rodriguez.
Defense wanted to counter the fact that both officials changed their minds and statements after the prosecution met with them and disclosed information about the shooting, specifically, the repositioning of the shooter and the timeline of the shooting. Both changed their testimony in court, agreeing with the findings of U.S. forensics specialist, Dr. Emma Lew.
Prosecution presented a witness, Chad Steel, who is a special agent in charge of forensic analysis, a PhD in computer science, an adjunct professor at George Mason University, and has written two books on digital forensics. He was in court to counter testimony from Grant Fredericks regarding the reliability of camera images used by James Tavernetti in creating his enhanced video of the shooting.
Steel testified the thermal camera functioned correctly. There was some shimmer due to atmospheric conditions, but no part of the original video Tavernetti worked with was fabricated. Tavernetti overlayed on the existing video. Steel said sufficient pixels existed in the video to see gross body movement.
Defense asked Steel if he knew of the testimony of the camera operator whose first reaction when she saw the start of the video was, “Oh, it’s out of focus.” Steel repeated several times he had never heard her testimony. He insisted, “Clarity does not affect ability to see gross movement.”
Prosecution next brought Taide Elena, Jose Antonio Elena Rodriguez’ grandmother to the stand. She testified that her grandson lived both in Nogales, Sonora, and in Nogales, Arizona. She lives in Nogales, Arizona. She immigrated to the U.S. when he was a young boy. She could not remember the year. She said she saw her grandson
“every day” since he was born. “He crossed all the time.”
Asked when was the last time she saw him, she said she was with him in Nogales, Sonora, “all the day until dusk” on the day he was killed.
Asked which hand her grandson favored, she said, “Isquierdo,” the left.
This business conducted, Attorney Wallace Kleindienst made closing arguments for the prosecution. He opened with:
“Lonnie Swartz on October 10, 2012 intentionally killed Jose Antonio Elena Rodriguez. He eliminated a human being.” Kleindienst said today, April 16, would have been “Jose Elena’s 21st birthday” had his life not been extinguished.
Kleindienst said we all know “Border Patrol agent is a difficult job. We know they are there to serve and protect us. But still, like us, they are imperfect human beings. . . they can’t use the badge” as a shield. That day, “for whatever reason, [Swartz] decides Jose Elena was not going to live. [Swartz] was fed up with rocking.”
Kleindienst talked about how as a society, “we believe in the sanctity of human life . . . we apply laws to the use of legal force . . . [Swartz] chose to become a border patrol agent. It’s a dangerous job. But before he was given the ability to use legal force he was taught . . . before you take someone’s life . . . there is a high standard. You have to believe that someone is in danger of death or serious bodily injury. Was it necessary? . . . leaving the [safety] of a vehicle to kill Jose Elena?”
He next brought up the triangle border patrol agents are drilled in: there must be intent to cause grievous bodily injury, there must be proximity to the danger the suspect presents, the suspect must have the means to cause death or serious bodily injury. “They are schooled in this. Agent Swartz passed the class . . . When you have awesome power to take lives, there are laws.”
4/12/18 Lonnie Ray Swartz trial Day 15
Reporter: Norah Booth
Morning court opened with continued testimony from video forensics expert Grant Fredericks. Much time was spent going over information covered the day before. He re-explained what he had come to say: the camera records selectively to minimize data storage; movements are recorded with a 3.5 second delay between data storage; meanwhile, the portions of the screen without movement stay static because the camera uses existing images instead of creating new ones.
All of this led to a comparison of two small photos, blowups of two shadowy figures. In one, viewed earier in the trial in the video created by prosecution witness James Tavernetti, the figures appear farther apart than in the photo Fredericks says is an accurate picture of the placement of the indistinct figures.
It was a long way to travel for not a lot of clarification. Defense wanted to cast doubt on the accuracy of the results Tavernetti achieved when he enhanced the visuals of the shooting using the lesser quality footage available to him. It was not easy to follow the tech talk. Fredericks also mentioned that the outdated equipment available to the courtroom made his task more difficult.
In the end, Fredericks admitted he was not an expert in Tavernetti’s field but said, “I think (Tavernetti’s video) has issues.”
Recently retired Border Patrol Agent Peter Hermansen was the next witness for defense. He was called due to his involvement in creation of Border Patrol’s 2010 agent training handbook, including its use-of-force policy. 2010 is the year Swartz was trained at the New Mexico academy.
The witness affirmed that “rockings are a serious event,” and that from 2010 to 2014 border patrol counted “under a couple of thousand events” involving rocks. He said nothing in their training “forces agents to retreat,” but, “the whole purpose of training is designed to get you to think.”
The issues brought up seemed to see-saw. Deadly force is a last resort. It’s also the first resort sometimes, depending on circumstances. Hermansen said that would be a “very unfortunate situation. Personally,” the retired agent said, “I would rather do anything else I could than” move directly into use of deadly force.
Prosecution questioning focused on the training manual’s policy language: use force only when “reasonable and necessary.” And this is defined as being “from the perspective of what a reasonable officer agent” would do. Prosecution pointed out that at the border that night there was no enforcement going on. There was no one in custody, there were no bundles at the fence, no arrests, no seizures. Mr. Hermansen agreed with that assessment.
This testimony also ended with an ambiguous outcome. There was talk of the “totality of circumstances” and that while there should be “no choice” other than deadly force, what happens when an agent determines deadly force is necessary? This brought up mention of Graham vs. Connor, the 1989 Supreme Court decision in which “. . . the Court determined that an objective reasonableness standard should apply to a civilian’s claim that law enforcement officials used excessive force in the course of making an arrest, investigatory stop, or other ‘seizure’ of his person.“
Some questions from the jury were,
Have you ever discharged your weapon? “No, I have not.”
What if a person is down? Hermansen said that the person was then no longer a threat.
Is there a limit to the number of shots an office can fire? The response was, “No.” He qualified that by saying “sufficient to eliminate the threat.”
Gary A. Rini, an independent forensics analyst, was next witness for the defense. He was flown in from Ohio because of his involvement in 2000 in creating international standards for crime scene investigation.
Mr. Rini said all the rocks in the whole area surrounding the shooting should have been picked up and tested for DNA. He said there were problems in this investigation on both sides of the border, citing the vehicles running through the crime scene high above where Jose Antonio Elena Rodriguez was killed.
He was there to discredit the border patrol and especially the Mexican police and doctors for the crime scene investigation in the aftermath of the shooting.
Prosecution declined to question him. The jury also had no questions for him.
I asked attorney Wallace Kleindienst later why he didn’t question Mr. Rini and he said he did not want to waste time because he was calling a witness who could only be there today and he wanted to have time for that witness. He also said he was bored with such talk which did not address the moral issues in this case.
In the afternoon defense brought another video expert to the stand. Engenio Liscio is from Toronto, Canada. He has degrees in engineering. He left Boeing in 2005 to start his own business in mechanical engineering.
(This entry will be updated once court transcripts are available. I was not in court for testimony of the last witnesses today.)
Defense witness Liscio went over the video created by James Tavernetti for the prosecution. Liscio testified the blurry video did not present scientific evidence with its depictions and likely depicted false motion.
Defense claimed surprise with the final witness of the day. Attorney Sean Chapman complained that he had only been notified that a clinical psychologist would visit court the evening before.
The witness for the prosecution was Philip S. Trompetter, an independent contractor in Modesto, Ca., who received his PhD in clinical psychology in Tennessee in 1970 and has been practicing in California since 1972. He has specialized in police and forensic psychology since 1978. His online bio states: “My police psychology practice is limited to consultation in litigation-related matters involving use of deadly force, police psychology standard of practice and psychological fitness-for-duty evaluations.”
The following is based on interviews with two people who were in the court for testimony.
Dr. Trompetter testified that the concept of “threat magnification,” a term used earlier at the trial by Dr. Laurance Miller, is not one he is familiar with as a clinical psychologist. He said the concept does not exist in any of the literature.
Dr. Trompetter said that the symptoms described by the accused do not fit his experience working with police in officer involved shootings. He said 34 seconds is a long time for a shooting. Officers he has worked with remember the bullets. They may not be able to describe the surroundings, but they do hear the gun go off and recall how many shots they fired.
The most telling comment Dr. Trompetter made was that he is usually witness for defense, but when he was presented with and reviewed the information in this case he agreed to be a witness for the prosecution.
Final arguments will be heard next week.
4/11/18 Lonnie Ray Swartz trial Day 14
This morning’s colorful witness was Dr. Cecil Wecht, a Pittsburgh pathologist and forensics expert famous for his insistence that the Kennedy assassination was a conspiracy and coup d’etat. Dr. Wecht, 87, estimates he has performed 20,000 autopsies in his career. He has been a consultant in many high profile cases, including Robert F. Kennedy, Elvis Presley, and Anna Nicole Smith. Actor Albert Brooks recently played Wecht’s character in the 2015 movie, Concussion.
In court today he was cranky, outspoken, and dismissive of the prosecution and of other forensic conclusions in this trial. He insisted that the first conclusion of the Mexican autopsy authorities was the correct one. He said he based his autopsy determinations, only four summarized pages were given to the prosecution, on the original information in the Nogales, Sonora, autopsy report. He said he had a copy of Dr. Emma Lew’s report and that she was entitled to her opinions, but he disagreed. The first bullet hit Rodriguez in the head and his fall at that moment produced the injuries to his face and back of hands, according to Dr. Wecht.
