TUCSON (KGUN9-TV) - Surveillance cameras caught key video of a border patrol agent shooting through the border fence and killing a Mexican teenager. Now the agent's attorney says the video should be thrown out.
16 Year old Jose Antonio Elena Rodriguez died in the incident almost five years ago.
The teen's family says he was not part of a group of people throwing rocks over the fence to keep agents from stopping drug smugglers.
Now, the agent's attorney says the video may not clearly show what really happened.
Two Border Patrol cameras caught video of the rock throwing and the shooting.
An internal affairs investigator from Customs and Border Protection told the New York Times Magazine the video shows marijuana smugglers trying to climb the border fence.
Investigator James Tomsheck says two police officers and a Border Patrol Agent don't act like they're in danger.
He told the Times, "There are no weapons drawn. People have their hands on their hips, standing there watching."
Then he sees Agent Lonnie Swartz arrive and immediately fire through the fence.
"He fired the round in chamber, all 12 rounds in the magazine, reloaded and fired at least one additional round." He said the police officers and other agent seemed shocked and says the video showed the teenager was not throwing rocks when he was shot.
Now the lawyer defending Agent Lonnie Swartz from murder charges says that video should not be used because it is a lower quality copy and the original is gone.
If you've ever tried to email a video file from your phone you know a video file can be really really large. That's why most video involves some kind of compression. A common way to do that does involve copying pixels. If a program knows what one black dot looks like, it doesn't have to burn data describing a million black dots through that video. That one piece of data can stand in for all of the rest of that information. But in this case the defense attorney argues that sort of compression raises questions about whether that new video is really an accurate depiction of what happened."
Attorney Mike Picarretta is not on this case but has used video as evidence. He says the more prosecutors depend on the video to show fine details, the more pressure to prove the copies are accurate.
He says, "The more granular you're going into the video the more important are the details in the video, the closer you must be to the original."
Now it will be up to the judge to rule whether what the cameras saw was preserved well enough to remain a key in the case.