Federal prosecutors are arguing against moving Border Patrol agent Lonnie Swartz’s trial, saying there’s no reason to believe he would get a fairer trial and a more impartial jury in Phoenix than in Tucson.
In new court filings Wednesday, Assistant U.S. Attorney Wallace Kleindienst acknowledged the extensive news coverage of the 2012 incident in which Swartz fatally shot a teen through the border fence, as well as of his initial trial earlier this year. Jurors in Tucson federal court acquitted Swartz of murder but were unable to decide whether he was guilty of manslaughter. Swartz has asked that the retrial be moved to Phoenix.
But Kleindienst told U.S. District Court Judge Raner Collins that all that coverage “has not been inflammatory.”
The prosecutor also noted that Swartz is claiming that having the trial in Tucson works against him because of all the news stories about immigration and border issues. But he said Swartz is mistaken if he thinks moving the trial to Phoenix will make any difference in that respect.
“The defendant’s argument provides no evidence that Phoenix District citizens feel less of an impact from border issues and simply assumes a decreased impact due to their geographical location,” Kleindienst wrote.
A trial held in Phoenix would draw jurors from Maricopa, Pinal, Yuma, La Paz and Gila counties. By contrast, prospective jurors for one held in Tucson would come from Pima, Cochise, Santa Cruz, Graham and Greenlee counties.
Put simply, Kleindienst said, the presence of the internet and social media means that “local” news isn’t confined to a community. Stories on immigration and border issues “are reported on a daily basis across the entire nation,” he said.
No one disputes that on Oct. 10, 2012, Swartz shot and killed 16-year-old Jose Antonio Elena Rodriguez through the border fence at Nogales. The only question for jurors is whether Swartz, who claims the teen was involved with drug smuggling and had been throwing rocks at him, was justified in his actions.
The new trial is set to begin Oct. 23.
Swartz, in filing a motion in July seeking to move the trial, said the April verdict “caused an eruption of protest in Tucson and Nogales that underscores and supports the granting of this motion.” He said a new trial with jurors from Southern Arizona “would be patently unfair.”
Kleindienst sees that through a different lens, calling any protests “isolated in nature.”
He also pointed out that Swartz never sought to move his first trial after five years of news articles about the shooting. He said even Swartz conceded he got a fair jury for the first trial.
But Swartz said it is precisely that “highly publicized first trial” that makes it impossible for people living in Southern Arizona “to separate their personal viewpoints from the facts of this case.”