When prosecutor Kleindienst asked about Dr. Wecht’s law degrees and work with other attorneys Dr. Wecht became combative. Dr. Wecht said he does not like prosecutors bringing in new evidence long after autopsies are performed, as was the case here. Knowledge of the pauses in the shooting and repositionings of the shooter led the Mexican coroners to change their opinion about their original conclusions.
Dr. Wecht said although the first bullet to the head killed the teen, he did not likely die immediately.
There was some uncomfortable levity in the courtroom when Kleindienst, who had been taking the four pages stapled together back and forth to the witness, seemed to have misplaced the pages. He came back to the witness and picked the pages up. “Indian giver,” Dr. Wetch said, then self-corrected with a sentence about how that probably wasn’t an appropriate thing to say. Dr. Wetch followed with, “You can’t take the boy out of the man.”
Asked about the dangers of rock throwing, Dr. Wecht referenced Gaza.
When the jury submitted questions, one asked if there was damage to the lungs. Dr. Wecht said, no damage, then was shown a photo with a bullet path through the lungs. He said he hadn’t meant to say damage. Kleindienst presented one of the four pages to Dr. Wecht and asked if a statement in it was correct. Dr. Wecht said there was a mistake. Kleindienst pointedly asked, “Would you correct it?”
Dr. Wecht’s testimony today was practically the opposite of Dr. Lew’s.
Dr. Wecht will earn over $20,000 for his prior evaluation work and testimony at this trial.
There was only a short break and then the trial resumed. This was done to accommodate an attorney who had a prior commitment necessitating a 3 pm end to proceedings today.
The short afternoon session witness was Grant Fredericks, who is a video forensics expert. He demonstrated how the cameras that captured the shooting save data by only updating objects that move on the screen. These updates occur every 3.5 seconds. Most of the picture stays static. He showed footage of frames that were mostly black representing static with squares and rectangles of, for example, cars that were moving. When he ran the footage at normal speed from start to finish in this mode the images were incomprehensible.
Fredericks will return Thursday.
Trial resumes Thursday at 9:30 a.m.
4/10/18 Lonnie Ray Swartz trial Day 13
Court ended at 11:30 today due to scheduling; to be updated.
4/9/18 Lonnie Ray Swartz trial Day 12
Lonnie Ray Swartz surprised the prosecution by taking the witness stand at the start of the trial today. As I was not able to attend the morning court, what is here is backed in from the court transcript of Tuesday’s proceedings and questioning people who witnessed testimony.
Reporter: Norah Booth
Tables were turned today.
Prosecution objected noticeably to defense “gamesmanship” tactic of providing no notice of Swartz being called to testify. Defense had sent notice of other witnesses over the weekend to prosecutors, but did not provide “the courtesy” of disclosure according to prosecution. Judge Collins said something to the effect that he was sure Mr. Kleindienst would be okay.
Swartz, 43, is married 23 years. The couple has no children. He is a high school graduate. He worked heavy construction. He joined the Border Patrol in 2010.
Defense asked Swartz to describe his activities the night of the shooting. He described the port on a slow night. The call came in about two people on the fence, then said they were TBS, turning back south, but then another two were on the fence. There wasn’t much going on at the port and so permission was asked and given for Swartz and two other border agents to go west along the fence. Two people were climbing the fence, also TBS. Swartz heard a ping and was sure it was a rock hitting the fence.
“I remember looking at Wynecoop and he had this sick look on his face,” Swartz said. “I was scared. I was scared to be hit with a rock. I elected to defend myself and my fellow agents and that police officer,” referring to the Nogales Police officer who was with the canine. This is the first of four versions of this statement in his testimony.
“What did you do?” defense asked. At this point Swartz offered, “Do you want me to step down and demonstrate?” At first defense declined, but soon Swartz was out of the witness box explaining, “This is called a high search. And what you do is, your finger is off the trigger. You carry the weapon at a 45 degree angle so you can kind of see in front of you.” He returned to the witness box after this exercise.
Questions turned to what happened next. He said he slowly approached the fence. He saw first one, then two of what appeared to be adult-sized subjects. He got “my weapon into close proximity to the fence.”
Do you know many shots did you fired? he was asked. “No, sir, I don’t. “The individual appeared to start going down. He made that motion like he was going down to the ground.”
Had you already made the decision to use deadly force? defense asked. Swartz: “It was the only tool on my belt to stop that threat.”
“Lonnie, the physical evidence in this case is very clear. It shows you were firing into his back. Were you aware of that at the time?”
Swartz: “No, I was not.”
From here defense began setting up its defense that Swartz was in his right, due to his fear of being hit by a rock or having other agents hit by rocks, to use deadly force. He also is not able to recall what happened after he heard Officer Wynecoop say, “Shit. I’m hit, I’m hit,” which Wynecoop testified earlier he had never said.
After he fires the first shots and moves to the second firing position Swartz said, “…things started getting very distorted. I’m not a head doctor. I don’t know why, but things started to get very distorted and very grey. When I saw–perceived–that second rock thrower when I fired, things get very unclear, very unclear at that point.”
He then goes on to say he never heard his gun fire, “I never remember reloading the magazine, never.”
Were you aware you fired from a third position?
Prosecution asks Swartz to answer clearly as he could not hear him.
He had picked up the magazine and knew it was his, he said, “because I was the only one I saw right there next to the fence.”
Defense asks, “You’ve described issues with your memory?”
“Sir,” he answers, “since that night I don’t know why I can’t remember certain things. I’ve struggled with this for five and a half years. Of everything, I don’t know why. I want to remember. It’s like a piece of my life that’s been wiped away and I can’t get it back. I’ve looked for it, and I can’t find it.”
Swartz next describes going over to the telephone pole and throwing up. He says he needs a drink of water and a minute. He is tearing up. He asks for another minute. Asked about his behavior he says it is “because I had just discharged my weapon at a human being.” He asks for another minute and court goes into a brief break.
“In the Border Patrol you can pull your weapon at any time you think you may need it,” Swartz told prosecution when court resumed. “But at this time, I do not recall drawing my weapon.”
Prosecution asked if the person on the fence who clearly had a knife in his back pocket had made any threatening gestures. Swartz said no. He did say he feared a “fatal funnel” which has to do with being within 21 feet or less of a potential assailant.
Prosecution asked about his telling Dr. Lawrence Miller, a psychologist, that the situation was basically over when he arrived on the scene.
Prosecution asked, “How do you know your fellow agents were in danger of being hit by a rock if you don’t know where they were? Questioned about the rocks, Swartz said, “I don’t have to look up and say, well, it’s dark outside, but that one looks big enough, okay, so I can react.”
In the next exchanges Swartz repeats three more times a version of, “I elected to defend myself,” and several iterations of, “I would be dishonest if I said I remembered.”
One witness from the public to Swartz’ testimony said he was “strong.” Another said he seemed highly coached in his answers, citing, for example, his repetition of key phrases concerning his memory lapses and his decision to defend himself.
Several public witnesses said he cried three times during testimony.
Reporter: Norah Booth
“The law does not require police officers to utilize the absolute minimum force necessary in a threat situation — only that the level of force used be reasonable to control a deadly threat”
Dr. Lawrence Miller, Phd, author of the article cited above, is “a clinical and forensic psychologist and law enforcement educator and trainer based in Boca Raton, Fl. Dr. Miller is the police psychologist for the West Palm Beach Police Department, mental health consultant for Troop L of the Florida Highway Patrol, a forensic psychological examiner for the Palm Beach County Court, and a consulting psychologist with several regional and national law enforcement agencies.”
Dr. Miller’s testimony on police use of force followed testimony by the defendant and was intended to back up Swartz’ claims, such as not remembering what happened after he fired the first shots.
Dr. Miller speaks very fast and was repeatedly asked to slow down for the court reporters. He interviewed Swartz by Skype three times three years ago. He was paid $10,000 for those three sessions, and will receive $10,000 for this testimony.
Dr. Miller presented a dated powerpoint titled the Neuropsychology of Deadly Force Encounters. It didn’t take long for defense lawyer Shawn Chapman to say, “My brain is having a hard time processing all this information” and ask Dr. Miller to use ‘layman’s” language.
Dr. Miller next explained how the amygdala (commonly referred to as the “reptile brain”) shuts off the hippocampus because “it wants your brain to help you survive.” A number of chemicals, like noradrenaline and cortisol, are released and very complex neurological changes take place when a person is threatened. Dr. Miller stated he has evaluated over 100 officers involved in shootings and the symptoms that Swartz claims match theirs.
These include: time compression in which events are happening incredibly slowly or very rapidly; visual hyper-focus or “tunnel vision” in which only some of the visual surroundings are noticed; threat magnification in which the situation appears more dangerous than it really is; motor programs, or “going on automation”; and memory impairment, distortion or selective enhancement, what commonly would be called hallucination, although that was not the term used.
In this state of mind a person can see multiple persons when there is only one. A downed person can look like he is standing and afterwards the shooter “may realize they were facing a threat that was not as great as they thought.”
Dr. Miller said that “after the brain comes ‘back online’ (one realizes) the brain did not actually serve you well.”
