PHOENIX — Government and defense attorneys handling the retrial of a Border Patrol agent who shot and killed a Mexican teenager in Nogales are angling to have questions asked of potential jurors that were not allowed during the first trial.
In new legal filings, Jim Calle, one of the attorneys for Lonnie Swartz, said he wants to know whether prospective jurors believe the United States is unfair in its treatment of those who attempt to come into this country without documentation. And, more specifically, jurors should be required to say whether they think law enforcement, including the Border Patrol, “treats undocumented aliens unfairly” after they are apprehended.
U.S. District Court Judge Raner Collins refused to allow those questions to be asked ahead of the first trial for Swartz, who killed 16-year-old Jose Antonio Elena Rodriguez by shooting him through the border fence.
That trial ended with jurors concluding that Swartz was not guilty of second-degree murder. But they were unable to reach a verdict on whether Swartz’s actions constitute manslaughter, setting the stage for a new trial to start Oct. 23.
Along those lines, Calle also wants prospective jurors to be asked if jurors learned anything from the first trial and whether any information they got would impact their ability to be fair and impartial.
But Calle isn’t the only one who is trying to screen jurors on issues considered important ahead of the second trial. Assistant U.S. Attorney Wallace Kleindienst hopes to weed out jurors he believes may not be sympathetic to the government’s case.
Kleindienst wants to know whether prospective jurors would be “unwilling, or unable, or find it difficult” to convict Swartz, even if the government proves its case, because he was a law enforcement officer on duty at the time of the incident. And he separately wants to ask whether they would give Swartz the benefit of the doubt in deciding his guilt because he was on duty.
Collins rebuffed a request to ask those questions ahead of the first trial. But Kleindienst, in his own legal filings, said what happened the first time suggests those questions are appropriate.
He said the defense at that trial essentially was that Swartz was doing his job defending the border from drug smugglers.
“In light of the jury’s verdict, the government is concerned that some jurors were unwilling to convict the defendant merely because he was doing his job as a Border Patrol agent making the border safe for United States citizens at the time he committed the charged offense,” Kleindienst wrote. “This sentiment would have caused the jurors to ignore the evidence at trial and the instructions given to the jury.”
And the prosecutor said the government “would be denied a fair trial” if even one juror refused to convict solely because Swartz was on duty at the time.
Much of the evidence is not in doubt.
Swartz fired his service firearm 16 times through the Nogales border fence at Elena Rodriguez, reloading once, hitting him 10 times in the back.
There also is no dispute the teen was one of several people throwing rocks over the fence. And prosecutors have not disputed that the rock throwing was done to help two people escape over the fence back into Mexico after smuggling marijuana into the United States.
All that goes to the question jurors have to decide: Why Swartz did it and whether he was legally justified.
At the first trial, jurors rejected the government’s contention Swartz acted “with malice aforethought,.”
That leaves the new trial to decide the two lesser charges on which the first jury could not agree.
One is voluntary manslaughter, generally considered to be the unlawful killing of someone during a sudden quarrel or heat of passion. The other is involuntary manslaughter, generally defined as the illegal killing of someone due to irresponsibility or recklessness.
No date has been set for a hearing to consider the requests.