Border Patrol agent Lonnie Swartz will be tried again in the killing of 16-year-old Jose Antonio Elena Rodríguez.
Federal prosecutors announced their decision for a new trial on voluntary and involuntary manslaughter charges at a hearing Friday in Tucson’s federal court. The trial is scheduled to start Oct. 23.
Swartz, originally charged with second-degree murder in the 2012 shooting, was acquitted of that charge on April 23 by a jury of eight women and four men. U.S. District Judge Raner Collins gave them the option to consider voluntary and involuntary manslaughter if they were unable to reach a verdict. But after four days of deliberation, the jurors told the judge they couldn’t reach a unanimous decision on the lesser charges.
Assistant U.S. Attorney Mary Sue Feldmeier said she couldn’t comment on the government’s decision to retry the case. But Sean Chapman, one of two defense attorneys representing Swartz, said he wasn’t surprised.
“It’s typical in a homicide case where there was a mistrial on some counts,” he said.
Federal district courts in Arizona are already working at capacity and can’t take more prosecutions, their chief judge said Monday. He was responding to the U.S. attorney general’s announcement that the Department of Homeland Security is now referring 100 percent of unauthorized border crossings for prosecution.
“We can only do what we do now,” said U.S. District Court Judge Raner Collins. “We are at our limit.”
In fiscal 2017, more than 14,000 people were sentenced to prison for crossing the border illegally (entry and re-entry) in the District of Arizona, according to data compiled by the Transactional Records Access Clearinghouse at Syracuse University.
Last fiscal year, the Border Patrol made nearly 39,000 apprehensions in its Tucson sector and close to 13,000 in its Yuma sector — numbers that could potentially mean doubling the number of prosecutions if everyone is prosecuted. While a person can be apprehended more than once in a given year, the recidivism rate among the agency’s arrestees has decreased significantly over the years.
“If you cross this border unlawfully, then we will prosecute you,” Attorney General Jeff Sessions said Monday. “It’s that simple.”
This includes parents who come with their children. “If you are smuggling a child, then we will prosecute you and that child may be separated from you as required by law,” Sessions said. “… So if you’re going to come to this country, come here legally. Don’t come here illegally.”
In the first four months of the year, the Florence Immigrant and Refugee Rights Project, an Arizona-based organization that provides free legal services to those in immigration detention, has seen 135 cases of parents separated from their children, said Lauren Dasse, the group’s executive director. It had 213 cases in all of 2017, she said, up from 190 the previous year.
“We have concerns, especially when we talk about prosecuting every single immigrant,” Dasse said.
After sitting in a courtroom and listening to evidence for four weeks, a Tucson jury was deadlocked almost immediately on whether to convict Border Patrol agent Lonnie Swartz — a reflection of the strong divisions in society when it comes to law enforcement and the border.
Swartz, 43, was indicted in 2015 after firing 16 shots through the border fence at Nogales in response to rock throwers, killing Jose Antonio Elena Rodríguez. The 16-year-old Mexico native was hit eight times in the back and twice in the head.
While the decision to not convict the agent on a second-degree murder charge was quick, the jurors couldn’t agree on two lesser charges: voluntary manslaughter and involuntary manslaughter, two jurors said in interviews.
“We felt second-degree was not an appropriate sentence for him,” said Heather Schubert.
Federal prosecutors will consider whether to retry Border Patrol agent Lonnie Swartz on lesser charges after a jury acquitted him Monday of second-degree murder in the 2012 death of a Mexican teen.
“We are very disappointed for the family, for the victim and for the community,” said Assistant U.S. Attorney Wallace Kleindienst outside the federal courtroom in Tucson after the verdict, which was followed by protests that blocked downtown streets into the night.
After nearly five days of deliberations, the jury of eight women and four men also told the judge it was hopelessly deadlocked on the two less-serious charges it was considering against Swartz, voluntary manslaughter or involuntary manslaughter.
Kleindienst said prosecutors will assess what was going through the jurors’ minds before deciding whether to retry Swartz on the manslaughter charges.
“It’s too soon to tell,” he said. “We all might be back here again.”
Swartz was charged in the October 2012 killing of 16-year-old Jose Antonio Elena Rodríguez of Nogales, Sonora. The agent is accused of firing 16 shots through the Nogales border fence in response to a group of rock throwers, including Elena Rodríguez, who was hit eight times in the back and twice in the head.
For prosecutors, Border Patrol agent Lonnie Swartz was the man who in the span of 34 seconds fired 16 shots through the border fence, killing an unarmed Mexican teenager.