Dr. Miller listed common reactions for most shooters:
24-to-72 hours of recovery
Hyperarousal or “adrenaline dump”
Heightened safety concerns for self and family
This was the first case Dr. Miller has testified in that involved rocks. In response to the prosecution questioning he said he did not know that any rocks thrown that night would have had to travel 70 to 90 feet. He maintained that Swartz’ behavior was consistent with other cases he has evaluated. He said Swartz seeing a second rock thrower when there was none is consistent with threat magnification.
4/5/18 Lonnie Ray Swartz trial Day 11
Today was not a good day for defense.
Court opened with continuation of testimony by Dr. Emma Lew. Prosecution went over the questions Dr. Lew had promised to answer at court yesterday. Which bullet was first? Dr. Lew said she does not believe that Rodriguez was hit by the bullet in the brain first. That shot would have killed him instantly. She believes the evidence points to his receiving a paralyzing bullet in his back, the one that hit his spine and moved up five vertebrae. That one would have paralyzed him from the waist down, and indeed the position of the legs indicate they were disconnected from normal control. While she could not say for sure which bullet followed another, she believes that shot brought him to the ground and that he was able to move the upper body after.
She says the autopsy indicates he moved his position three times after falling to the ground. His left arm was stretched forward, the only position that accounts for two bullets that hit him in the back ending up in his left arm; he also pulled his left arm closer into his left side and also raised his head slightly and turned it to the left. Only voluntary movement describes the coordination required for such complicated movement, she explained. She thinks in this raised position the fatal bullet hit his head causing his face to fall forward, which, she says, is the only explanation for the damage to his front teeth. The right front tooth was knocked out of his mouth.
Defense seemed scattered today and admitted it was no match for Dr. Lew. “I’m not going to argue with you,” attorney Chapman told Dr. Lew. He did advance the theory, repeatedly, that the first bullet hit the brain. He had no cohesive response to Dr. Lew’s testimony. He did say defense would be arguing that the video documentation was extremely faulty. He brought up the video made by witness James Tavernetti, asking her if she had viewed it. She said she had but it had not influenced her much. Dr. Lew is very authoritative and precise in her explanations. Cross-examination did not last long.
The first bullet killing Rodriguez is what defense desperately needs to prove. It would mean Swartz could claim fear for his life, Rodriguez had a rock, he reacted to protect himself. All the other bullets are of no consequence if the first one killed him.
Two journalists were called separately to the witness stand next. Each had taken footage and still shots of the crime scene the night of the shooting. One worked for the radio station, the other worked for a Nogales paper.
He was shown a photo and asked if he took it. He had. It was a photo of Rodriguez’ body on the sidewalk. Asked if he was inside the taped-off portion of the street when he took that photo that ran the next morning in the paper, the journalist said, “No. That is a crime.” All the photos taken by the two men were entered into the record.
The last witness before lunch was Jose Antonio Elena Rodriguez’ aunt. When he did not come home that night members of the family went looking for him. The next morning they found out he was killed when they saw the photo–the one shown minutes before in court–in the paper.
After lunch things seemed to get worse for defense. Their witnesses were up. Read into the record was an interview with a person who said he worked for the FBI, referred to as Senor.
He was allowed to work construction in the U.S. He was an informant for the FBI. He said he did this a long time ago for about five years. He wasn’t sure how much money he made. He didn’t keep track. He said maybe 60 to 70 thousand over that time. Read into the record was an official account of $220,020.30.
This narrative was interrupted to bring witness A.O. to the stand.
A woman was sworn in and defense began questions about where she lived, which is in the area north of the border fence where the shooting occurred. More than five years ago she told investigators her grandson knew Jose Antonio. They went to school together. To make this longer story very short, presented with questions about what she had told investigators at the time of the shooting she denied them today in court. A.O. had been played up by defense. She knew the boy, had seen him run past her house, men with long guns were chasing him. Fear of drug smugglers was the reason only her initials were used. Defense wanted her testimony entered from an interview, not in person, but this request was denied. Enough? Even defense thought so and she was quickly dismissed.
Defense returned to Senor. Read into the record was the rest of the interview he had with defense. Asked about the night the shooting occured, Senor said he “ran into people he knew” who were talking about “the event.” What did you do? “I went there. I’m kind of nosey like that. It interests me.” He goes on to talk about “people were shooting at them.”
The interviewer asks, “Who?”
“My friends who get around. Five, six seconds over the wall and back.”
He goes on to say these friends were “active in the event.” He says they tell him that the whole thing has gone to hell. The Border Patrol was shooting at them. They were scared that “anyone who moved would get shot at.” He called one of them El Pato, “the duck,” the other, El Chapin. (Chapin is a central American word for Guatemalan, but no definition of this word was provided.)
Senor explained that he/she was not present for the shooting, did not hear shooting. He said El Pato and El Chapin crossed the border with two others. They threw rocks at Border Patrol. He quoted them as saying Jose Antonio was given rocks to throw. They were “cursing at La Migra.”
Commentary: Juries do not pay attention to unverifiable witnesses.
Next witness was a private investigator hired by defense. He had gone to A.O.’s property and had a recent picture of the driveway. With this information going nowhere, defense focused on tennis shoes he had bought that matched the Nike shoes worn by Jose Antonio when he died. He told how he had gone to the border and rubbed the shoes along the fence “20 times” to see if the rust that rubbed off matched the color on the shoes worn the night of the shooting. There was some discoloration on the new shoes, but there was not much of a comparison to make between the pictures of each. Prosecution asked if he had requested Nogales authorities test the shoes they had to see if the substance was rust. The private investigator had not and indicated that was not his responsibility.
Agent Jeffrey Plooy was brought back to the witness box. He was asked about the “less lethal” weapons used by Border Patrol.
Shown a photo of what looked like a plastic short rifle he identified it as a “pepperball launching system.” He said the weapon can fire “85 to 100 rounds.” An agent must be certified in use to carry one. Once certified, an agent is not required to use one. Plooy said they work with groups of six individuals throwing rocks. The pepper balls are like paint balls, but contain pepper spray, an irritant that causes breathing difficulties and stings the eyes.
He was asked about finding smugglers with rust on their clothing. He said he can’t recall seeing rust on smugglers, but had seen rust on people who were crossing.
Court resumes Monday, April 9, at 9:30 a.m.
4/4/18 Lonnie Ray Swartz trial, Day 10
Witness Absalon Madrigal continued explaining the autopsy procedures used after Rodriguez’ body was brought to the funeral home. There were three documentations, including photographs,of the wounds: once with the body clothed, once with clothes removed, the third after the body was washed. Dr. Madrigal made notes and “an unidentified person” wrote the autopsy report for the authorities. His notes are routinely discarded after reports are finalized. Asked what the autopsy process is, Dr. Madrigal said “injury by injury” and the order is “head to the feet.” Each wound is detailed in the report with its own paragraph. For example, wound #2 corresponds to paragraph #2. Four bullets passed through, and six were found inside Rodriguez’ body.
Dr. Madrigal said he uses a stylus, which looks something like a pen, to try to track the trajectory of bullets in soft tissue. He was able to match entry wounds to exit wounds. Concern was expressed by defense because not every wound had been photographed during the stylus procedure.
Either of two bullets were the probable cause of death. One entered the back of the neck on the left side, passed through the cerebral tissue and lodged against the right skull in an upward trajectory. The second came through the center of the back, hit the spine, traveled up the spine, and was removed from the collar area. Three bullets were removed from the left arm. Another bullet was located below the collar.
Defense needs to prove that the first bullet killed. Dr. Madrigal agreed in 2014 that bullet #2 in the autopsy report, the one found in the skull, was the likely cause of death and likely was the first bullet to hit Rodriguez, who had dental damage and lacerations and bruises on the left side of his face and on the backs of his hands, as if he fell forward with no ability to put his hands out.
But prosecution visited Nogales on August 19, 2016, and at that time informed Dr. Madrigal that the bullets had not all been fired at the same time. Three were fired, an eight second pause, then ten shots, another pause for three seconds, followed by the final three bullets. This information changed Dr. Madrigal’s opinion. The trajectories Dr. Madrigal calculated made sense if Rodriguez were still alive on the ground and his body was able to change position as it took more bullets.
Defense next argued with Dr. Madrigal as to whether he had attended a meeting in 2014 in Nogales. Dr. Madrigal said he was at the office, but in another room. He said he was not part of the hierarchy involved in that meeting. Diaz Trejo, his superior, was at that meeting. Dr. Madrigal did not deny that in 2014 he held the opinion that the first bullet fired probably killed Rodriguez. But information disclosed two years later by prosecution changed his opinion. Dr. Madrigal said his opinion in 2014 was “possible, not probable.”
Bullet #4 in the autopsy report, the one that hit Rodriguez in the center of his back and traveled up his spine, would have caused paralysis in his lower body. He would still have capacity to move his head, use his arms to arrest his fall, and put his hands out. Dr. Madrigal changed his opinion on November 28, 2016. He said he did not know at that time that Swartz had been indicted.
Javier Diaz Trejo was the next witness. Prosecution informed the court that Diaz-Trejo had recently been involved in a gas explosion accident and was not well.
