The 16-year-old Mexican teen killed by a Border Patrol agent in 2012 moved after he fell to the ground and the agent continued to shoot, an expert witness testified at the agent’s murder trial Wednesday.
Prosecutors argue Jose Antonio Elena Rodríguez was alive when Border Patrol agent Lonnie Swartz repositioned himself along the border fence in Nogales and kept firing. The teen was hit 10 times, eight in the back and twice in the head.
But the agent’s defense attorneys say they will show how Elena Rodriguez died from one of the first shots the agent fired — which he claims were justified— making the rest irrelevant.
The government charged Swartz with second-degree murder. The indictment said he “with malice aforethought, and while armed with a P2000 semiautomatic pistol,” unlawfully killed Elena Rodriguez on Oct. 10, 2012. Prosecutors must prove Swartz acted deliberately or recklessly with disregard for human life.
Pictures taken by Mexican officials that night show Elena Rodriguez facing the building to the left, with the border fence to his right. But the teen had abrasions on the left side of his head, indicating that when he fell on the sidewalk he hit his left side.
That could be explained, testified Tom Bevel, a forensic analyst, by the head moving to the other side after Elena Rodriguez fell to the ground. Bevel, who is based in Oklahoma, specializes in bloodstain spatter analysis and incident reconstruction.
Elenea Rodríguez’s left forearm also had a ribbon of blood across it but no wound nearby. Bevel said he concluded the teen had his arm up when shot and moved it to the tucked in position seen on the photographs after the fact. Three bullets could also be seen pushing the skin out of the left upper arm in the autopsy photographs.
Bevel also identified blood and tissue spatter on the wall within 12 inches from the ground where the body was found, meaning he was close, or on the sidewalk when the wounds that caused that spatter where inflicted, he said.
Sean Chapman, one of the attorneys representing Swartz, asked Bevel if he knew someone had previously testified that a Mexican official may have kicked the body and whether that would change his testimony.
“If the body is kicked, could it create its own spatter?” Chapman asked, or could the position be changed. “If sufficiently hard, yes,” Bevel responded.
But he also said, in response to a question from the prosecutors, that he didn’t see anybody kicking the body in the surveillance video.
On Wednesday, jurors also saw images of what the location of the shooting looks like from the Mexican side. The sidewalk where Elena Rodriguez was killed, the street next to it, the 14-foot cliff, followed by the 22-foot border fence from where Swartz shot through the bollards.
A forensic expert, Lucien Haag, showed the jury the different shapes of the bullet when they hit something soft, like a body, versus a wall, and how the pistol is fired and reloaded. Assistant U.S. Attorney Wallace Kleindienst used that to point out how it had to be “a conscious decisions to fire each time,” to reload and recover from the recoil of the pistol.
A juror was also dismissed Wednesday due to personal matters, leaving 10 women and five men, including the alternates.
An expert witness who created an animation of the scene will continue testifying Thursday and court will resume next week with testimony from Mexican officials, including police officers and two pathologists.
