The attorney for a Border Patrol agent on trial for shooting and killing a teen through the border fence wants jurors to visit the site — at night — to get an idea of what his client saw.
In new court filings, attorney Sean Chapman said the fence along the international border is unique. He told U.S. District Court Judge Raner Collins that even area residents who will sit in judgment of agent Lonnie Swartz are “unlikely to be familiar with the nature of the border fence or the precise location where the shooting occurred.”
The filing comes as both Chapman and federal prosecutors seek to set the stage for Swartz’s trial in Tucson.
He is charged with murder in the 2012 death of 16-year-old Jose Antonio Elena Rodriguez.
Chapman won one pretrial argument on Friday as Collins precluded prosecutors from introducing any evidence about Swartz’s military record and, specifically, the fact that he was discharged under less-than-honorable conditions in 1998 rather than face a court-martial for going AWOL.
In arguing for its use, Assistant U.S. Attorney Wallace Kleindienst told Collins he did not plan to bring it up by itself. But the prosecutor said it could become relevant if Swartz takes the stand and the government wants to challenge his credibility.
He said that Swartz, in applying to become a Border Patrol agent in 2009, concealed both his AWOL status and subsequent arrest.
In fact, Kleindienst said, when Swartz was asked about his military background, “He falsely wrote that he ‘enlisted at 19 at father’s insistence’” and that he quit after “my immaturity won out.”
“The jury should be appraised of those statements in evaluating his credibility on the witness stand,” the prosecutor argued.
“The fact that these statements were made when he applied to become a Border Patrol agent, and thereafter to continue in that position, make them particularly germane to this case which involves his conduct as a Border Patrol agent.”
Collins, however, was not convinced, pointing out the records are more than 10 years old.
One prosecution motion still pending would permit Kleindienst to inform the jury that Swartz is on leave from the Border Patrol without pay. Chapman contends there’s no reason for that to become part of the trial.
“The risk of prejudice and jury confusion exists because the jury is likely to infer that the Border Patrol’s action in placing Agent Swartz on ‘leave without pay’ status means the agency reached a conclusion that he did something to violate the agency’s policies, including the Use of Force policy that is central to this case,” the defense attorney wrote to the judge.
That question is crucial.
Swartz is not denying that he fired through the border fence. An autopsy performed in Mexico concluded Elena Rodriguez was shot 10 times in the back.
But Swartz says Elena Rodriguez had been throwing rocks at him and was part of an effort to smuggle drugs across the border.
All that relates to Chapman’s efforts to have the jurors see what Swartz may have seen that night.
“The government is asking the jury to convict Agent Swartz based on a split-second decision that he made at night in an incredibly dangerous area of the international border,” the defense attorney said.
Chapman noted that prosecutors want to present video and photographic recreations of the scene to determine what Swartz saw or perceived.
“Since the issue is so significant to the parties, the jury should have the opportunity to observe at night what the area actually looks like,” Chapman said.
He said the density of vegetation in the area, the buildings and narrow streets of Nogales, both in Arizona and Sonora, “are particularly relevant to the issues in this case.”
“The venue is unlike ‘the desert,’ a hospital, streets or highways, or other places where crimes occur, that are within the common experience of most jurors,” Chapman wrote. Collins has not indicated when he will rule.
The trial is to begin March 20.
