Murder trial opens for U.S. border agent in teen's fatal cross-border shooting

Jose Antonio Elena Rodriguez, 16, was shot 10 times by U.S. Border Patrol Agent Lonnie Swartz from the Arizona side of the U.S.-Mexico border in 2012

KOLD

PHOENIX - A rare second-degree murder trial of a U.S. Border Patrol agent accused of shooting across the international boundary into Mexico and killing a teenager is set to get underway with jury selection.

Lonnie Swartz is accused of killing 16-year-old Jose Antonio Elena Rodriguez five years ago. The teenager was on the street in Nogales, in the Mexican state of Sonora, just across the border from Nogales, Arizona. An autopsy showed the unarmed teen was hit 10 times, mostly from behind.

The trial starting Tuesday U.S. District Court in Tucson comes amid President Donald Trump's crackdown on illegal immigration and his promise to build a wall along the 2,000-mile U.S.-Mexico border.

Jury selection was set for Tuesday, with opening statements either later that day or on Wednesday, said Cosme Lopez, spokesman for the U.S. District Court for the District of Arizona.

Lee Gelernt, a New York-based lawyer with the American Civil Liberties Union, said he believes Swartz will be the first border agent prosecuted by the U.S. Justice Department in a fatal shooting across the international border.

Gelernt is handling a civil lawsuit for the teen's mother, who is seeking monetary damages against Swartz.   

"This historically important trial is coming at a time when all eyes are on the border," he said.

Prosecutors say Swartz opened fire at about 11:30 p.m. on Oct. 10, 2012, through the metal poles of a 20-foot fence that sits on a 25-foot embankment above Mexico's Calle Internacional, a street lined with homes and small businesses.

About 20,000 people live on the Arizona side and about 300,000 live on the Mexico side, but the two communities linked by family members, trade and culture have long been referred to locally as "Ambos Nogales" - "Both Nogales" in Spanish.

Swartz's lawyers have said Elena Rodriguez threw rocks just before he was shot in an attempt to create a distraction for drug smugglers and that the officer was justified in using lethal force. They want jurors to visit the site at night to experience the area after dark.

Witnesses from the Mexico side of the border said they did not see the teen throw rocks and his relatives have denied he was helping drug smugglers, saying he was walking home after playing basketball.

The U.S. Attorney's Office has said it won't dispute that the boy was throwing rocks, but it's unknown if he had any link to drug smugglers. They argue an unreasonable amount of force was used.

Swartz pleaded not guilty after being indicted by a federal grand jury in 2015 and is currently on administrative leave and free on his own recognizance. The Border Patrol has not said if he is continuing to receive his salary.

Defense attorney Sean Chapman has declined to comment while the trial is ongoing. A spokesman for the agents' union, the National Border Patrol Council, did not respond to multiple requests for comment.

The case is expected to last more than a month and activists who oppose U.S. border policies say they will rally outside the courthouse.

"For so long, prosecutors have been reluctant to charge Border Patrol agents with violent crimes," said John Fife, a retired Presbyterian minister who was active in the sanctuary movement that sheltered citizens of Central American countries who came to the U.S. in the 1980s fleeing civil war. "Now we will see if they can be held accountable."

In 2015, U.S. Customs and Border Patrol internal affairs reviewed 67 shooting incidents that left 19 dead, and cleared agents of criminal conduct in all but three incidents, according to reports by the LA Times. Two agents faced disciplinary action, both  in the form of oral reprimands. 

The review had been sparked by a 2013 Police Executive Research Forum report criticizing the agency for its failure to adequately investigate deadly incidents.