By Border Patrols Victims Network ~ November 21,2018
The Border Patrol Victims Network (BPVN) condemns the mistakes made by the U.S. Department of Justice (DOJ) and Judge Collins which resulted in two trials without a conviction and instead the acquittals of Border Patrol agent Lonnie Swartz, who clearly acted with malice when he killed Jose Antonio Elena Rodriguez (JAER) on Oct. 10, 2012 shooting him in the back 10 times.
---In both trials the prosecution (DOJ) mistakenly conceded that JAER threw rocks across the border the night he was killed, despite the lack of any credible evidence that he did. This blunder removed the burden of proof from the defense having to prove JAER threw rocks. The surviving video footage (a backup of the original video) is too grainy to discern anything conclusive or identify anyone. Furthermore the defense based their case on a right-handed figure throwing rocks when JAER was left-handed as testified by JAER's grandmother Taide Elena. The DOJ also failed to call James Tomsheck, former head of Internal Affairs for Customs and Border Protection, to testify that JAER was not throwing rocks when he was shot by agent Swartz (as he told the New York Times "10 Shots Across the Border"). Mr. Tomsheck reviewed the original video a week after JAER's shooting.
--BPVN was told by DOJ that Judge Collins did not allow positive details about JAER to be presented in court (such as having no criminal record, was finishing high school, and was a well behaved youth, etc.). However the trial turned into a virtual campaign of character assassination against JAER by claiming he was part of a drug gang, etc. Taide Elena, JAER's grandmother, was not allowed to describe her grandson as the wonderful person she knew him to be.
--In the second trial the defense was allowed to present the alleged statement of an anonymous FBI informant known as EL SENOR who claimed the two suspects who attempted to cross drugs over the border the night of the shooting told him that JAER was working with them. The prosecution failed to even object to this hearsay and Judge Collins allowed it to the point that it was included in the final stipulations read to the jury. This error gravely compromised the integrity of the trial.
--In the first trial the defense presented a witness Amelia Ochoa who had earlier claimed she had seen JAER on the US side of the border the day of the shooting implying he was involved in passing drugs, however on the witness stand she completely recanted her testimony and stated she didn't even know JAER. However in Sean Chapman's closing for the defense he repeated her recanted testimony and stated she recanted due to fear of retaliation by cartels, with no objection from the DOJ or Judge Collins. In the second trial the defense again introduced Ms. Ochoa's recanted testimony with no objection from the DOJ or Judge Collins. This futher damaged the integrity of the trial.
These mistakes and others severely compromised the trial and prejudiced the jury resulting in a verdict based on hearsay, recanted testimony, and conceded allegations.
Source: Border Patrols Victims Network ~ November 21,2018
Border Patrol Victims Network condemns Lonnie Swartz acquittal; blames blunders by the prosecution and the judge
