Steller column: Tradition says jury in border agent's murder case won't convict

‘Can you be fair?”

U.S. District Judge Raner Collins asked some version of that question dozens of times Tuesday as a jury was chosen in the second-degree murder trial of Border Patrol agent Lonnie Swartz.

Not surprisingly, over and over, this crowd of 94 Southern Arizona residents said they could be fair. By the end of the long day, 11 women and five men were chosen as the total of 16 jurors and alternates.

As to whether they can be fair, we’ll see.

Juries in Tucson’s federal court have a long history of finding Border Patrol agents not guilty, or at least being unable to reach a unanimous verdict, in cases stemming from agents shooting people who have jumped the border in smuggling tries or illegal crossings.

In a notorious case that ended in 1992, a jury acquitted agent Michael Elmer of killing Dario Miranda, even though Elmer, strangely, moved Miranda’s body and did not report the shooting to his supervisors, leaving that to a colleague who did it 15 hours later.

In 2008, prosecutors twice tried Agent Nicholas Corbett for the shooting of Francisco Javier Dominguez near Naco in January 2007. Twice, the juries deadlocked, then prosecutors dropped the case.

Over the years here, there have been other successful prosecutions of agents, mostly for drug corruption or sex crimes, but when local juries are asked to find an agent guilty of a crime for shooting somebody who was in the country illegally, they usually decline.

“Elmer feared for his life, and that’s it,” juror Nazario Abasta told the Star after the trial in 1992. “We put ourselves in that situation. We closed our eyes. It wasn’t a slow-motion deal. He done what was proper in my book.”

Those cases, of course, took place well before the Trump era. Swartz is going on trial with issues of immigration and border security dividing the country. And his alleged crime could hardly touch on more sensitive issues.

On Oct. 12, 2012, Swartz arrived at the border fence west of downtown Nogales, Ariz., amid a smuggling attempt and rock-throwing. Swartz fired through the fence into Mexico at Jose Antonio Elena Rodriguez, a 16-year-old who lived nearby. Prosecutors aren’t contesting that Elena Rodriguez may have been involved in the smuggling effort or in rock-throwing. What made the shooting hard to justify was that Swartz was behind a tall fence, which sat atop an approximately 25-foot rock face, and fired across the street in Nogales, Sonora, to kill Elena Rodriguez.

How the teen could have posed a danger from the place where he was shot, well inside Mexican territory, will be a key issue.

Yet any fair cross-section of our community will include people certain that Border Patrol agents are keeping us safe from mortal danger, and others who believe agents are lawless racists. The former will tend toward acquittal, the latter toward conviction.

These concerns were evident in the questions that defense attorneys and prosecutors put on questionnaires potential jurors answered before being called in to court on Tuesday.

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The defense requested, for example, that potential jurors be asked:

“Do you feel you have ever been singled out by the Border Patrol because of how you look?”

And: “Have you written or called any elected or appointed government official to express your opinion about illegal immigration or drug smuggling, the Border Patrol or other related issues?”

And prosecutors wanted potential jurors asked, for example:

“Do you believe that law enforcement officers should be permitted to use deadly force, even if not legally justified, to stop individuals from smuggling illegal drugs into the United States at the International Border with Mexico?”

And: “Have you or a family member ever supported and/or belonged to a group or organization that provides a physical presence along the International Border with Mexico to assist law enforcement in stopping illegal immigration and/or the smuggling of illegal drugs?”

Judge Collins did not delve into such detailed questions publicly, preferring to pull individual jurors aside into private sidebars with the attorney to question them in more detail.

He did, however, inject his usual lighthearted manner into the tedious proceedings, cracking jokes and making light of himself, keeping the crowd of potential jurors from as far away as Pima, near Safford, from fading into sleep.

“Thank you for coming,” he told the jurors as the day opened. “I know you felt you didn’t have a choice. You didn’t.”

And when he called up the attorneys for one of innumerable sidebars, he said, “I consult with my lawyers before I make my decision. It makes me feel important.”

Often, the room broke up at Collins’ cracks. Even Swartz’s attorneys, Sean Chapman and Jim Calle, laughed. But there was one person who never cracked a smile or responded to the levity.

Swartz, dressed in a dark suit, with well-coiffed, short red hair, remained serious throughout. He looked like, when opening statements begin at 9:30 a.m. Wednesday, his future will be on the line.

It is, of course.

But if the past holds any clues to how this case will play out in a country divided over immigration and border security, those factors suggest there will be at least one juror who stands his ground and says, as Abasta did in 1992, “He done what was proper in my book.”