Federal prosecutors have decided to retry Border Patrol agent Lonnie Swartz in the killing of 16-year-old Jose Antonio Elena Rodríguez.
The decision for a new trial on voluntary and involuntary manslaughter charges was made at a hearing in Tucson’s federal court this morning. The new trial was set for Oct. 23.
Swartz was originally charged with second-degree murder in the 2012 shooting and acquitted last month by a jury of eight women and four men. But the group was unable to reach a unanimous decision on voluntary manslaughter. U.S. District Judge Raner Collins had given them the option to consider the lesser charges if they were unable to reach a verdict on second-degree murder.
Swartz has admitted shooting through the border fence in Nogales in response to a group of rock throwers, but his defense attorneys argued it was justified because it was in self defense.
The prosecution said Swartz didn’t have to use lethal force that night and instead could have taken cover or increased the distance between himself and the rock throwers as other agents at the scene testified doing.
Two of the jurors said in an interview that the decision was seven against a conviction for voluntary manslaughter and five for it and that they were deadlocked almost immediately after they started to deliberate.
For those against a conviction for the manslaughter charge, flaws in the investigation on both sides, the defense’s claim that Elena Rodríguez was part of a marijuana smuggling operation that night, and the danger of the border were factors in their decision.
But for those who favored a conviction, in part it came down to what happened after Swartz fired the first three shots. In the surveillance video, Swartz walks about eight seconds along the fence, fires 10 more shots into Mexico, takes a step back to reload and fires three more times.
The agent fired 16 shots in 34 seconds down into Mexico from three different locations along the fence. The teen was hit eight times in the back and twice in the head.
Swartz was placed in unpaid leave following his indictment in 2015.
