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Jose Antonio Elena Rodriguez was fatally shot as he threw rocks at authorities during a drug smuggling attempt

By Anita Snow and Jacques Billeaud
Associated Press

PHOENIX — Prosecutors are evaluating whether to pursue a retrial for a U.S. Border Patrol agent on manslaughter charges after an Arizona jury deadlocked on the lesser counts.

A mistrial was declared Monday in the case of Agent Lonnie Swartz after Tucson jurors acquitted him of a second-degree murder charge in the 2012 shooting death of a teenager from Mexico.

In this March 21, 2018, file photo, Border Patrol agent Lonnie Swartz, left, makes his way to the U.S. District Court building in downtown Tucson, Ariz. (Ron Medvescek/Arizona Daily Star via AP, File)
In this March 21, 2018, file photo, Border Patrol agent Lonnie Swartz, left, makes his way to the U.S. District Court building in downtown Tucson, Ariz. (Ron Medvescek/Arizona Daily Star via AP, File)

The decision means prosecutors could seek another trial for Swartz on the manslaughter charges in the death of Jose Antonio Elena Rodriguez, who was fatally shot as he threw rocks at authorities during a drug smuggling attempt.

The jury deliberated about 18 hours over five days in what human rights attorneys say was the first prosecution of a Border Patrol agent in a fatal shooting across the border.

Swartz fired 16 shots late on Oct. 10, 2012, through a 20-foot (6-meter) fence that sits on an embankment above Mexico's Calle Internacional, a Nogales street lined with homes and small businesses.

Prosecutors acknowledged during the monthlong trial that Elena Rodriguez was lobbing rocks across the border during a drug smuggling attempt. But they say he did not deserve to die.

Defense attorneys countered that Swartz was justified in using lethal force against rock-throwers and shot from the U.S. side of the border in self-defense.

Defense attorneys Sean Chapman and Jim Calle didn't return a phone call seeking comment on the jury's decision.

Art Del Cueto, head of the Tucson union for Border Patrol officers, said: "I believe that justice was properly served. The jurors took their time, and we're pretty happy with it."

Prosecutor Elizabeth Strange said her office respects the jury's decision.

The Border Patrol came under close scrutiny during the Obama administration for allegations involving excessive use of force. Customs and Border Protection, its parent agency, reported 55 incidents in which employees used firearms from Oct. 1, 2011, to Sept. 30, 2012. The number of incidents fell to 17 for the same period five years later.

Swartz initially was charged with second-degree murder in the shooting of Elena Rodriguez in Nogales, Mexico.

Collins told the jury in his instructions that they could consider a lesser charge of voluntary or involuntary manslaughter if they had trouble reaching a verdict on the more serious charge.

During closing arguments, Assistant U.S. Attorney Wallace Heath Kleindienst said Swartz "was fed up with being rocked" after being targeted in at least six other attacks.

"He was angry with those people who had been throwing rocks against the fence," Kleindienst said. "It was not about eliminating a threat, because there was no threat," he said. "It was about eliminating a human being."

Defense attorney Sean Chapman argued there was "not a scintilla of evidence" that Swartz was angry or fed up.

He said Swartz shot because he was trying to protect himself and his fellow agents during a drug operation.

"From his first day in the Border Patrol, it had been ingrained in him that rocks were dangerous," Chapman said.

The trial played out as President Donald Trump called for National Guard troops to be sent to the Mexican border to free Border Patrol agents to concentrate on stopping drugs and people from illegally entering the United States.

Trump has made his crackdown on illegal immigration and building a wall along the U.S.-Mexico border a cornerstone of his presidency.

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