Diaz-Trejo said he co-signed Rodriguez’ autopsy report with Dr. Madrigal. He said he did attend a meeting August 19, 2014 with American authorities. At the time Diaz-Trejo was asked his opinion as to which was the first shot fired. He was asked if he said bullet #2 was the first shot because of abrasions found on the body and he agreed.
The meeting in 2016 was in the U.S. Was it agreed at that time that another wound could have been the first shot? he was asked. After a series of questions it appeared Diaz-Trejo was not understanding and prosecution moved on.
Defense also had a difficult time with questioning. Diaz-Trejo was asked about his opinion that abrasions could have come from the victim falling against the wall. The doctor said, “I said a hard surface.”
Prosecution asked the doctor his opinion as to whether he thought Rodriguez’ face had hit the wall or the ground. He said ground.
Next witness was Dr. Emma Lew, a medical examiner from Miami-Dade County, Florida, and an expert in autopsy evaluations, with experience in more than 1,000 evaluations she has made, including some in several countries. She said she is “totally focused on dead bodies,” and that she “enjoys working on gunshot wounds cases.” She has written a chapter in a textbook on gunshot wounds.
Prosecution disclosed she was receiving $330 an hour for her court testimony and $100 an hour for consultation, however that money is paid to Miami-Dade County and she only receives her salary.
On August 17, 2017, she interviewed Diaz-Trejo and Dr. Madrigal in Nogales, Sonora. She was going to talk to the court about these questions:
Which bullet was first?
What was the order of the bullets?
Which hit him when he was alive and which after he died?
Movement: voluntary vs. involuntary
A life-size stuffed mannequin was brought into the courtroom and knitting needles were stuck into it to indicate the bullets fired and explain the trajectory of each in the body. For the last minutes of the day the court watched Dr. Lew stick the mannequin and describe the path of each bullet. She ended her testimony by showing how the body had to be moving to justify the pattern of the bullet paths. Only movement accounted for keeping the bullet trajectories in line. Rodriguez was not killed by the first bullet fired in her opinion. Dr. Madrigal, no longer a witness, was in court and nodded in agreement as Dr. Lew spoke.
Dr. Lew will continue her testimony tomorrow.
Court resumes at 9:30 a.m. Thursday.
4/3/18 Lonnie Ray Swartz trial, Day 9
The prosecution presented five witnesses today, each called to testify to his role in providing either investigative, forensics, or autopsy expert services in Nogalas, Sonora, following the shooting death of Jose Antonio Elena Rodriguez.
Joel Jurado Gomez was asked by the prosecution to explain his actions the night of the shooting. He is on video outside of the crime scene tape talking to people who have gathered. He said he was checking for the possibility of any witness to the shooting. He goes back inside the tape and is seen picking up a piece of plaster to set next to evidence located near the body. He is asked what he noticed about the body. He describes the head as being west, the body face-down, inert. The victim is wearing blue jeans, a gray t-shirt, black belt, and gray tennis shoes. He said he recognized the wounds as caused by “a furious shooting to back and head. I saw a projectile on the sidewalk. His (the victim’s) right cheek was on the ground.” Asked if he picked up or noticed any rocks in the vicinity of the victim, he said he had not. He also answered, “No,” when asked if he had touched any of the evidence. He said rocks were collected at the scene. He was asked if he had touched any evidence at the scene. He said, “No.”
The second witness was Roberto Tapia Valdez, who has been with the Nogales District Attorney’s Office for 15 years. Tapia-Valdez explained that Mexico changed its investigative system from “a written system to an oral one” in 2015. The techniques used at the time of the Nogales shooting are not practiced any more.The changes have to do with how information is processed and certified. Tapia-Valdez described the crime scene. He said he saw the lifeless body of an unidentified male. He had been warned that it was a violent death. Time was spent talking about a piece of plaster that was placed in front of a bullet as a marker. This process was typical at the time. He said the body was taken to a funeral home for autopsy because Nogales did not have a suitable facility at that time. He was asked if evidence protection protocol was followed in this case. He said, “Yes.” A question from a juror asked if he had worn gloves that night. “No. I did not need them. I did not handle evidence. I don’t touch it.”
Third witness was criminalist Blas Cota-Mendez. “It’s my job to photograph the area.” He looks for evidence and documents everything found at a crime scene with photos. Cota-Mendez is an attorney and has been employed the last 15 years by the Sonora District Attorney’s Office.
The family of the victim was not in court for this proceeding. The photos include close-ups of the body and its wounds. Three deformed bullets are documented, one found about a meter from the victim, two located under the body once it is turned face-up. A Blackberry phone was found in a front pocket of the teen’s jeans. It was photographed above where it was found, placed on the body.
The body was moved to a gurney and taken to a Noriega funeral home, there are three in Nogales, for autopsy. At the time, Nogales did not have a dedicated facility for autopsy. Some photos of the autopsy were shown. At first data collection at the autopsy location was focused on identifying the victim. That became unnecessary when the boy’s mother contacted authorities, identified her son, and provided a birth certificate. She also filed a complaint at the time.
Defense asked many questions about the quality of the data collection. Photos of a plastic box with hand-written information taped to the top and sealed with tape were shown. In 2014 the wrong clothing was brought to the U.S. It seems items processed the night of the shooting were sent to other police agencies over the years, one in Mexico City.
Cota-Mendez said the photos did not show how the clothes had been wrapped right after the shooting.
Questioning next concerned the number of bullets in the wall. Cota-Mendez said there were 13 impacts. Asked what made him think the holes in the wall were caused by bullets, he said he recognized the characteristics from observation at other sites. Asked about the white debris around the body he said it was from the wall where they later “had to dig the bullets from.”
The next portion of the trial showed autopsy photos detailing wounds. Swartz never looked up and never stopped writing on a notepad during this time.
Defense used it’s time to show one photo where the clothed body is turned on its side. Swartz did look up at this photo. The attorney zooms in on discoloration on the shoes and around the knees on the jeans. He asks Cota-Mendez if he knows what they are. “Brown stains?” he answers. He is asked if he knows that smugglers get rust stains on their clothing from climbing the border fence. He answers, “No.” He says he did not take the autopsy photos.
Next testimony came from Manuel Villa Osuma, a chemist for the Sonora state government for the last 12 years.
Toxicology tests he performed on a urine sample returned negative for marijuana, cocaine, amphetamines, opiates, methanphetamine, and alcohol in the victim’s system.
He also conducted swab tests of the front and back of the boy’s hands to determine if there were any traces indicating he had fired a gun recently. These also came back negative.
Also tested were holes in the clothing to detemine if they were made by bullets. There were six holes in the boy’s t-shirt. His conclusion was that the holes were caused by a firearm at a long distance.
Final witness was Dr. Absalon Madrigal, a specialist in forensic medicine who estimated he has performed between 250 and 300 autopsies in his career so far. In 2012 he said he probably performed five to ten a month. He said he received a call the night of the shooting and, ready for bed, had to get dressed again to go out.
He was the one who gave authorization to remove the body. He said the body was transported face-up to the funeral home for autopsy. He said the facility used was outfitted and suited for autopsy. The next portion of the trial concerned the tools used to trace the paths bullets take in bodies.
Asked if he was following International Medical Procedures, Madrigal said Mexico uses “the French system” which is similar.
It seemed throughout the day that prosecution was trying to establish that the techniques of evidence and data collection, though less sophisticated than the U.S., provided adequate and proper examination and that all personnel involved were well-trained and practiced in their work.
Trial started with 16 jurors, four being alternates. Two jurors have now been dismissed for personal reasons. Of the 14 remaining, two will be randomly dismissed by lottery before jury deliberations begin.
Trial resumes April 4, 9:30 a.m.
4/2/18 Lonnie Ray Swartz trial, Day 8
Reporter: Norah Booth
“I see no intent . . . he should not have shot anyway. That’s not a justified shooting!”
With this outburst Allen H. Foraker, retired Border Patrol agent with 28 years service, the man who trained Lonnie Ray Swartz in firearms, stunned the court today with his volunteered opinion.
Foraker spent much of the morning explaining the schedule, curriculum, expectations, requirements in firearms use, and, especially, training in legal use of lethal force. Lethal force is only legal when confronted by “a person who possesses the means or ability, intent, and opportunity to cause death or grievous harm to the officer or another person.” Lethal force must be the last resort, he explained. It “can be used only when there is no other way to diffuse the situation.”
The former agent, who taught firearms use for three years from 2009 to 2012 in Artesia, New Mexico, at the U.S. Border Patrol academy, explained that all three criteria–ability, intent, and opportunity–must be present to justify shooting. Agents are not allowed to fire warning shots or deliberately take wounding, non-lethal shots. They are trained to assess the situation and if deadly force is required they are to aim for “center mass,” that is, the center of the available target.
Foraker said these rules are “excerpts of the law.” He said the purpose of the academy is to educate trainees enough so they can make the right split-second decisions. He explained that if an officer has a choice to take cover or “take an assault” the officer must choose cover. He said the training is to get agents to “look at all circumstances, to check for all options. We value the sanctity of human life.”
Emphasis is put on taking cover “so you don’t get hurt.” He said at the site where Jose Antonio Elena Rodriguez was shot there was ample room for cover in the Nogales’ police vehicle and a sedan, a building, and trees to the north of the border. “It is a sound tactical movement to find cover.” If an agent doesn’t take cover “you can get hit by a rock. You can get shot.”
