Border Patrol agent Lonnie Swartz found not guilty in cross-border slaying of Mexican teen

Show Caption Hide Caption Border Force: Jose Antonio Elena Rodriguez In an Arizona case, Jose Antonio Elena Rodriguez, 16, was shot 10 times in the back and head the night of Oct. 10, 2012, by one or more agents firing through the border fence into Nogales, Sonora. Agents said they were assaulted by rock throwers.

U.S. Border Patrol Agent Lonnie Swartz was found not guilty of second-degree murder in the slaying of an unarmed Mexican teenager, who Swartz shot through the border fence in a 2012 incident.

The Tucson federal court jury was unable to reach a verdict Monday on lesser charges of voluntary and involuntary manslaughter in the shooting death of 16-year-old Jose Antonio Elena Rodriguez, leaving open the possibility for a re-trial.

"I'm very disappointed for the family and for the community." Assistant U.S. Attorney Wallace Kleindienst said. "But it's not over yet."

U.S. District Judge Raner C. Collins set a status hearing for May 11 in the case. Kleindienst said that by then he hoped to have more information about where the jury split, and that based on that he would make a decision on a re-trial.

"It's too soon to tell," he added.

Swartz' attorney, Sean Chapman, declined to comment on the jury's decision, saying that the case is still not over but that "it's up to the government" what happens next.

After the judge released jurors following their verdict, they refused to comment.

'Justice was served'

Swartz remained stoic as Judge Collins read the "not guilty" verdict.

A few moments earlier, one of the prosecutors walked up to Elena Rodriguez's mother and grandmother, spoke with them briefly, and squeezed their hands. Soon after, the mother walked out of the courtroom and remained outside.

She declined to answer questions from reporters after the verdict was announced. Elena Rodriguez' grandmother walked out of the courtroom in tears. The two of them were present every day in the courtroom, walking out at times during graphic testimony.

Several Border Patrol agents showed support for Swartz during the trial as well, alternating in attendance. Among them was local union president Art Del Cueto.

"We're very pleased so far with the 'not guilty' verdict. I think justice was pretty much served." he said.

"People were committing a crime, and while they were committing a crime, they attacked a federal agent," Del Cueto added. "What did the federal agent do? He defended himself and he defended other agents."

Community groups disappointed

Several advocacy groups expressed disappointment with Monday's ruling.

A crowd of about 50 people gathered outside Tucson's federal courthouse after the verdict. They held posters of Elena Rodriguez's face, and chanted "no justice, no peace."

Several wore black veils and held candles in a sign of mourning.

“We’re extremely disappointed for the family, we were hoping that there would be some measure of justice,” said Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project who is an attorney for the family in their civil case against Swartz.

He said the family is hopeful that the U.S. 9th Circuit Court of Appeals will rule that the family can sue Swartz in federal civil court. "The family needs an avenue to obtain justice," Gelernt said.

Officials with the Kino Border Initiative, which offers services to deported and north-bound migrants in the twin cities of Nogales, said they would continue to advocate to reform Border Patrol's policies to prevent more deaths.

"Today’s verdict demonstrates the persistent obstacles to accountability in Border Patrol that remain, particularly when it comes to use of force," advocacy director Joanna Williams said in a statement.

"Despite today’s decision, we will continue to stand with the Elena Rodriguez family and all those who have fallen victim to Border Patrol abuse," she added. "We recommit to tirelessly fighting for policies and practices that could prevent future deaths."

Justified or unjustified?

After reaching an impasse last week, Collins instructed the jury that if they could not agree to a verdict in the second-degree murder charge, then they were to consider lesser charges including voluntary and involuntary manslaughter.

Both the prosecution and the defense agreed Swartz fired at Elena Rodriguez 16 times through the bollards in the border fence in Nogales, Sonora on Oct. 10, 2012.

The murder case hinged on when exactly Elena Rodriguez was killed. Swartz fired through the fence in three bursts: an initial three, 10 while Elena Rodriguez was face down on the ground, and three more after he reloaded to fire again at a prone Elena Rodriguez.

RELATED: Witnesses recount Border Patrol agent's shooting of unarmed Mexican teen

Kleindienst argued Swartz committed second-degree murder by firing at Elena Rodriguez when he was no longer a threat to him and other agents because he was already on the lying on the ground struggling to survive.

Kleindienst said thermal video showed Elena Rodriguez was still moving his arm while he was on the ground and that Swartz executed him.

Chapman argued that Swartz was justified in using deadly force because Swartz, other agents and Nogales Police officers were under attack by rock throwers.

RELATED: Lawyers for Border Patrol agent Lonnie Swartz want military past excluded

He said Swartz feared for his life because of the rocks and felt he needed to protect his fellow officers. It doesn't matter what the facts on the ground were, Chapman said, only the perception that Swartz had of the incident before the shooting.

Swartz testified he heard a Nogales police dog was hit by rocks and that another agent was hit by a rock. It doesn't matter that Nogales Police Officer John Zuniga testified his dog was not hit and a rock only rolled up and hit another agent in the shoe, Chapman said.

Swartz took the stand and gave vivid detail of events before and after the shooting. But he said his memory of the shooting itself had been "wiped away." Swartz testified that as he approached the fence, events became "distorted and gray," and as a result, he doesn't remember firing 16 shots and reloading his weapon.

Video played for the jury showed Elena Rodriguez on the ground as the agent fired 13 of the 16 shots through the border fence.

He was lying facedown on the ground and did not appear to be moving as Swartz fired two of the three volleys that hit Elena Rodriguez in the upper back, upper arms and head, a video reconstruction showed.

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