This article is more than 2 years old

This article is more than 2 years old

Prosecutors have announced they will stage a retrial of a US border patrol agent who was cleared on a murder charge last month after shooting a teenager 10 times through the border fence into Mexico.



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Lonnie Swartz was found not guilty of second-degree murder, but jurors were deadlocked on whether he was guilty of manslaughter. José Antonio Elena Rodríguez, 16, died four blocks from his home in Nogales after Swartz fired 16 times through the border fence which separates Arizona from Mexico.

On Friday, prosecutors confirmed Swartz would be tried again, on lesser charges of voluntary and involuntary manslaughter. A date was set for 23 October.

On the eve of the announcement, the teen’s mother, Araceli Rodríguez, spoke to the Guardian through an interpreter during a break in the monthly vigil held at the site where her son died in October 2012. “The trial for me was a fraud. It was a disappointment. It was something that was not fair, that was an injustice,” she said, describing the verdict as “unreal”.

The retrial represents a final chance at closure for the family, said Raúl Cuen, Elena Rodríguez’s uncle, whose two children grew up with the teen and his siblings.

“After we heard the verdict, we were just so full of pain. We felt the same pain as when the shooting happened,” said Cuen. “For five years we have fought and we’ve been suffering a lot,” he said.



Cuen echoed Elena Rodríguez’s mother, saying that the evidence, such as new video which showed Swartz reloading and firing from new positions after Elena Rodríguez was on the ground, felt undeniable. “We want a punishment,” Cuen said.

“That would never fix the loss we’ve had. That would never return my nephew back to us. But there would be some kind of closure,” he said.



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The Guardian did not receive a return phone call from Swartz’s lawyer by deadline.



The retrial announcement comes the same day as and from the same courthouse in which humanitarian aid volunteer Scott Warren is filing a motion to dismiss charges for which he faces up to 20 years in prison, for providing water, food and clothing to two migrants near the Cabeza Prieta wilderness area.

According to Warren’s group No More Deaths, 32 sets of human remains were found in Cabeza Prieta in 2017. A recent No More Deaths report implicates border patrol agents in the destruction of more than 3,000 gallons of water left out for migrants.



Facebook Twitter Pinterest Raúl Cuen, José Antonio Elena Rodríguez’s uncle demands a retrial at a monthly vigil in Nogales, Mexico. Photograph: Richard Boren

For Richard Boren, the two cases are intimately related. Boren has volunteered on human rights causes at the border since the death of 18-year-old Esequiel Hernández, shot by marines deployed to patrol the border in Texas, where Boren lived at the time. He now organizes in support of Rodríguez’s family and others as part of the Border Patrol Victims Network.



“The idea of sealing the border with a wall and with agents,” Boren said, “has resulted in a massive loss of life – of people who died trying to cross in more dangerous areas. And in people killed by the border patrol.”



Keeping the safety of others in mind is part of what has kept the family going, said Cuen. And, he says, they’re fighting to defend the memory of the teen whose life is rarely discussed beyond Swartz’s allegation that he threw rocks.



“My hope is that my son may always be remembered as a happy, good and studious boy whose life was unjustly taken,” said Araceli Rodríguez.



“José had so many dreams and he was such a good student. He wanted to be a soldier for his country,” said his uncle. “I saw him every day. I hugged him every day.”



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At the first trial, Swartz admitted shooting through the border fence. His lawyers said his action was justified because it was in self-defense because rocks were being thrown from the Mexican side of the border.

Swartz remains on unpaid administrative leave. After the judicial action is complete, Customs and Border Protection (CBP) will determine whether administrative action is warranted, a spokesperson with the Department of Homeland Security’s office of inspector general, part of the team that indicted Swartz, emailed.

The CBP national use of force review board will also then review the shooting to determine “whether corrective policies or training procedures are warranted”, the spokesperson wrote.



Cuen said the family expects the outcome of any internal review to be termination. “This man should not have a gun,” he said. “He should not be able to do this again to other young men in the future.”