PHOENIX -- Prosecutors in the murder case against a Border Patrol agent are now willing to concede that the teen he shot and killed through the border fence was throwing rocks -- and apparently was trying to assist drug smugglers.
In new filings in federal court, Assistant U.S. Attorney Wallace Kleindienst told Judge Raner Collins that the government “will not dispute’’ at trial that Jose Antonio Elena Rodriguez “was one of three individuals who ... was throwing rocks over the fence.’’
Potentially more significant, Kleindienst said prosecutors will not contest that the rock throwing by the 16-year-old was apparently done to help two people who were on top of the fence “who were trying to successfully drop down onto the Mexican side of the border after smuggling two bundles of marijuana into the United States.’’ But he said the question of whether Elena Rodriguez was employed by a drug cartel “is simply unknown.’’
The concessions by the government are significant because it means attorneys for Lonnie Swartz now will be able to present that information to a jury scheduled to hear the criminal trial set to begin in October.
Defense attorney Sean Chapman, in his own legal filings, said that information will help jurors understand the situation when Swartz admittedly fired through the fence, hitting Elena Rodriguez, who was on the Mexican side of the border, in the back at least 10 times. And that, Chapman contends, will show that Swartz did not act “with malice aforethought,’’ the legal standard to gain a conviction on charges of second-degree murder.
But Kleindienst is arguing that, rocks or no rocks, it does not affect the case he is preparing against Swartz.
“This is not a drug trafficking case,’’ he wrote. “This is simply a case about whether Elena Rodriguez presented a threat of serious bodily injury or death (to Swartz) regardless of his motives.’’
In some ways, the government is in no position to deny that there were rocks.
At a hearing earlier this month, prosecutors showed Collins a video which is a combination of actual security camera footage and incident reconstruction. They want his permission to show it at the trial because it provides some evidence that Swartz fired at least 13 times, including stopping to reload.
Chapman is arguing against its admission.
The government’s concession about what the teen was doing shortly before he was killed comes amid another series of motions about what jurors can see and be told. That includes a bid by Chapman to have a witness tell jurors about drug smuggling, both overall and in the Nogales area.
Chapman also wants to show jurors various Border Patrol training videos which he said are shown to agents “to emphasize to agents how dangerous rocks can be.’’
“The jury is not only going to need to understand what occurred in this case but why Agent Swartz reacted as he did, in order to assess Agent Swartz’s state of mind,’’ the defense attorney told the judge in his legal filings. “To do that, the jury must be able to understand not only the nature and circumstances of what occurred that night, but also the nature and circumstances of drug smuggling in this area as Agent Swartz understood them to be.’’
All this is relevant, Chapman said, to that question of whether Swartz acted “with malice aforethought,’’ a key element in determining whether the agent can be found guilty of murder.
Kleindienst, for his part, agreed that jurors have to decide if Swartz’s actions “were reasonable and necessary under the circumstances.’’ And he conceded that the agent’s state of mind is relevant, including whether the rocks constituted a “threat of imminent serious bodily injury or death.’’
But the prosecutor said what Chapman wants to introduce is “evidence patently calculated to inflame the jury.’’
The same is true, Kleindienst said, about what the victim was doing at the time of the shooting.
“This is simply a case about whether Elena Rodriguez presented a threat of serious bodily injury or death by throwing rocks into the United States regardless of his motives,’’ the prosecutor wrote.
He said Swartz is free to testify that, based on his prior knowledge about the dangers of rock throwing along the fence, that he acted in the manner that he did. But Kleindienst said the videos Chapman wants to show jurors “do not add any more relevance to that testimony and are, to the contrary, unduly prejudicial to the government’s case.’’
In a statement last month, attorney Luis Fernando Parra who represents the victim’s family told Capitol Media Services that it denies allegations that the teen was involved in any kind of drug smuggling.
“This is an effort to deflect attention from an unlawful killing by the U.S. Border Patrol,’’ the statement reads.
The family has filed a separate wrongful death civil case against Swartz. But that case remains on hold until the U.S. Supreme Court rules whether those who were not in the country when they were killed can file suit in federal courts here.
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