He said the law regarding use of lethal force does not apply to canines. The danger has to be to self or another person. “A canine does not justify lethal force.”
Defense asked Foraker if he had ever worked in Nogales. He had not. He was not familiar with “the 410,” the area where the shooting took place. Asked by defense if agents can make decisions about imminent danger, Foraker said, “Yes.” Did he agree that the decision to use force is made in the blink of an eye? He said, “Yes.” Defense then described the aftermath of lethal force use for the officer: they can lose sense of where they’re at, there is adrenaline in the body, the heart rate gets high; they are trained to bring their heart rate down, they can get tunnel vision, they may not hear their firearms go off, they can lose sense of time and experience events in slow motion, their memories are impaired. Foraker agreed, saying, “after a shooting an officer is given 72 hours to calm down.” He agreed that Border Patrol is “a dangerous business.”
However, when cross-questioned by prosecution the attorney turned his back on Foraker and asked if “center mass” included someone with his back to an agent, at that point Foraker made his startling statement. Judge and attorneys consulted a long while, after which the witness was dismissed.
There was another issue that came up during Foraker’s testimony. A firearms training certificate was handed to him along with an academy firearms attendance sheet. He found Swartz’ name on the roster, which had his signature, but he did not recognize the certificate with Swartz’ name on it. He said it was not from the Border Patrol academy. No explanation was given for the introduction of this information.
Prosecution disclosed that Foraker was paid $175 an hour for his time on the case.
The word “sanctity” came up again with the next witness.
Juan Pablo Espinoza Armenta was in charge of his municipal police shift in Nogales, Sonora, the night of the shooting. During opening remarks of this trial defense suggested that a Nogales law enforcement official may have been responsible for “kicking” the body on the sidewalk. They showed clips at the beginning of the trial to that effect. However, prosecution isolated the video in question on Monday and showed the body being covered with a tarp. “Kicking” the victim now looked more like two people, one identified as being from Red Cross, carefully laying a cover on the body. When asked why this was done, Espinoza Armenta said, “To cover the body out of respect for the sanctity of the person.” Asked if anyone had tampered with the body, he said, “No.”
Defense made disparaging comparisons between U.S. experts’ treatment of a crime scene and the techniques used in Mexico. Espinoza Arementa was asked if numbered markers were part of the equipment used in Mexico and if diagrams were created of the location of objects at crime scenes. The Mexican police officer said, “We don’t have the means.”
Final witness of the day was Francisco Cibera Aguilar, who in 2012 was employed by the Federal Police as an officer and was among the first on the scene of the shooting. He is seen in the video played in court using a flashlight to search the ground near the victim for evidence. He affirmed that non of the officers touched any objects related to the crime that night. He also climbed the embankment not far from the shooting to hand a radio phone found on the ground over to a U.S. border patrol agent.
Court resumes Tuesday, April 3, at 9:30 a.m.
3/29/18 Lonnie Ray Swartz trial, Day 7
Reporter: Norah Booth
Today was video day at court. James Tavernetti returned to the witness box and the prosecution tried to clarify for the jury exactly how he produced the videos they would be seeing. He was tasked with using data collected in 2014, detailed in the court the day before, to create a 3D image of the shooting setting. He “stabilized” the background and eliminated irrelevant portions of the footage. He enhanced the setting graphically so the tiny figures moving in the scene could be more easily followed. He also marked with bright colors the paths that three rock throwers on the Mexican side took during the incident, and the path Swartz took on the roadway at the fence above.
Defense had a difficult time understanding the construction of the video. Finally, it was clarified that the surveillance cameras only move when they first are directed and as they focus. Once in place, they are stable. Tavernatti’s enhancement of the background visuals could not interfere with “camera shake,” a concern for the defense, because there was none.
Next, the videos were played. Much of the discussion was about the thermal camera that was swung to focus on the body lying on the sidewalk in Mexico moments after the shooting. Two images, very blurry and out of focus resulted. The first has been interpreted as Rodriguez with his left arm stretched out in front of him. In the second, which Tavernetti referred to as “the final position” the left arm has to be bent at the elbow as it is close to the body.
In the video Tavernetti can only find that three rocks were thrown from the first position of the rock throwers. The three run west. It appears one is ahead of the others and loops back in front of the two. Tavernattie describes him as “in throwing motion directed at the International border fence.” The figure next appears to stagger over to the sidewalk and fall. The other two have rounded the corner and disappeared.
During 34 seconds of the video, Swartz fired 16 rounds, stopping to reload once.
Defense next put up fuzzy photos of a vehicle shot by a thermal camera as it comes into focus. He suggested that stills taken from thermal video make things look like they are moving.
The second and final witness of the day was U.S. Border Patrol agent Kevin Hecht, with 23 years of experience who is the agent in charge at the Nogales port. He oversees “about 500” employees.
He was asked to confirm documents citing six incidents involving Swartz and use of “less than lethal force, all of them between December of 2011 and July of 2012, on rock throwers at the border. On each occasion, Swartz used grenade-like devices containing pepper spray, sting balls, which are little rubber balls inside the grenade-like device, and a third variation that releases smoke.
Prosecution pointed out that there was a witness to only one of these events.
Hecht said he could not comment on the devices when asked by defense as he personally was not trained in their use. Agents are allowed their use, he explained, but they must be trained, and Swartz had completed the training required.
Hecht agreed that sometimes force is required at the border.
Trial is to resume Monday, April 2, 2018
3/28/18 Lonnie Ray Swartz trial, Day 6
Reporter: Norah Booth
For the first time since proceedings started defendant did not wear sunglasses most of the day.
The first witness, FBI Supervisor to Gerardo Carranza, Michelle Terwilliger, was completing testimony from the day before. Regarding three of the shell casings that were found crushed, the court watched again the clip of Swartz shooting and she agreed he may have stepped on the casings when he was backing away from and then going forward to the fence.
She said she was not aware of a third video camera.
She explained why DNA samples were not taken on seven rocks collected following the shooting. First, they may not have been the rocks thrown that night, second there was no way to know when any DNA was put on them, and third, due to its surface area and composits, it is difficult to obtain a DNA profile off a rock.
Next, testimony was read from a report by Jessie Sherman Morgan, a border patrol agent with the Evidence Collection Team in lieu of his appearance in court. The packing tape and paper used to bundle the marijuana found that night did not provide viable samples of finger or hand prints that could provide forensic evidence. The only clear fingerprint was from Border Agent Cory Brown.
Family members of the deceased were not in the courtroom for the next portion of the trial.
Prosecution called its witness, Virgil Thomas Bevel, forensics expert and author of 17 books on the subject who also has a long list of lifetime experience and accomplishments in law enforement and forensics science, especially in identifying and deciphering “blood spatter patterns.” According to Bevel, Jose Antonio Elena Rodriguez was angled just above or on the sidewalk when some of the bullets hit him. Bevel made this observation based on the splatter pattern of blood and tissue on the wall behind Rodriguez’ body. Bevel only had photos to work with, but he explained how it is possible to tell from the blood on the wall where Rodriguez was in relation to the ground when he was shot. Bevel testified blood stains on his left hand fingers and on his left arm above the elbow were consistent with his stretching out his arm. This finding is important to the prosecution because they argue that Rodriquez was not killed by the first bullet that hit him. Bevel testified the position of the body in the photograph was not consistent with his wounds.
Defense asked Bevel if he was aware a Mexican agent may have “kicked” the body that night. Bevel said a very strong kick could change the position of a body. Bevel said one would then look for blood runs on the face consistent with repositioning. Defense asked if there can be involuntary movements accounting for the inconsistent line up of the bullets to the body position Bevel had pointed out. Bevel said he should ask a medical examiner that question.
Court adjourned for lunch.
Reporter: Thomas Moore
A juror’s question was about the evidence of human tissue found in one of the blood spatter stains on the wall. Mr. Bevel replied that this was common when blood samples are obtained from gunshot wound sources.
The next witness was 3-D scanning expert Michael Haag, a former Oklahoma City police officer and specialist in homicides, who now operates a private consulting firm in that city. He has developed a very precise 3-D scanning system to reconstruct the crime scene. This was done in July 2014 under contract with the DA’s office. Michael Haag showed how he had mounted cameras in two locations on the US side of the border, one from a cherry picker that leaned out over the Mexican side and could record details of the scene where the victim’s body was found, below the cliff on the sidewalk on the Mexican side of the border. The third camera location was from the Mexican side, in coordination with the Mexican authorities. District Attorney Kleindienst and case officer Sarah Arrowsmith were present with him when these images were recorded. The cameras moved in full circle, 360 degrees, recording details of the site, except a small circle beneath the area where the camera had been positioned. Some of the details included blood smears that were still on the wall and the consistency of the wall and sidewalk concrete. Mr. Haag also had detailed interviews with Mexican authorities, including the Sonora Attorney General Roberto Valdés, autopsy doctor Díaz, and Mr. Haag’s initial report was submitted on August 2014, and the file was transferred to another specialist from his firm, James Tavernetti.
Cross by attorney Calle asked details of the scanning procedure, and juror questions sought to pin point a few details.
The next witness, James Tavernetti, who received the report from Michael Haag, explained how the file was handled with details of the chain of custody. The Defense attorney asked about the delays between the time the consulting firm received the autopsy report in January 2014, the scanning procedure in July 2014, the initial report in August 2014, and the final report in December 2014. The witness replied that this was a common time frame, since they have to obtain corroborating evidence from agencies in both the US and Mexico to ensure the accuracy of their report.
