PHOENIX — A federal prosecutor is blasting efforts to have a defense witness testify that a teen who was shot through the border fence by a Border Patrol agent was involved in smuggling drugs.
In new court filings, Assistant U.S. Attorney Wallace Kleindienst said the information, even if true, is legally irrelevant to the question of whether Lonnie Swartz is guilty of second-degree murder in the 2012 shooting death of Jose Antonio Elena Rodriguez. That testimony would, the prosecutor said, taint the jury’s view of government’s case.
Attorney Sean Chapman, who represents Swartz, wants the testimony, saying the unnamed Nogales resident will say that the 16-year-old shooting victim was not only involved in smuggling drugs when he was throwing rocks at Swartz but in fact had been on the U.S. side of the border a few minutes earlier and had been chased by Border Patrol agents.
Kleindienst, in his legal papers, told U.S. District Court Judge Raner Collins none of that matters in determining whether the Border Patrol agent, who has admitted to the shooting, is guilty of a crime.
“What is relevant is whether (Swartz) perceived that the decedent posed an imminent threat of serious bodily injury or death to the defendant or his colleagues at the moment when the defendant shot and killed him through the border fence as (Elena Rodriguez) stood on Calle Internacional in Nogales, Sonora,” the prosecutor said.
“What may have happened before then, unknown to the defendant, is of no consequence to the defendant’s knowledge and perception,” Kleindienst continued, with the only question being whether Swartz, as stated in the indictment, “with malice aforethought, and while armed with a P2000 semi-automatic pistol, unlawfully killed Elena Rodriguez.”
And Kleindienst said allowing the testimony creates other problems.
“Testimony by the witness of these irrelevant, inflammatory facts seek only to prejudice the jury against the government,” he told Collins.
Kleindienst said what Chapman wants is actually doubly damaging.
Chapman wants the witness to not have to actually appear at trial but instead testify ahead of time, out of the presence of the jury, with that preserved on videotape and shown to the jurors at trial. Kleindienst said if the witness is to be allowed to testify — something he will oppose when that question comes before the judge — it should be in person, in court, when the trial starts Oct. 12.
“If the witness is permitted to testify over the government’s objection of relevance, the jury should be allowed to evaluate the witness’s credibility in person, on cross-examination, and not on a videotape,” the prosecutor said.
Prosecutors aren’t the only ones reacting negatively to Chapman’s bid to have a jury hear what the witness has to say.
“The family categorically denies the allegations that our son, Jose Antonio, was involved in any kind of drug smuggling,” family members told Capitol Media Services through attorney Luis Fernando Parra.
“This is an effort to deflect attention from an unlawful killing by the U.S. Border Patrol.”
The basic facts of the second-degree murder case are not in dispute.
Swartz shot Elena Rodriguez in 2012 through an opening in the border fence. An autopsy concluded 10 shots hit the teen in the back.
But Swartz, on indefinite unpaid suspension, has contended he fired in self-defense, saying the boy was throwing rocks across the border.
Chapman, in his own legal filings, told Collins that what the witness will say will provide jurors “a complete picture” of what happened that night.
It starts with his claim the witness knew Elena Rodriguez and had seen him in the neighborhood as he was growing up.
On the night in question, Chapman said the witness saw Elena Rodriguez run by a house south toward the border fence.
“The decedent (Elena Rodriguez) was involved in a conspiracy to import drugs into the United States as reflected not only by his efforts to harm agents with rocks, but also by his presence in the United States shortly before the shooting,” he wrote. And that, said Chapman, is relevant to his defense of Swartz.
Kleindienst disagrees.
“Even supposing these facts are true, they have no bearing on this case,” he wrote.
The prosecutor said Swartz is not claiming that he had any prior knowledge of Elena Rodriguez prior to the agent shooting and killing him that night, nor that he believed the teen was involved with drug smuggling.
In his own legal papers, Chapman said the witness had been subpoenaed to testify when the trial was set for June 19. But he said the witness “indicated a great reluctance to testify” even after being served and that a relative was “very strict” and “will not allow” the person to show up.
Kleindienst sniffed at that “generalized reluctance to appear for trial” as an excuse to allow the witness to testify on prerecorded video.
“Most witnesses do not want to testify in a criminal case, particularly in a case like this with media attention,” he told Collins.
“That is in reality what this motion is all about,” Kleindienst continued. “If such reluctance was the basis for excusal from in-court testimony, there would be insufficient witnesses available to try defendants.”
And the prosecutor said the fact that the witness has a “strict” relative does not trump a legally issued subpoena to testify.
He also dismissed what he called “vague, unsupported allegations” of the relative’s health problems that preclude the witness from going to Tucson for the trial. Kleindienst said even if a video deposition is allowed, the witness would still have to go to Tucson for the taping in front of the judge.
“What is the difference?” the prosecutor asked.
Chapman is representing Swartz in a separate wrongful-death civil case brought against the agent by the family.
But that case remains on hold while the U.S. Supreme Court, hearing a different case, decides whether federal courts can hear claims of someone who was on Mexican soil when shot and killed.