To the defense, he was an agent scared to death, operating in a busy drug-trafficking area, who had to make a split-second decision to protect himself and his fellow law enforcers from a group of rock throwers — including 16-year-old Jose Antonio Elena Rodriguez.
The government and defense presented their cases in U.S. District Court in Tucson over four weeks. On April 23, the jury found him not guilty of second-degree murder and couldn’t reach a verdict on voluntary manslaughter and involuntary manslaughter.
The government decided to retry Swartz on the lesser charges. The new trial is scheduled for late October.
Follow my coverage of the case below. Latest story is first.
The Arizona Daily Star, with support from the Community Foundation for Southern Arizona and the USC Annenberg Center’s Fund for Journalism on Child Well-being, investigated how Arizona came to have one of the nation’s highest rates of child removal, and how we can keep more kids at home by helping at-risk families break generational cycles of trauma, neglect or abuse.
Four Star journalists talked with more than 100 local, state and national leaders in reform. They visited six U.S. states to see what programs are working to support families at home, transform child safety agencies and guide children and families to a healthy future.
After months of tough campaign rhetoric, the Trump administration touted a steep decline in border-crossing arrests as evidence of a “new era.”
In Arizona, the arrest of an unauthorized immigrant at a Pima County court and a raid on a humanitarian aid camp near Arivaca offered further signs of an immigration crackdown.
But what exactly has changed along Arizona’s border with Mexico?
Federal immigration agents have arrested people at courthouses before.
The Arivaca camp raid wasn’t the first of its kind; Border Patrol agents also raided it in 2014.
And while arrests of border crossers did plummet after Trump took office in January, they had been declining for years. In 2016, there were 65,000 apprehensions in the Border Patrol’s Tucson Sector, down from more than half a million in 2000.
The truth is, Trump officials are not so muchtaking border enforcement in a radical new direction as they are tweaking the formidable border security machine built during the Bush and Obama administrations.
So Southern Arizonans without legal status find themselves in a familiar position: trying to figure out the new rules. While campaign bluster about mass deportations has subsided, the federal government is threatening to deport non-criminals living in this country illegally and is prosecuting first-time crossers, something that had largely stopped under Obama.
Scaling up those efforts would be monumentally difficult. The U.S. doesn’t have enough judges, immigration officers or detention space for mass deportations.
The Arizona Daily Star spoke with about three dozen faith leaders, school administrators, organizers, law enforcement officials, lawyers, service providers and immigrants, and gathered data from law enforcement agencies and courts to see what has changed — and what hasn’t — under the new administration.
The Star found that while people are scared, they are not hiding. Instead, they are taking steps to prepare themselves and their families in case they are stopped by a local police officer or get a knock on their door from immigration authorities.
They already know they have to be ready, particularly in the seven years since Arizona passed Senate Bill 1070, one of the toughest immigration laws in the country.
Attendance is up at citizenship prep classes and know-your-rights workshops put on by the Mexican Consulate and grassroots organizations. Families are developing plans to protect U.S.-born children in case their parents are deported.
Some schools saw a slight dip in enrollment after Trump was elected, but for the most part fears subsided and attendance rebounded after principals and teachers reassured students they were safe at school.
Trump’s plan to build a “big, beautiful” wall is proceeding, but not yet on the widely fenced and heavily patrolled border in Arizona. And in recent months, he has said we may need only 1,000 miles of border wall because the rest — another 1,000 miles — already has natural barriers like mountains and rivers.
In Tucson’s federal court, first-time illegal crossers now face criminal charges, but criminal immigration prosecutions are fewer than they were during most of the Obama administration largely because the number of crossers is so much smaller now.
Local sheriff’s departments are holding fewer people for federal immigration officers, and police are not checking as many people’s immigration status, as required by SB 1070, after a state attorney general opinion said an Arizona ID or driver’s license is sufficient proof of legal status. The opinion emphasized that local authorities can’t detain people just to check immigration status.
While Border Patrol agents are catching fewer crossers, Immigration and Customs Enforcement officers are arresting more people already in Arizona. ICE arrests are up nearly 13 percent in the state from January through April compared to the same period in 2016. But that’s still 26 percent below what was reported in 2014.
And Trump’s announced crackdown has run into predictable obstacles, such as the intractable backlog in immigration courts that stymies deportations. Those challenges persist even though two more immigration judges were assigned to Arizona and attorneys say judges are moving through cases faster.
Considering all that, the Trump administration faces a steep climb in realizing a “new era” in border enforcement.
Seven months into Trump’s administration — despite the rhetoric — the Arizona border remains largely as it was before he took office.