Heading into its third week, the trial of the Border Patrol agent accused of killing an unarmed 16-year-old Mexican teen will include testimony from Mexican officials, including two pathologists and police officers, the prosecution has said.
Since opening statements, Lonnie Swartzβs defense has argued that the investigation has been flawed and full of mishaps on both sides of the border.
Last year, Sean Chapman, one of the two attorneys representing Swartz, claimed that prosecutors had kept critical evidence from him. He said Dr. Javier Diaz, a Mexican doctor who performed an autopsy on Jose Antonio Elena RodrΓguez, told prosecutors in 2014 that the teen was killed by one of the first bullets, making the rest legally irrelevant.
The order in which the bullets struck the teen is central to the argument that Swartz β who fired 16 shots in 34 seconds, hitting the teen 10 times in the back and head β cannot be guilty of murder because he used only the necessary force to respond to rock throwers across the border.
The governmentβs theory, supported by an expert witness who testified last week, is that after the first volley of shots, Elena RodrΓguez fell but was still alive and no longer a threat when Swartz continued firing.
The prosecution is not contesting that Elena RodrΓguez was among the three people throwing rocks that night.
Chapman also contends that the surveillance video from the night of Oct. 10, 2012, shows what looks like a Mexican official kicking the body and another moving as if they are picking something from the ground and putting it in their pockets.
Here are some highlights from testimony from the last two weeks:
Animated reconstruction
A 3-D animation of the shooting shows a figure identified as Elena RodrΓguez making a rock-throwing motion before Swartz starts to shoot the first rounds. The figure, depicted by a red rectangle, is then seen moving 16 feet back and falling onto the sidewalk before the end of the third shot. Swartz is then seen moving 45 feet to the right, shooting 10 more rounds, stepping back to reload and putting his pistol through the fence again to fire three more shots, while the teen is already face down on the ground.
The defense has said Swartz thought he was shooting at a second rock thrower, but the animation shows the other figures moving to a side street around the corner, away from Elena RodrΓguez.
James Tavernetti, a forensic animator, used 3-D laser-scanned data, footage from surveillance cameras and photographs to reconstruct the scene. He used icons to demonstrate how Swartz and the rock throwers moved through the crime scene because he didnβt have enough information to show precisely how they moved their heads and arms, he said. Prosecutors spent part of Thursday and all of Friday morning going over how Tavernetti created the animation.
Last year, the defense argued against the admission of the video, saying it was unreliable. Defense lawyer Jim Calle questioned Tavernetti regarding the compression of the video used, frame rates and the use of footage from infrared cameras, which is at times blurry.
He also questioned Tavernetti on Friday about where the other two rock throwers, who are not caught on the video, had gone.
βThey didnβt go off screen, they are behind an object,β Tavernetti said. βBut you donβt know that,β Calle countered.
At one point, Calle asked if Tavernetti could see a fourth rock thrower, to which Tavernetti said he couldnβt, based on the footage.
Tense situation
A Nogales, Ariz., police officer who responded to the scene the night of the shooting with his police dog said that while the situation was tense, neither he nor his dog needed defending that night.
While some Border Patrol agents told him that his dog had been struck by a rock and testified that they either heard the dog make a sound or move as if it had been struck, John ZuΓ±iga said he didnβt see his dog being hit. He also said he couldnβt find any injuries when he checked him later that night, nor were any found a few days later at a veterinarianβs office.
In his opening statement, Chapman said Swartz had heard a fellow agent and the police dog being hit by rocks. He described a scared Nogales police officer who had used his dog as a shield, lifting his arms, as if the officer had lifted the dog over his head for protection.
That night, ZuΓ±iga was trying to use his dog to get two alleged drug smugglers off the fence, telling them, βCome down, itβs dangerous,β but they didnβt respond, he testified. Instead, the officers started getting hit by rocks from the other side.
ZuΓ±iga said he and his dog, Tesko, took cover behind his vehicle and at some point, he couldnβt remember when, he put his dog inside his kennel to protect him from gunfire. The officer then took cover between a tree and a brick wall, βhunkered in there,β until the shots were over.
Frantic state
Leo Cruz-Mendez, a Border Patrol supervisor assigned to the Nogales station in 2012, also offered some new details of Swartzβs state after the shooting.
βHe (Swartz) was focusing on that fence, blocked on that fence,β said Cruz-Mendez, who now works in the Washington, D.C., area at the Customs and Border Protection National Targeting Center.
βI approached him and touched his shoulder, I want to calm him down, reassure him that nothing physically is going to happen to him,β he said. βEverything will be OK,β he said he told Swartz, who looked up, turned to the side and started vomiting.
Swartz was in a frantic state, Cruz-Mendez said. βYou donβt understand, you donβt understand,β he said Swartz told him and rambled on about two bundles, two smugglers on the fence, rocks being thrown at him and that he had fired his weapon and there was someone dead. βA K-9 had been hurt, a K-9 had been hurt,β he said Swartz repeated.
During the first two weeks, prosecutors questioned the handful of Border Patrol agents and two Nogales, Ariz., police officers at the scene that night, as well as forensic experts and the law enforcement officials who processed the scene and supervisors.
