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Border shooting attorney tries to stop expert’s opinion

Border fence in Nogales Arizona separating the United States from Nogales Sonora Mexico

Border fence in Nogales Arizona separating the United States from Nogales Sonora Mexico

The attorney for the Border Patrol agent who killed a teen in 2012 wants to block jurors from hearing a prosecution witness testify that the shooting was unjustified.

In new court filings Wednesday, Sean Chapman said the question of whether Lonnie Swartz had reason to shoot Jose Antonio Elena Rodriguez through the border fence in Nogales is one for the jury to decide. And he contends that makes it illegal to have the government’s expert witness testify to the contrary.

Chapman also wants U.S. District Court Judge Raner Collins to limit the testimony of other law enforcement witnesses who were involved in the incident. He said there’s nothing wrong with them telling jurors what they saw.

“But they may not offer opinion as to whether Agent Swartz’s use of force complied with Border Patrol training or policy,” he told Collins.

Hanging in the balance is whether jurors would be influenced — Chapman contends illegally — about whether Swartz is guilty of second degree murder as charged in the indictment.

Swartz admits to the shooting.

He said, though, that Elena Rodriguez was throwing rocks at him from across the border. And Chapman contends that the teen was doing that because he had been on the U.S. side of the border prior to the shooting, “probably acting as a smuggler or a scout.”

Prosecutors contend all that is legally irrelevant to the question of whether Swartz was justified in firing through the fence. An autopsy found the teen dead on the Sonora side of the border with 10 shots in his back.

In the latest legal filing, Chapman told Collins he got a letter from prosecutors saying they intend to call Alan Foraker as a “use of force” expert in a bid to convince jurors that Swartz’s use of his gun was contrary to the Border Patrol’s training and policies regarding use of deadly force.

Specifically, Chapman said, prosecutors said Foraker will testify that the use of force “was neither reasonable nor necessary,” that Elena Rodriguez did not have the opportunity and intent to inflict serious bodily harm on Swartz or anyone else, and that Swartz, who said rocks were being thrown at him, “should have made use of available cover” and that it was “neither reasonable nor necessary” for the agent to approach the border fence.

Chapman said that Foraker, assuming he really is an expert witness, can legally talk to jurors about policies, procedures and appropriate uses of force within those policies. What he cannot do, the attorney said, is give his legal conclusion on whether what Swartz did was legal.

“In this case, the jury must determine whether Agent Swartz’s use of deadly force was reasonable or excessive,” Chapman wrote. Any opinion by Foraker about that, he said, is inadmissible.

Chapman also is trying to get Collins to rein in what other officers at the scene may say during the trial which is set to begin Oct. 12.

For example, he said, prosecutors may ask agents who were at the scene about any Border Patrol policies that dictate that they seek cover when being pelted with rocks. But that, said Chapman, is not proper testimony.

“While it clearly (is) permissible for agents to testify as to what actions they took, testimony regarding their interpretation of use of force policy is inappropriate and should be precluded,” the defense attorney wrote.

Separately, Chapman on Wednesday renewed his effort to have jurors hear from a Nogales resident who will provide some information he said links Elena Rodriguez to drug smuggling operations.

Prosecutors contend none of that is relevant to the fact that Swartz killed the teen who was on the other side of the fence. But Chapman, in new filings, hopes to convince Collins otherwise.

He told the judge prosecutors have identified a witness who will suggest to the jury that Elena Rodriguez was not throwing rocks at Swartz or other agents.

“The implication of this testimony is that the decedent was not part of the effort to impede federal law enforcement from apprehending the two marijuana backpackers who were on the border fence,” Chapman wrote. “Therefore, so goes the government’s theory, Swartz was not acting in self-defense.”

But Chapman contends the testimony of the unidentified Nogales resident is relevant. And he also said a defense investigator has evidence that will show that markings found on the dead teen’s shoes are “very similar” to what would occur if a smuggler were climbing the border fence.

“This information is probative because it debunks the government’s theory that the decedent was innocently walking home (and not throwing rocks) at the time of the shooting,” Chapman wrote. “It completes the story, and supports the theory of the defense” that Swartz was acting in self-defense.

And Chapman chided Assistant U.S. Attorney Wallace Kleindienst who, in his own legal filings, told Collins that the proposed testimony is both irrelevant and inflammatory and would “prejudice the jury against the government.”

“The mere fact that the evidence is potentially harmful to the government’s case makes it neither irrelevant nor overly prejudicial,” Chapman wrote.

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