Defense, prosecution agree to postpone border agent's murder trial

Border Patrol agent Lonnie Swartz won’t face a jury in his murder trial until at least March.

In a court filing Friday, Sean Chapman, his attorney, said he has asked federal prosecutors and they have no objection to scrapping the proposed Oct. 24 trial start date. The new date remains in the air.

“The parties have conferred regarding their various trail schedules and jointly request that the trial be set no earlier than the month of March 2018,” Chapman wrote to U.S. District Court Judge Raner Collins in Tucson.

He said prosecutors provided him “a significant amount of information” within the past 30 days.

“Much of the information involves witnesses and evidence critical to key issues in the case,” he told Collins.

That includes exactly which injury was fatal to Jose Antonio Elena Rodriguez, the teen Swartz shot through the border fence at Nogales, and whether Mexican authorities may have “contaminated the crime scene” by removing evidence from Elena Rodriguez, Chapman wrote. He provided no additional specifics.

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“Given the disclosure of this new information, the defense needs additional time to discuss its impact with several defense experts and conduct additional investigation,” he said.

Swartz has admitted to killing the teen in October 2012, firing multiple shots. But Chapman contends his client is innocent of the charge of second-degree murder. He claims the teen was involved in drug smuggling and had been throwing rocks at Swartz — the latter point is not disputed by prosecutors —meaning the agent was justified in his action.

Meanwhile, the separate civil suit against Swartz remains on hold awaiting the outcome of a legal dispute over a similar cross-border killing. In that 2010 case, a Border Patrol agent in Texas shot and killed a Mexican teen playing in a culvert that separates El Paso from Juarez.

In that case, the U.S. Supreme Court directed a federal appellate court to consider the issue of whether someone killed in a foreign country can file a civil suit in United States federal courts. The 5th Circuit Court of Appeals heard arguments this past week, with no deadline for a ruling.

It’s virtually certain that whichever side loses will seek Supreme Court review.

That is significant in the Swartz case because the appellate judges hearing the civil claim by Elena Rodriguez’s mother said their decision on whether she can seek wrongful death damages in U.S. courts will depend on what the nation’s high court ultimately rules in that Texas case.