Originally Published: September 18, 2018 8:35 p.m.
PHOENIX — Federal prosecutors are urging a judge to dismiss a bid by Border Patrol agent Lonnie Swartz to have his new trial moved to Phoenix, saying there’s no reason to believe he would get a fairer trial -- and a more impartial jury — than he would in Tucson.
In new court filings Wednesday, Assistant U.S. Attorney Wallace Kleindienst acknowledged there has been extensive coverage of the 2012 incident where Swartz shot a teen through the border fence as well as his initial trial. Jurors acquitted him of murder but were unable to decide whether he was guilty of manslaughter.
But Kleindienst told U.S. District Court Judge Raner Collins that all that coverage “has not been inflammatory.’’
The prosecutor also noted that Swartz is claiming that having the trial in Tucson works against him because of all the news stories about immigration and border issues. But he said Swartz is mistaken if he thinks that moving the trial to Phoenix will make any difference in all of that.
“The defendant’s argument provides no evidence that Phoenix District citizens feel less of an impact from border issues and simply assumes a decreased impact due to their geographical location,’’ the prosecutor wrote.
A trial held in Phoenix would draw jurors from Maricopa, Pinal, Yuma, La Paz and Gila counties. By contrast, prospective jurors for one held in Tucson would come from Pima, Cochise, Santa Cruz, Graham and Greenlee counties.
Put simply, Kleindienst said, the presence of the internet and social media means that “local’’ news doesn’t stop at a community’s border.
“What happens in Tucson nowdays is transmitted beyond the city and Southern Arizona,’’ Kleindienst said, saying even Swartz concedes that the stories on immigration and border issues “are reported on a daily basis across the entire nation.’’
No one disputes that on Oct. 10, 2012, Swartz shot and killed 16-year-old Jose Antonio Elena Rodriguez through the border fence at Nogales. The only question for jurors is whether Swartz, who claims the teen was involved with drug smuggling and had been throwing rocks at him, was justified in his action.
At the first trial, jurors acquitted him of the charge 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, set to begin Oct. 23, 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, which usually applies to the illegal killing of someone due to irresponsibility or recklessness.