Prosecutors want border agent's military desertion in trial

AP News
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Posted: Jan 26, 2018 4:08 PM

TUCSON, Ariz. (AP) — A Border Patrol agent's past arrest for military desertion, which he never disclosed when applying for work, is relevant to his murder trial for the cross-border shooting of a Mexican teen, federal prosecutors said.

The U.S. Attorney's Office for Arizona is disputing defense attorneys' motion to exclude military and job performance records for Lonnie Swartz, according to documents filed Thursday in federal court in Tucson.

Swartz has pleaded not guilty to one charge of second-degree murder in the 2012 death of 16-year-old Jose Antonio Elena Rodriguez.

Swartz enlisted in the military in November 1995 at age 19 and went AWOL two months later. The FBI and local law enforcement arrested him in Las Vegas in October 1997. He was discharged in lieu of trial by court-martial four months later.

According to prosecutors, Swartz omitted his desertion and arrest when applying to Border Patrol. Instead, he stated that he served in the Army for one month before quitting.

"The jury should be apprised of those statements in evaluating his credibility on the witness stand. The fact that these statements were made when he applied ... make them particularly germane to this case which involves his conduct as a Border Patrol Agent," prosecutors wrote.

Defense attorney Sean Chapman argued in the initial motion that Swartz's military history "has no bearing" on whether he fired his weapon with criminal intent in the shooting.

Chapman cited the same reasoning for wanting 230 pages of internal, personnel records excluded as possible evidence. The records include field observation reports, performance evaluations and results of proficiency tests.

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Prosecutors accused the defense of being too broad with its requests. Swartz's past training and other employment records could be admissible in questioning the credibility of his testimony, they said.

Swartz is accused of firing through a border fence from Nogales, Arizona, into Nogales, Sonora, Mexico, in October 2012 and killing 16-year-old Jose Antonio Elena Rodriguez.

He said Elena Rodriguez threw rocks at him, endangering his life. The boy's family denies that, saying he was walking home after playing basketball with friends.

Swartz is also facing a civil rights lawsuit filed by the ACLU on behalf of the boy's mother.