A coincidence in Tucsonβs federal courthouse Wednesday revealed the rules of engagement for Southern Arizonaβs 4,000 Border Patrol agents and laid out a challenge for American justice.
On the sixth floor, jurors began hearing evidence against two Mexican men accused of killing Border Patrol Agent Brian Terry in Southern Arizona.
On the fourth floor, a grand jury indicted Border Patrol Agent Lonnie Swartz for killing a Sonoran teen on the Mexican side of the border fence at Nogales.
The first was a wonder of one sort: Years after Terry was killed in Decemer 2010, these two defendants were picked up in Mexico, extradited by that government and brought to face justice here in Tucson. Federal law enforcement turns over rocks around the world to find killers of American agents.
The second was another sort of wonder: Years of painfully slow investigation finally led to an agent facing a criminal charge, second degree murder, for the 2012 killing of 16-year-old Jose Antonio Elena Rodriguez. Itβs remarkable because this sort of incident usually goes unpunished.
Terry, a member of an elite tactical unit, was killed one night when his team came across a rip crewroaming the smuggling trails west of Rio Rico, looking for drug dealers to rob or migrants to kidnap for ransom. After the firefight that killed Terry, the two men on trial today fled south across the border.
But sizable rewards were offered and U.S. assets were put to work finding them. Prompted by the FBI and Interpol, Mexican police arrested Jesus Leonel Sanchez-Meza in Puerto PeΓ±asco, Sonora β Rocky Point β on Sept. 6, 2012, almost two years after Terryβs killing. Mexico extradited him in June 2014.
A year later, Sinaloa state police arrested Ivan Soto-Barraza, the other suspect on trial this week, on Sept. 11, 2013 in the town of El Fuerte, a relatively remote place in the thick of that stateβs drug trade. He was extradited in July 2014.
Two other suspects remain at large, but the likelihood is that sooner or later theyβll be arrested, or die from their lifestyles. I covered the killing of Border Patrol Agent Alexander Kirpnick in 1998, and it took five years, four months before the final suspect was arrested, also in Sinaloa, and extradited.
For agents, the lesson is clear: If you are so unlucky as to be shot or killed in the line of duty, American investigators wonβt rest in pursuing your killers. You wonβt be forgotten.
The inverse lesson has not been so consistently taught. When it comes to agents shooting or killing border crossers, the most consistent message has been: βWe will think about whether to charge you for two or three years, keep you and the victimβs family in limbo, then finally clear you.β
To be fair, in most of the shootings, the victims have been bad guys in the act of doing bad things when shot. But some havenβt, and from an outsiderβs perspective, the killing of Jose Antonio Elena Rodriguez looked especially egregious.
Swartz emptied his pistol from atop a high rock ledge, through the tall border fence, across a street and into the body of 16-year-old Jose Antonio, who was standing outside a clinic in downtown Nogales, Sonora. The agency said Swartz fired in response to rock throwers, and, indeed, Nogales police reported that people did throw rocks there that night. But where Jose Antonio was killed, he would have had to be a Major League outfielder or NFL quarterback to threaten anybody on the U.S. side of the border with a rock.
The U.S. Attorneyβs Officeβs apparent reluctance to pursue an indictment finally disintegrated Wednesday when the grand jury handed up a simple indictment. It accuses Swartz of one crime: second-degree murder.
That sets another guideline for Border Patrol agents: Egregious acts like the gunfire into Mexico will be charged.
While those rules of engagement seem just, the outcome of the two cases will test our justice system.
At this trial, Soto-Barraza and Sanchez-Meza will be convicted β thereβs little doubt of that. They have acknowledged they were there as part of the rip crew, armed and ready to rob. The somewhat absurd defense being offered is that these two ran away when the gunfire started, and that the other members of their group fired in self defense, not being able to see who the agents were at night.
But felony murder statutes make clear that if youβre committing certain felonies with a group of people, and that felony leads to a death, you are guilty of murder whether you actually killed anyone yourself or not.
On Thursday, Agent Gabriel Fragoza took the stand and was asked detailed questions about the night of Terryβs death. I couldnβt help but feel for the guy as he was asked to recall minute, ultimately irrelevant details of that scarring experience.
βI didnβt keep track of all the subjects β I focused on the firefight,β Fragoza said. βThere were so many shots being fired, I wasnβt keeping track of who was firing.β
These two defendants are getting what seems to be a fair trial, even if their defense is weak. While we can assume theyβll be found guilty, the opposite assumption applies in the few cases of Border Patrol agents charged with shootings.
Border Patrol Agent Nicholas Corbett was charged with second-degree murder for a fatal, 2008 shooting in Cochise County. After two trials that both ended in hung juries, prosecutors dropped the case.
Prosecutors must consider the likelihood of conviction when deciding to pursue a case, so each failed prosecution of an agent makes the next prosecution of an agent a more dubious proposition, in a downward spiral that can lead to impunity. Defense attorney Sean Chapman will make the case against Swartz complicated, especially considering the problems of collecting evidence and witnesses on both sides of the border.
But if prosecutors can put the kind of energy into a case against a Border Patrol agent that they put into prosecuting people who shoot Border Patrol agents, that would prove our justice system to be truly robust.
