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Attorney: Prosecutors withheld evidence in border shooting

Mexican teen died with first shot, so the other 12 shots are irrelevant, he argues

A Border Patrol agent responded to rocks being thrown over the border fence by firing his weapon. (Stock)

A Border Patrol agent responded to rocks being thrown over the border fence by firing his weapon. (Stock)

PHOENIX — The attorney for the Border Patrol agent who shot and killed a Mexican teen is claiming federal prosecutors are guilty of “withholding and manipulating” critical evidence that could prevent his client from getting convicted.

In new court filings, Sean Chapman says a Mexican doctor who had performed an autopsy on Jose Antonio Elena Rodriguez told prosecutors in 2014 that the victim was killed by the first bullet that hit him in the head. Chapman said the other shots he admitted that Lonnie Swartz fired in the 2012 incident came later.

Chapman said, though, that information was provided to him just recently even as he is preparing for the Oct. 24 trial.

The attorney said the question of what order the bullets struck the teen is central to his contention that Swartz cannot be guilty of murder because he used only the force necessary to respond to rocks being thrown at him from across the border fence.

But to get the jury to believe that argument, Chapman said in his pleadings that he needs to show that the teen “was fatally injured with one of the very first shots while he was an active threat.” And that, he argued, makes any other shots — prosecutors said Swartz fired at least 13 times, including stopping to reload — legally irrelevant.

“Agent Swartz is not criminally liable for Elena Rodriguez’s death, even if he continued to fire at him after he was killed, and collapsed on the ground,” Chapman told U.S. District Court Judge Raner Collins.

Chapman said what Dr. Javier Diaz Trejo told a prosecutor in 2014 is important because it contradicts the government’s theory that the teen was first shot in the back, which paralyzed him and caused him to fall to the ground, at which point Swartz continued to fire until the teen was dead.

Chapman is doing more than complaining to Collins.

He said the government’s decision to withhold not only the prosecutor’s notes of her 2014 interview with the doctor but also details from the original 2012 autopsy report means that the U.S. Attorney’s Office for Arizona cannot prosecute Swartz. Chapman said that’s because he will be calling the prosecutor as a witness in an effort to undermine the case being presented by her colleagues.

Potentially more significant, Chapman wants Collins to preclude the government, having withheld this critical evidence plus some autopsy photos, from presenting any testimony to support its theory that the head shot that killed the teen was received while he was already on the ground, still alive.

These details are critical since even Chapman admits that his client killed the teen. And he said the evidence will show that Elena Rodriguez and others, standing in Mexico, were throwing rocks at Swartz and other agents.

That, he said, leaves two issues for the jury to decide.

One is whether Swartz acted in self defense. And the other is whether Elena Rodriguez was fatally shot while he was standing or after he collapsed to the ground.

Chapman said the government’s theory is that after the first volley of shots, the teen fell but was still alive and no longer a threat, yet Swartz kept firing at him.

“Under this theory, Agent Swartz acted without legal justification and with malice aforethought by continuing to shoot at Elena Rodriguez after he was incapacitated by the first set of shots and went to the ground,” Chapman told Collins.

But if it was the head shot that killed him instantly and caused him to fall, Chapman argues, the government’s case falls apart.

Chapman said prosecutors gave him a copy of an autopsy report, written in October 2012, earlier this year. That report does not address the sequence of shots.

But it turns out that one of the doctors was interviewed by a prosecutor in 2014. And Chapman said got the handwritten notes of that prosecutor of the interview “indicate a drastically different version of Dr. Diaz’s opinion than previously disclosed.”

“In 2014 Dr. Diaz believed unequivocally that Elena Rodriguez was standing when he suffered an initial shot to his head that instantly killed him and resulted in his fall to the ground,” Chapman wrote. “Without question, Dr. Diaz’s 2014 statements, two years after the autopsy and two years before his 2015 statements, support the defendant’s version of events in this case.”

Chapman told Collins that the prosecutor’s decision to interview a key witness without the case agent or a recording device is “something seasoned prosecutors would only do if they were trying to prevent the development of evidence harmful to the government’s case.”

The attorney also said it is now “no coincidence’’ that prosecutors told him two weeks ago they no longer intend to call Dr. Diaz as a witness, instead relying on the testimony of “a much more junior pathologist.”

Chapman said the late disclosure of the interview, along with the fact that the autopsy included some photos showing the evidence of the direction of bullets that hit the teen, undermines his attempt to defend Swartz. He told the judge he now needs to “scramble to confer with his experts, particularly his pathologist, regarding Dr. Diaz’s 2014 opinion and how it fits into the evolution of his opinion.”

There was no immediate response from federal prosecutors.