#AceNewsReport – Apr.19: That Swartz fired through the bollards in the border fence, killing 16-year-old Jose Antonio Elena Rodriguez, is not in dispute: But in their closing arguments Monday, prosecutors and defense attorneys offered diametrically opposite versions of who was at fault in the shooting: Defence attorney Sean Chapman argued that Swartz was justified in using deadly force because Swartz, other agents and Nogales Police officers were under attack by rock throwers #AceNewsDesk reports
“ It’s a gross distortion of reality that … rocks aren’t really that dangerous,” Chapman said. “You tell me what happens when a rock the size of the palm of your hand hits your eye. It’s going to take your eye out.” He said Swartz feared for his life because of the rocks and felt he needed to protect his fellow officers. It doesn’t matter what the facts on the ground were, Chapman said, only the perception that Swartz had of the incident before the shooting…………..Swartz testified that he heard a Nogales police dog was hit by rocks and that another agent was hit by a rock. It doesn’t matter that Nogales Police officer John Zuniga testified that his dog was not hit and that a rock only rolled up and hit another agent in the shoe, Chapman said.
On Oct. 10, 2017, a humanitarian group from the U.S. and Mexico walks toward the site where Jose Antonio Elena Rodrigez, 16, was shot through the border fence and killed by Border Patrol agent Lonnie Swartz. (Photo: Nick Oza/The Republic)
“ What matters is what agent Swartz believed,” Chapman said:
The crux of the argument between the two lawyers was when exactly Elena Rodriguez was killed. Swartz fired 16 times through the fence in three bursts: an initial three, 10 while Elena Rodriguez was face down on the ground, and three more after he reloaded his gun to fire again at a prone Elena Rodriguez.
Chapman argued Swartz was killed by the first volley and erred by continuing to fire when Elena Rodriguez was still on the ground. But they argue it didn’t matter because the teenager was already dead.
“By the time he got to the second location, he was shooting at someone who was dead,” Chapman said.
U.S. District Court Judge Raner C. Collins instructed the jury that if they cannot agree to to a verdict in the second-degree murder charge, then they are to consider lesser charges including voluntary and involuntary manslaughter.
Chapman also argued that Swartz had “perceptual distortions” that led him to believe he was firing at a second rock-thrower rather than Elena Rodriguez on the ground.
That position was attacked by Assistant U.S. Attorney Wallace Kleindienst who said Swartz committed second-degree murder by firing at Elena Rodriguez when wasn’t a threat to him and other agents and then by firing at Elena Rodriguez when he was already on the ground struggling to survive.
Kleindienst said thermal video showed Elena Rodriguez was still moving his arm while he was on the ground and that Swartz executed him.
“The evidence, in this case, shows for whatever reason he wanted to eliminate him as a human being,” Kleindienst said. “He’s not God. He can’t decide who lives and who dies.”
Swartz took the stand during the trial and gave vivid detail of events before and after the shooting. But he said his memory of the shooting itself had been “wiped away.” Swartz testified that as he approached the fence, events became “distorted and gray,” and as a result, he doesn’t remember firing 16 shots and reloading his weapon.
Kleindienst characterized as a fabrication Swartz’s inability to remember the shooting and the idea he had “perceptual distortions” and visualized a second shooter.
“It’s not a memory gap, it’s an integrity gap,” Kleindienst said. “He can’t admit it to you. He can’t admit it to himself.”
He called “insulting” the idea that the shots fired at Elena Rodriguez while he was on the ground don’t matter because the teenager was dead.
“He has to come up with some reason he continued to shoot,” Kleindienst said. “He can’t justify it.”
Chapman, the defense attorney, also pushed the idea that Elena Rodriguez was a member of a Mexican drug cartel who threw rocks at agents and was on the U.S. side of the border before the shooting. The prosecution didn’t dispute that Elena Rodriguez was throwing rocks.
A silent march vigil for slain Mexican teenager Jose Antonio Elena-Rodriguez, 16, was held in Nogales, Mexico, on Saturday, Oct. 10, 2015. (Photo: Nick Oza/The Republic)
During his closing argument, Chapman brought up the testimony of a defense witness who contradicted her story while on the stand.
The woman, known simply by the initials “A.O.,” lives north of the border fence near the shooting site. Chapman intended to have the woman testify that she knew Elena Rodriguez because he had gone to school with her grandson, and that she had seen him on the U.S. side before the shooting.
But when Chapman asked whether she remembered telling investigators about the slain teen’s connection to her grandson, she denied it.
“I don’t remember having said that,” she said in Spanish. Pressed about those claims to FBI investigators, the witness pushed back. “Never, I never said such information,” she said.
Similarly, when Chapman asked A.O. whether she had seen Elena Rodriguez on the American side of the border before the shooting, she responded, “No, I never said that.”
Chapman asked the witness whether she was afraid and she said she was not.
On Monday, Chapman said the woman had lied on the stand: “Why is she lying? Use your common sense. Think about where she lives,” Chapman told the jury. “Think about her willingness not to talk about this in open court.”
Rodolfo Karisch, the chief agent for the Border Patrol’s Tucson Sector, and Gov. Doug Ducey address the media regarding the National Guard deployment.He is on trial for second-degree murder in federal court in Tucson for a 2012 killing of a Mexican teenager who was gunned down in a hail of 16 bullets in Nogales, Mexico. https://t.co/TSBdwwCgvf— azcentral April 17, 2018: https://t.me/acebreakingnews/660760
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