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2:57 AM Sun, Nov. 18th

New trial in 2012 border shooting set for October

Mexican youth Jose Antonio Elena Rodriguez, 16, was allegedly shot and killed by Border Patrol agents in October 2012. A U.S. border patrol agent was found not guilty of second-degree murder, and will be going to trial for manslaughter Oct. 23, 2018. (Daily Miner file photo)

Mexican youth Jose Antonio Elena Rodriguez, 16, was allegedly shot and killed by Border Patrol agents in October 2012. A U.S. border patrol agent was found not guilty of second-degree murder, and will be going to trial for manslaughter Oct. 23, 2018. (Daily Miner file photo)

PHOENIX – Government and defense attorneys are angling to have questions asked of jurors in the second trial of a Border Patrol agent that were not asked the first time, each in hopes of getting an outcome they want.

In new legal filings, Jim Calle, one of lawyers for Lonnie Swartz, said he wants to know whether prospective jurors believe that 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 of Swartz who killed 16-year-old Jose Antonio Elena Rodriguez by shooting him through the border fence.

That trial ended up 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 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 he considers important ahead of that second trial. Assistant U.S. Attorney Wallace Kleindienst hopes to weed out jurors that he believes may not be sympathetic to the government’s case.

Kleindienst specifically 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 weapon 16 times through the Nogales border fence at Elena Rodriguez, reloading once, hitting him 10 times in the back.

There also is no dispute that 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 that jurors have to decide: Why Swartz did it and whether he was legally justified.

At the first trial, jurors acquitted him of second degree murder, rejecting the government’s contention that he acted "with malice aforethought," defined in law as acting “either deliberately and intentionally or recklessly with extreme disregard for human life."

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.

While Kleindienst is worried about juror bias in favor of law enforcement officials, Calle has concerns about a different bias: jurors who might look at the case through the lens of whether they think illegal border crossers and those in the country without documentation are treated fairly.

"The types of bias addressed ... may have laid dormant in past years but in our current highly polarized society they are much more likely to manifest themselves,’’ Calle told the judge. He said forcing prospective jurors to answer those questions will give them "a greater opportunity to reflect on their underlying biases so that their answers will identify them as being potentially unable to follow the law as provided by this court."

Calle, in his legal filings, also defended his bid to question jurors about what they may have heard – and potentially already decided.

“This question addresses the reality of and the possible influence of the substantial media coverage and inflamed passions that resulted from the first trial,’’ he said. ”The defendant is entitled to a fair trial and this question is merely intended to help ensure that prospective jurors who learned about the first trial are not harboring opinions or passions’’ that would be unfair to Swartz.

No date has been set for a hearing to consider the requests.