The judge dealt a blow to prosecutors by disallowing as evidence any statements Swartz made to supervisors immediately after the killing.
Border Patrol Agent Lonnie Swartz’s trial for the 2012 killing of a Mexican teenager at the international border has once again been delayed, pushing the start date past the fifth anniversary of the teen’s death.
Swartz had most recently been scheduled to go on trial June 19 for the fatal wounding of 16-year-old Jose Antonio Elena Rodriguez, who was shot as he stood near the border fence in Nogales, Sonora. Collins has now pushed the trial date to Oct. 12.
The postponement will allow time for additional pretrial arguments, including debate over the admissibility of a videotape of the killing made by a Border Patrol camera near the border fence.
Defense attorneys want to bar use of the videotape as evidence at trial, contending the Border Patrol lost or destroyed the original copy and that the remaining DVD is of inferior quality. Prosecutors say the quality of the DVD burned by the FBI is standard, and that the video shows Elena Rodriguez moving on the ground between shots fired by Swartz.
ORIGINAL STORY: Judge to let Border Patrol agent’s murder case proceed
A federal judge in Tucson will allow the murder case to proceed against Border Patrol Agent Lonnie Swartz, who fired through the border fence and killed a Mexican teenager in 2012.
U.S. District Judge Raner C. Collins rejected arguments by Swartz’s defense counsel that federal prosecutors did not have jurisdiction to bring the case. Collins ruled that the 60-foot strip of land owned by the federal government along the border, from which Swartz fired, was sufficient to allow federal prosecution.
The judge dealt a blow to prosecutors, however, by disallowing statements made by Swartz to supervisors just after the killing to be admitted into evidence in the trial.
Just after firing 10 shots through the fence, Swartz spoke to his supervisor, Leo Cruz-Mendez. According to court documents, then Swartz began to vomit and said: “They were throwing rocks. … They hit the (K-9) dog. … I shot and there’s someone dead in Mexico.”
According to the judge’s most recent order, Cruz-Mendez replied: “Hey — just relax. Take it easy. Everyone’s doing ok. I’m going to ask you a couple questions. Just purely eight. … These eight questions are not incriminatory. They’re just basic information that I need so I can pass on to my supervisors. … You’re not in trouble. You’re not — you didn’t do anything wrong.”
Cruz-Mendez then said he would wait for the union steward to come and witness Swartz’s response to the eight questions.
Collins ruled that because Swartz was required to answer the questions and could have faced discipline, including removal, for not answering them, they could not be admitted as evidence in the trial. The Fifth Amendment guarantees that defendants’ compelled statements will not be used against them in any subsequent criminal proceeding, the ruling stated.
Collins said the threat of Swartz’s future criminal prosecution was “reasonably particular and apparent.” In addition, Swartz testified earlier that he harbored the belief that he would face a disciplinary penalty if did he did not answer the questions.
By not asking the questions until a union steward arrived, the threatened penalty was both “sufficiently coercive” and “more than merely hypothetical.” Therefore, Swartz’s statements were “compelled, coerced and involuntary,” Collins said in his ruling.
Swartz killed 16-year-old Jose Antonio Elena Rodriguez on Oct. 10, 2012, when he fired 10 times through the fence. An autopsy showed as many as eight of the bullets may have hit Elena Rodriguez while he lay on the ground.
Swartz was charged with second-degree murder in September 2015. His trial is expected to begin later this year.
The Border Patrol said the agent fired at rock-throwers. Witnesses dispute that, and point out it was implausible for rocks thrown from the Mexican side to hit someone on the U.S. side of the fence because the Mexican side is about 25 feet lower.
A separate civil suit by the family against Swartz is being litigated presently in the 9th U.S Circuit Court of Appeals.
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