Cross Border Killing: Prosecutors won't dispute teen was throwing rocks

TUCSON (KGUN9-TV) - The family of a Mexican teenager shot and killed through the border fence had claimed he was not involved in drug smuggling when a Border patrol agent killed him.

Now government lawyers prosecuting that agent for murder say they will not dispute 16 year old Jose Antonio Elena Rodriguez was helping drug smugglers that night.

Rock throwing over the border fence is a key part of the second degree murder case against Border Patrol Agent Lonnie Swartz.  This is not video from the night Swartz shot through the fence and killed sixteen year old Jose Antonio Elena Rodriguez but there is surveillance video from that night.  Swartz's defense has been trying to exclude surveillance video from the trial, claiming the video data was so highly compressed it does not give an accurate depiction of what happened.

The night of the shooting now five years ago, Border Patrol Agents and Nogales, Arizona police were trying to stop drug smugglers who had just dropped a drug load in the U.S. from making it over the fence and back into Mexico.

People on the Mexican side were throwing rocks to interfere with the agents and police.  

Agents are trained to regard rocks as dangerous enough they may justify deadly force in response.  Border Patrol puts steel mesh over vehicle windows to protect agents from rocks.

Elena Rodriguez family had said he did nothing wrong that night.  They have a civil suit against the agent.  The family's attorney says there will be no comment on elements of the criminal trial.

Now through court documents, federal prosecutors say in the criminal case, “The government will not dispute at trial that J.A.E.R. (Jose Antonio Elena Rodriguez) was one of apparently three individuals who, based on the video, were throwing rocks over the fence.” And the government will not dispute that was to assist two smugglers trying to get over the fence and back into Mexico.

Earlier, Lonnie Swartz lawyers said the teen’s actions and the danger of rock throwing are important to the Agent’s claim of self defense.  Swartz’s lawyers complained the government “...wants to leave the jury with the impression that the decedent (Elena Rodriguez) was peacefully walking home when he was shot---maybe he picked up a rock and threw it out of a generalized animosity towards American law enforcement---maybe not.”

But the government says it does not matter whether the teen was involved in smuggling. It says what does matter is “...whether J.A.E.R.(Jose Antonio Elena Rodriguez) presented a threat of serious bodily injury or death by throwing rocks into the United States regardless of his motives.”

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