The next witness was another forensic specialist, Lucien Haag, the father of Michael Haag, who is a specialist on firearms. A former FBI agent, he now operates his own consulting firm in the Phoenix metropolitan area. He personally owns the same kind of gun used by agent Lonnie Swartz to kill José Antonio Elena Rodríguez.
Lucien Haag went over the bullet wounds, and bullets extracted from the victim’s body, as well as the graphic autopsy photographs in great detail. He provided precise information on bullet entry points, exit points, and where bullets were found in the body. He provided extensive detail on the height on the victim’s body where the bullets entered, how they reached his arm, and where some of the bullets exited the body. From the shape and lead content of the bullets, he concluded that some of the bullets had only entered and exited the body through soft tissue, including the brain, and organs of the upper torso; others had passed through the body and hit a concrete surface, while still others had missed the body and only hit concrete.
The session concluded at 5:10 pm and will continue on Thursday, March 29th at 10:30 am. There will be no testimony taken on Friday, March 30th, but the trial will continue on Monday, April 2, at 9:30 am.
3/27/18 Lonnie Ray Swartz trial Day 5
Reporter: Norah Booth
Agent Jeffrey Plooy was questioned on his whereabouts during the shooting. He said he was “picking up bundles” prior to hearing rocks hit the fence. He had found one bundle and was searching for the second. He next said he couldn’t really confirm hearing rocks hit the fence, but he heard gunfire. He said later after the shooting he saw rocks on the sidewalk. He said he was “in a secure area” and was not in any personal danger. He said he did not see anyone approach the fence. “Why would I go out and get myself in danger?” he said. He had no idea where the shots were coming from. He saw the canine move “like it’d been hit” with a rock. He said he did not know it was Swartz shooting. He did hear a pause and assumed the shooter had stopped to reload. He never saw anyone throw rocks. He next told defense that he did hear rocks “pinging” on the fence. When asked if rocks were falling on all sides of the road, he said, “Yeah.” Defense asked if he told the Grand Jury he saw the canine get hit with a rock that night. He said, “Yes.”
It was stated that a vet who examined Tesko, the dog in question, could find no injury.
Asked why rocks get thrown Plooy said rock throwers can’t know if their bundles have been found but may want to clear agents from the area. He was asked if the fence was dangerous and if agents do not go there unless they have to be there. He agreed with that statement. “If people are on the fence you have to let them go. If you go after them they may fall and then you have to call an ambulance, you could get sued. The fence is a safety issue for you? defense asked. “Yes,” he said. But then, when asked, “no, you don’t avoid the fence. You’ve got to do your job. You go to the fence if you have to.” He agreed rock throwing that night lasted about a minute. Asked if the evidence of rust on clothing and shoes indicates that someone has been on the fence, he agreed. Defense asked if he would agree he was in a different position physically from Swartz and if that meant he may have been seeing the situation differently? He agreed.
Prosecution questioned if he had called out from cover to ask about the canine. He said he called out after the incident about the dog. Prosecution asked if he had heard of any agent being hit by a rock in Nogales since 2010. He was asked this question in several ways before answering, “No.” Prosecutor Kliendienst asked if Border Patrol policy is that if there is not a reason to engage, back off? He answered, “Yes.” Kliendienst next asked, “Do you know what caused Agent Swartz to go to the fence?” He answered, “No.”
A question from the jury asked about agents taking directions from the camera operators. Agent Plooy said it was sometimes better to follow one’s own observations rather than camera operators who are at a distance.
Another jury question was, “How could the Mexican side know if you found bundles?” He said there are scouts in and around the neighborhood who make reports.
Next witness was Gerardo Carranza who worked in 2012 at the Tucson based Critical Incident Team. He was called within 15 minutes of the shooting and was on the scene by 1 am. He had special equipment called a Total Station with him. When he arrived on Western Ave. in Nogales he spent the first 15 minutes in a walk-through of the scene. He was looking for rocks. He said it was important to ascertain how many rocks were thrown. He was photographing the vehicles, the sidewalk, the rocks, and shell casings. Supervisor Cruz Mendez asked him to photograph the gun used in the shooting plus the two magazines, one with nine bullets still in it. Carranza said he was at the scene until 9 a.m. He was handed Swartz’ gun in court and asked to verify the serial number on it.
He next described the Total Station tool. He was documenting the scene using a light pole as reference point. The device records the distance data between objects, “accurate to the width of a dime,” which he later uploads to a computer to create diagrams of incident sites. By October 20, 2012, he had created a report that lists, then diagrams all the vehicles, sidewalk, border fence, rocks, and 16 shell casings, 13 grouped in one area, and the three other casings nearby.
All the rocks seemed to be concrete and not natural rocks, Carranza said. Prosecution asked about a discrepancy in his diagram. It had “overshot” or been out of proportion in some calculations. He said the issue was a human error.
Defense asked Carranza if he knew that four or five cars had driven through the very sites he photographed and diagrammed before he arrived. Carranza seemed surprised. Defense ran footage from the Nogales fence camera showing vehicles driving through the area until finally a border patrol car blocks the road. Also, maybe forty people walk through the incident area, going back and forth to look through the fence. Asked if this “raises serious questions about where the shell casings actually were located,” Carranza replied, “Yes.”
Defense next asked if he was informed that the concrete rocks were “exploding on impact?”
“I was not,” he said.
Court adjourned for lunch.
Reporter: Thomas Moore
The afternoon session on Tuesday, March 27, began with Defense attorney Calle cross-examination of US Department of Homeland Security Critical Incident Team agent, Gerardo Carranza. He was previously on a bike patrol and knew the area well. Shown the video of the crime scene again and asked about the location of the rocks found at the crime scene, he stated that a few of them, could not be precise about how many, did not fit into the landscape on the Arizona side of the border and likely came from the other side of the fence. Then regarding the spent shell casings, he could not speak to whether or not they had been moved. During the morning session, the videos had shown that for a short time after the shooting the crime scene had not been secured by the Border Patrol, and some cars and pedestrians were shown to have passed through the area; they could have stepped on or run over the rocks and/or shell casings.
Asked about other rocking incidents at the border, he replied that these were more common on the east side than on the west side of the port of entry, because on the east side the ground is either level or higher on the Mexican side, which makes throwing rocks easier. At the crime scene, on the west side, there is a 20 foot bank down to the Mexican side; so, rock throwers have to heave rocks higher and with less control.
Juror questions asked whether it had been disclosed previously that vehicles has passed through the scene and why the supplemental report was dated July 13 with no reviewer date. Agent Carranza replied that these were reporting errors.
The next witness for the Government was the Critical Incident Team Supervisor Michele Terwilliger, who had been called at her home in Tucson minutes after the shooting and arrived on the scene in Nogales around 1:52 am. When she arrived, another CIT agent, Kapperstein, was already there. She interviewed witnesses, made sure the rocks and shell casings that had already been identified by agent Carranza, were properly marked. She put the evidence into plastic bags and sealed and initialed them for laboratory analysis. The two marijuana bundles that had been located were also marked and sealed as evidence.
The session was suspended at 2:45 pm because of a juror illness.
3/23/2018 Lonnie Ray Swartz trial, Day 4
Reporter: Norah Booth
In the witness stand is the young woman who worked as Remote Video Surveillance Operator the night of the shooting. By that time she had held the job over two years. Prosecution keeps adjusting for the approximately 15 minute time gap between the two videos. The timestamps that appear at the top of the footage are not in sync with the video she is using for comparison. Defense acknowledges the discrepancy and suggests only the actual time be referenced. Prosecution and Judge Collins thank defense.
The video taken on the U.S. side is better lighted than the Mexico side. This video, taken in “daylight” setting is clear and shows that the officers have good recall of where each was and what happened from their viewpoints that night. Defense asks witness if the kind of traffic seen on the video–individuals wearing backpacks going over the fence–is normal. Her answer: “Pretty much” and “every night.” Asked if she has seen armed “scouts”–persons who signal where Border Patrol agents are located and communicate to the “packers” the best times to attempt crossings–she says she had seen scouts but has never seen them personally armed. Defense asks if anyone came into the control room that night asking about the cameras. This was in reference to the missing third camera. She says she did not recall such a conversation. Although she operated the cameras she says this was the first she has viewed this video since the shooting.
All the agents who have testified have clear memory of the events and where they were during the shooting, confirmed by the video. This view is virtually overhead and well-lighted. Two males are on the fence near the top. One is helping the other climb. Agent Swartz is yelling “Stop throwing rocks!” He then goes to the fence and fires through. He steps back, fusses with his gun, then moves east and fires through the fence again.
Defense focuses on the camera which panned to the Mexico side of the fence after the shooting. The camera shifts to thermal on the Mexico side because the lighting there is dramatically darker. The video pans wide on the scene and is very blurry. The surveillance officer explains that when the camera moves she has no control at first. Until it places itself in a new position she is not directing it. The camera also makes a green flash when it changes from one mode to the other. This video is very blurry. What stands out is the dark shape of what looks like a body almost floating in gray space. In the next few minutes many people fill the screen. Camera is still in thermal mode, but clearer than the first view of the scene. Clearly, a body is on the sidewalk. Defense asks if the blurry nature of the thermal shots was sometimes due to camera shifts. She agrees. She said sometimes she thinks trees and even large rocks are moving when such movement can be attributed to camera shift or, “weather, mostly.” She affirms that the U.S. and Mexico border agencies cooperate with each other often.
