Border Patrol agent Lonnie Swartz testified today how he didn’t remember much of what happened after he fired his weapon into Mexico the first two times, killing 16-year-old Jose Antonio Elena Rodriguez.
“I’ve tried to remember ever since that night, I don’t know why, ” he told Sean Chapman, one of his two attorneys. “I’ve struggled with this for five-and-a-half years. I want to remember. It’s a piece of my life wiped away and I can’t get it back.”
“Does it bother you?” Chapman asked him. “Yes,” the 43-year-old agent responded.
In a surprise move, the defense called Swartz, who is charged with second-degree murder, to testify first thing this morning after their first witness last week contradicted herself on the stand.
Swartz fired 16 shots through the border fence in 34 seconds in response to a group throwing rocks at agents from Mexico to help two alleged drug smugglers jump the fence. Elena Rodriguez was hit 10 times, eight in the back and twice in the head.
Surveillance videos show Swartz approaching the fence, firing three times, then moving up about 45 feet, shooting 10 more times, stepping back to reload and firing three more shots.
The prosecution wrapped up their nearly three weeks of testimony last week.
Swartz, a former construction worker in Las Vegas, joined the Border Patrol in 2010 and was stationed in Nogales, where he eventually became a firearms instructor.
During his more than two-hour testimony, Swartz went over how they are trained in the Border Patrol to consider rocks as potentially deadly weapons, a point his defense has made throughout the case. He also pointed out how he knew of two agents, one in Texas and one in Nogales, who had suffered major damage as a result of rocks being thrown at them.
That night, Swartz testified, he heard rocks hitting the fence, a fellow agent said he had been hurt and another agent told a Nogales police officer that his police dog had been hit. All of that, combined with the fact that one of the alleged drug smugglers climbing the fence had a large knife in his pocket, painted a dangerous situation in an area along the border known for drug smuggling.
“I think we are getting rocked,” Swartz testified hearing agent Shandon Wynecoop say. “What?” Swartz asked. “I think we are getting rocked,” he said the agent responded.
Then, Swartz said he heard the agent say, “Shit, I’m hit,” before leaning down towards his right leg.
Swartz testified to hearing a loud thud, a sound that is “hard to compare to something,” he said, and an agent behind him yelling to the police officer, “your dog’s been hit, your dog’s been hit.”
Wynecoop testified earlier in the trial that a rock had fallen and rolled onto his foot but that he didn’t recall saying anything about getting hit.
Nogales Police officer John Zuñiga said a couple of weeks ago that an agent told him his dog had been hit but that he didn’t find any injuries on the animal and didn’t believe that had been the case. When asked by the prosecution whether he or his dog needed defending that night, the officer said no.
Swartz told the jury while he was aware the first rock thrower was on the ground after he fired the initial shots, everything started getting “gray and distorted” after that point.
“I am not a head doctor,” he said, “I don’t know why.”
He couldn’t remember how far he had moved up the fence, nor how many shots he had fired, that he reloaded his weapon and fired again, Swartz testified. He just knew he perceived a second rock thrower.
But he remembered calling on the radio to say there was someone down on the Mexican side and walking away to a light pole.
“I threw up uncontrollably,” he said as he starts crying and softly apologizes as he wipes his eyes. “Why?” asked Chapman. “Because I had just discharged my weapon at a human being.”
In cross examination Assitant U.S. Attorney Wallace Kleindienst pushed back.
“Don’t you think it’s a convenient way not have to account for your actions that night?,” Kleindienst asked Swartz.
How come Swartz could remember what the other agents had said, calling on the radio and what he said, but couldn’t remember where he had seen a second shooter or how many rounds he had fired or that he had reloaded his weapon.
“All I can tell you is what I remember that night, sir,” Swartz repeatedly said in response to Kleindienst’s questions.
In the Border Patrol, agents are not trained to shoot at anybody who is on the ground and not a threat anymore, Swartz said. “I would never intentionally fire upon anyone who didn’t pose a threat.”
Kleindienst asked whether he was crying for himself or for the person he had killed.
“Because I discharged my weapon at a human being,” he responded.
“I don’t ever feel good about that ever. That was the only thing in my belt that night to stop the rocks,” he continued visibly emotional. “I dont’ know how many rocks … my partner’s been hit and I’m going to defend myself and I’m going to defend my partner.”
The defense will continue this afternoon with testimony from expert witnesses.
