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4:32 PM Tue, Dec. 18th

Prosecutors: Keep information from jurors in border shooting case

Doesn’t want them to know victim’s mother filed a civil suit

PHOENIX — Federal prosecutors want to block jurors in the murder trial of a Border Patrol agent from being told that the victim’s mother has filed a civil suit against him.

In new court filings Wednesday, Assistant U.S. Attorney Wallace Kleindienst does not dispute that Araceli Rodriguez is seeking unspecified monetary damages from Lonnie Swartz and, presumably, the federal government for whom he worked. That case remains on hold while the U.S. Supreme Court weighs legal questions about whether federal courts have jurisdiction.

But Kleindienst is telling U.S. District Court Judge Raner Collins that civil suit is irrelevant to whether or not Swartz committed murder when he admittedly shot through the border fence and killed 16-year-old Jose Antonio Elena Rodriguez. More to the point, Kleindienst said he fears that telling jurors of the civil suit could lead them to acquit Swartz of the criminal charges.

“For example, jurors could conclude that the government is championing the decedent’s mother’s attempt to get money from the defendant through the indictment and, finding that repugnant, return a not guilty verdict even though the government proved its case,” he told Collins.

“Similarly, the jurors could return a not guilty verdict, even though the government proved its case, because they assume the victim’s mother will receive adequate compensation in the civil suit and a guilty verdict (in the criminal case) would be ‘double jeopardy,’” Kleindienst said. “Knowledge of the civil suit would turn the criminal trial on its head.”

Both cases stem from the 2012 incident when Swartz, on the Arizona side of the border, shot the teen who was on the other side of the fence in Mexico.

Swartz has argued that the teen was throwing rocks at him and said he likely was involved in drug smuggling, both contentions disputed by the youth’s family. An autopsy conducted in Mexico concluded he was hit 10 times in the back.

The criminal case is built around the government’s contention that Swartz is guilty of murder because acted intentionally in shooting the teen. Everything else, Kleindienst argued — including the civil suit — is legally irrelevant.

“It is simply an allegation made by the victim’s mother than the defendant unlawfully killed her son and her claim for compensation from him because of that act,” he told Collins. “She was not a witness to the homicide and has no first-hand knowledge of her son’s death.”

The criminal trial is currently set to begin March 20.

That civil case, however, remains on hold.

Swartz, backed by the government, has contested that Rodriguez cannot file a wrongful death suit in this country’s federal courts because the death occurred in a foreign country. When Collins disagreed, Swartz sought review at the 9th Circuit Court of Appeals.