Prosecution next clarifies with the operator that the 10-7 code indicating that someone was dead had already been broadcast: “All photos and video [shown] on camera 28 came after you were told an individual was dead?” The camera operator says, “Yes.”
A juror question asks her to again explain her training in using the cameras. A second question asks how long she was on duty that night. She says well beyond her 10 pm shift, well after the incident.
Next witness is Stephen Porter, U.S. Border Patrol agent since 2011. Prior to becoming an agent and being assigned to the Nogales DeConcini Port of Entry he had worked surveillance at a casino. He describes working all aspects of border duty, from the Tubac checkpoint to the southbound vehicle operation at the port. The night of the shooting he was on duty at the port along with agents Lonnie Swartz, Shannon Wynecoop, and Keith Grijalva.
Asked, “Why no long gun?” He says, not on the port. They are cumbersome. Along with others he is at the west door of the port when he hears broadcast that “packers” are coming over in “the vortex” 410 area. Watching out the west door they see two other persons with bundles closer to the port going over the fence. They were “a couple of hundred” feet away. After seeing people on the fence they decide to go help. Their supervisor says, “OK. Go ahead.” They see two crossers, two males running, go into the neighborhood. They see there are two sets of “packers,” one to distract, one to run through. Two run back across the street, toward the fence.
Asked about their training he says they were not trained to pursue the crossers up the fence. Staying off the fence “is more of an officer safety issue.” Porter says he was second or third behind Swartz and Wynecoop on the scene. He went looking for the bundles. He runs to the driveway, east of the other agents. There he comes across Nogales police officer Mendez. The two have never met before. They discuss the bundles and begin searching for them. They hear gunfire. Prior to it they hear yelling. They take cover around a junked car. They cannot see what is going on. Porter doesn’t know where the shots are coming from, but he leaves cover and the police officer “to help.”
Porter gets to the corner of the retaining wall. He sees people on the top of the fence–just sitting there. The gunfire has stopped. Agent Swartz is at the telephone poll. Porter draws his gun. He asks, “What happened?” He takes cover in the canine vehicle because “it felt safe.” Asked if he has been trained about taking cover he says, “Take cover. Hide you. Look for cover, take cover. When? Have cover first, before anything else, before doing anything.”
Porter says he never saw a rock in the air and never heard a rock fall. Asked by defense if he was in fear for his life he answers,“No.” He says he did see rocks on the side of the road close to the sidewalk.
Court adjourned for lunch.
Reporter: Thomas Moore
Cross-examination of Border Patrol agent Stephen Porter by attorney Sean Chapman began by a question to the Agent about why he was so matter-of-fact in his description of the events around the killing of the Mexican teen-ager, José Antonio Elena Rodríguez, to which the Agent replied “That’s what we do.” Asked if it was a dangerous situation, he replied “Yes, that’s commonly the case.” Then he agreed with the Defense Attorney that those situations can change rapidly from not dangerous to very dangerous.
Next, Agent Porter was asked about the size and quantity of the rocks being thrown, to which he replied that he could not be precise, but upon Defense insistence and suggestion that the rocks were between 3 and 6 inches wide, he agreed that that was likely. Asked whether or not he had been rocked before, he said “Yes.” And that he was aware that other BP agents had been rocked. This is not a daily situation, but it is not uncommon.
Agent Porter is still employed as a Border Patrol agent, and he has been posted to Nogales, Arizona, his only posting for the past seven years.
There was a discussion of drug smugglers passing small bundles of drugs as a distraction tactic to draw BP agents away from an area where larger bundles are passed across the border. Agent Porter agreed that that was a common practice. Also, that BP agents did not always take cover when rocks were thrown during drug smuggling attempts, because “that would only encourage them to throw more rocks.””
When the Prosecution asked whether or not every rock throwing incident was equally threatening, Agent Porter said “No, some are more life threatening than others.” Then, “not every rock requires the use of deadly force in response.” In a previous rock throwing incident, he did not respond with deadly force. “You just try to stay out of the way of the rocks.”
In response to juror questions, Agent Porter stated that, while on other occasions there has been coordination with the Mexican police, but that was not done this time. Also, that he had not received any medical treatment when a rock grazed his shoe in a previous incident. And that he did not believe that the dog, Tesko, was not hit by a rock. That led the Defense to recall his testimony of November 5, 2012, that the dog had been hit by a rock, then the shooting began. To that Agent Porter agreed that his earlier statement was probably correct, but that he had not remembered it.
The next Prosecution witness was Border Patrol agent Joshua DeVowe, the first to arrive on the scene following the radio call. When he drove up to the site of the incident, he saw two men on the fence and immediately drew his taser. He had heard that rocks were being thrown and that a dog had been hit by a rock, but he did not see any.
With regard to the shooting itself, Devowe replied that he saw Agent Swartz at the fence, when the shots were fired, then saw him reload and fire again. He could not say that he perceived the situation to be one of imminent threat to life, requiring deadly force. He then saw Swartz against a telephone pole by the sidewalk, where he had vomited. He then approached Agent Swartz to calm him down and assure him that everything would be alright.
In the Defense cross-examination of Agent Devowe, prosecutor Kleindienst asked details about the bundles of marijuana. They were, and usually are, packages of 10-16 pounds, having a street value of approximately $800 per pound, too large to push through the fence slats.
Agent Devowe said he did not pursue the drug smugglers because he had been trained that it was dangerous to do so. Asked whether or not he had pursued drug smugglers before, he replied that he had, approximately 20 times. He had had one encounter with a drug smuggler that resulted in a struggle in which he managed to handcuff and arrest the smuggler.
Asked about the knife one of the smugglers was reported to have in his pocket, DeVowe responded that he had seen a glint of something metallic, but could not provide a fuller description. He said young people in this area frequently carry small pocket knives. He had not felt threatened by the knife because no one was using it in any threatening manner. Asked by Kleindienst if at that time he had felt his life was in danger, he replied “No.” Asked whether he felt Agent Swartz faced a need for the use of force when he approached the fence and began firing, he replied that he couldn’t say and that each agent has to assess his own situation.
Following a 15-minute recess, Nogales, Arizona, Police Officer John B. Zúñiga took the stand. Zúñiga is a trained canine support officer, who was with his dog, Tesko, the night of the shooting. He was standing by a Bank of America branch when he received a call from fellow Nogales police officer Quinardo García about bundles being passed over the fence. He then drove to the site in his Ford Expedition, described in great detail in response to questions from the Defense, with his dog, Tesko. Tesko barked. Asked by Kleindienst why the dog barked, Zúñiga replied that he had told Tesko to bark, so the smugglers would know he had a dog. He then got out and asked the two men, in Spanish, to come down off the fence, that it was dangerous. One said he would give up, but the other one persuaded him not to do so. The two men were able to get back over the fence into Mexico. He then backed off and took cover when he became aware that rocks were being thrown over the fence. Questioned about his enforcement strategy, Zúñiga replied “Wait and see.”
In response to the prosecutor’s questions, Zúñiga replied that he had heard that his dog had been hit and he felt the dog’s body with his hand, in the dark and could not find any indication that the dog had been hurt.
Zúñiga witnessed the shooting, but was occupied in care of his dog, which he put back into his vehicle, since there were other agents on the scene, and he didn’t feel he was needed by the fence. In response Kleindienst’s questions, Zúñiga replied that at no time had he felt he was in grave danger. He saw a rock in the air and others on the ground, but they were not coming near him. He replied “grave danger is when someone is shooting at you.”
Asked by Kleindienst if he had felt a need to go to the fence to assist Swartz, he replied “No.” There were Border Patrol agents there who could handle that.
Asked why he put the dog in the car, he replied “so he wouldn’t bite anyone; Tesko was alarmed by the gunfire.” He later took Tesko to a veterinarian, who confirmed that there were no injuries. Tesko was retired from duty in 2013, but he is still alive and cared for in Zúñiga’s home.
Following a few routine questions from the the Defense and also from the jurors on clarification of minor details, Zúñiga’s testimony concluded, and court was adjourned at 4:55 pm. Trial will reconvene on Tuesday, March 27, at 9:30 am.
March 22, 2018 (morning) — Day 3
Reporter: Norah Booth
Agent Wynecoop completed his testimony and cross-examination by Defense. At issue was the size and number of rocks thrown the night of the shooting and whether he was “scared” by them. Three rocks were removed from examination baggies and handed to the witness and jury. All of the rocks viewed were broken pieces of concrete. The largest one was 6-8 inches in diameter.The former agent said he considered rock throwing a distraction tactic used by smugglers. Prior testimony included a description of small bundles at the fence distracting agents from larger bundles crossing elsewhere. Defense kept asking if the agent was scared by the rocks. He again admitted to feeling fear, which was why he moved back from the fence. Defense asked if a video of an agent hit by a rock was shown the first day of his training. “Yes,” was the response. The agent said that after the shooting Swartz threw up and he heard him sobbing. The last question Defense asked was if agents look for rust on the shoes of smuggling suspects. He said, “Yes.” Wynecoop’s final testimony was a response to prosecution. Wynecoop said no other agent that night went to the fence. He said it is always an option to take cover and he had never seen any agent get hit by a rock. A question from the jury box was, “Is taking cover a personal choice?” The response was, “Yes.”
Next witness was Leo Cruz Mendez who was a Border Patrol agent for 14 years beginning in 2003. He had been a police officer in Puerto Rico, then joined the Air Force. He had applied for Border Patrol while still a police officer. When he was accepted by Border Patrol after training he was assigned to Nogales. In 2011 he became a supervisor. He left Border Patrol in 2013 and now works in Washington, D.C. vetting travelers to the U.S. He was in the field west of the shooting when he heard on the radio “865.” This code told him “shots fired” and the location. Next he heard “10-7” across the border, 10-7 meaning “dead person.” He estimated he was on the scene in under 7 minutes. Mendez said his first action was to attend to Swartz who was kneeling with his gun pointed at the fence. “As I’m approaching him I wanted to calm him down. I touched his shoulder. I remember I said, ‘Everything is going to be OK. Stand up.’ ” He said Swartz told him two individuals were on the fence. He had fired his weapon. He thinks he has shot someone. He mentioned the canine being hit by a rock. “I wanted to calm him down. How many shots [I asked him]?” He didn’t recall. Next Mendez described swapping his gun for Swartz’ gun. He said this action was not policy. It was “something I felt was right at the moment. I wanted to affirm his position as an agent. I wanted him to feel secure.” Mendez had Swartz sit down. The next court discussion was about the two magazines Swartz turned over to Mendez. One was empty. It was explained that the service pistols can fire 13 shots without reloading. There are 12 shots in the magazine and the gun can also be loaded with another bullet. At the scene Mendez had asked an agent identified as Pierce to “secure the scene,” meaning cordon it off with yellow tape and make sure nothing was moved. He said this was a matter of policy and the agent asked was trained in the procedure. One agent wanted Mendez to come to the fence. He declined at the time, stating he wanted to be with Swartz. Eventually he went to the fence where “I saw an individual on the south side on the street. I saw a crowd and I see a person on the ground. I see it is a deceased person.” Mendez ordered traffic to the area blocked. Mendez said he had been “rocked” three or four times in his nine years as an agent and that he never had fired a gun at at a “rocker.” On cross-examination from defense Mendez was asked about training regarding rocks and was asked if he feared for his life when rocks were thrown at him. He answered, “Yes.” He then said it was “common sense” to move out of range. Questioned last by prosecution, Mendez said he took cover every time rocks were thrown at him. I had the ability to back off. I had options.” The prosecution asked, “Common sense?” He responded, “Common sense.” Jurors are allowed to write questions of witnesses. One question was, “Is it common practice the back off?” regarding rocks being thrown. Mendez replied, “Yes. It’s an individual decision to take cover. It’s a personal decision. If I have a chance to de-escalate and take cover, I take it.”
Reporter: Thomas Moore
The afternoon session was devoted to the testimony of two Prosecution witnesses, Border Patrol agents Roy Pearce and Cory Brown. First, agent Pierce stated that he had arrived on the scene following a radio call regarding drug smuggling. Video of events during that time frame showing the smugglers coming over the fence, the positions of the patrol cars and the agents themselves, including the Nogales police officer and the dog. Most of the agents’ movements were to locate the marijuana, while the smugglers climbed back over the fence into Mexico. Asked by DA Feldmeier why they did not pursue the smugglers, Agent Pierce responded that aliens who were returning to Mexico were not a priority but the marijuana was. The testimony of Agent Brown was similar. Neither agent was focused on the smugglers, but on the marijuana. Both were marginal to the shooting but present on the scene at the time it occurred. Both were matter-of-fact about the rocking. Brown said it “rained” rocks. Asked by the Prosecution what that meant, Brown replied that since the rocks, fragments of cinder block and other debris, were heaved over the 22 foot fence, they fell on the US side of the border like rain, not horizontally nor with great force.
Questions directed at both witnesses from both sides were about the number, size, and location of the rocks. The responses indicated that the agents were not very concerned about the rocks and were doing their jobs in that context. Asked by the Defense attorneys whether they were afraid or feared for their lives, both responded that in these situations one is always wary and tries to stay away from the areas where the rocks are falling, but that they saw no need for other than routine precautions. Juror questions were focused on details of the testimonies of both witnesses, the definition of some of the terms used, etc.
During the Pearce testimony, a video showed the face-down body of the victim, José Antonio Elena Rodríguez. Elena Rodríguez’s mother, Araceli Rodríguez, broke down in tears and was ushered out of the courtroom, and the judge ordered a brief recess before the trial resumed. Araceli Rodríguez did not return to the courtroom for the rest of the hearing that afternoon.
March 21, 2018 — Day 2
Reporter: Norah Booth
The trial of Border Agent Lonnie Ray Swartz for the death of 16-year-old Jose Antonio Elena Rodriguez in Nogales more than five years ago began Tuesday, March 21, in Tucson Federal Court.
Swartz is charged with second degree murder, which, if convicted would mean he intentionally killed Rodriguez without premeditation when he fired 13 bullets into Mexico through the border fence. Swartz is also charged with malice aforethought showing an extreme disrespect for human life. Ten bullets hit Rodriguez, eight in his back, two in the back of his head.
In brief opening arguments the prosecution did not dispute that Rodriguez was throwing rocks at border agents, or that he was involved that night in the smuggling of marijuana. They argued that Swartz made himself judge, jury, and executioner of the teen. Lawyer Mary Sue Feldmeier counted the 13 bullets, demonstrating the time it took to fire them.
Defense made it clear they would be countering the effects of enhanced video of the shooting by the prosecution and that jurors would see that Swartz was within the law in his behavior. They will argue, as was repeated several times at opening arguments, that the first bullet killed Rodriguez and the other 12 fired do not matter.
Four prosecution witnesses completed testimony.
The first witness, Gabriel Duran from the International Water Defense Commission explained the history of the border between the United States and Mexico. Once the Gadsden Purchase was completed in 1848, monuments were installed by line-of-sight to locate the border. These concrete boundary markers still determine the border. Immediately, buildings were erected right on the line on both sides of the border. It was possible to go in a door in one country and come out a door in the other. The solution was the Theodore Roosevelt proclamation, enacted to allow 50 feet on each side of the border line where, to the present day, no buildings are allowed. Through the use of photographs the prosecution demonstrated that the U.S. Border fence is not always “on the border,” as sometimes the structure we recognize as the border is in or outside of the determining sight line. It was not clear why the prosecution brought this up.
The second witness, Gary Weaver, helped select, install, and operate the infrared and available light cameras used on the border at the time of the shooting. There are questions about the two videos shown in court being out of sync. He explained that with heavy use over time that issue can occur. There were also questions about the disappearance of a third video of the shooting. Three videos were requested by Border Patrol after the shooting. Only two can be located. After 90 days the videos are wiped out. Ninety days plus more than five years since the shooting means that the missing video can never be recreated.
The third witness was a Nogales, AZ, police patrolman Quinardo Garcia with 15 years experience who was on duty the night of the shooting. Officer Garcia’s voice is heard in recordings and he was early on the scene. Two persons in camouflage pants and dark jackets with packs on their backs were reported over the fence. He responded and is in the video showing the two running north into the nearby neighborhood. He pursued, but not far before calling for backup. He responded to Defense questioning as to whether he had fear in his voice in the recording by saying, “I had some concern,” and he could hear “adrenaline” in his voice. After a direct question by Defense, he agreed there was fear in his voice. The officer said he was not trained to consider rocks on deadly weapons. He said there have only been two times when he had rocks thrown at them. They were on the eastern end of the fence, where the embankment on the Mexican side is higher than fence, the opposite of the western fence. Rocks were being thrown down on him. He “took cover” and was not injured.
The fourth and final witness of the day was former Border Patrol Agent Shandan Wynecoop who was on duty with Lonnie Ray Swartz that night. He was “a junior officer” with only 15 months on the job. He had not been “rocked” before that night and not after. They heard the call on the radio at the U.S. Border Port, where both were assigned that night, from an agent saying they were “watching two kids on the fence.” By this time the two had dropped their bundles in the area north of the street that follows the border fence. They had run back and were part way up the fence. Defending them by throwing rocks were three individuals on the ground in Mexico. At this place the ground on the two sides of the 22 ft. border fence do not have a steep difference. “Rocks started coming over the fence. Swartz was in front of me. I backed up to the sidewalk . . . to get out of the way.” In response to a question, “I made a decision to back up.” The former agent said he did get hit by a rock that hit the ground and “rolled into my foot.” Asked if the rock hitting his foot was painful, he answered, “No.” He said he was scared at the time. Swartz had his gun out. He went to the fence. He did not know if Swartz had the gun out the whole time. He said Swartz yelled at the rock throwers to stop. The two people got over the fence. He was near the canine who he thought may have been hit with a rock. “He tucked his tail.” He said the officer in charge of the dog was scrambling to get it back in his patrol car. The agent on the stand admitted that at the time he was scared. “I was a junior agent. It was pretty scary to me.”
Day 1 was court preparations without proceedings.
The trial is expected to last a month.