TUCSON, Ariz. (AP) — The attorney for a Border Patrol agent charged with second-degree murder in the fatal cross-border shooting of a Mexican teen is asking the court to bar video evidence, saying the agency didn't hold on to original copies of the footage.
Attorney Sean Chapman filed the motion earlier this month asking a judge to exclude the video and re-creations. Chapman says the copies are "highly compressed and deeply flawed."
The motion was filed in the case against Lonnie Swartz, who faces trial later this year for the October 2012 shooting of 16-year-old Jose Antonio Elena Rodriguez.
Swartz is accused of firing through the border fence into Nogales, Sonora, and striking Elena Rodriguez about 10 times. He says Elena Rodriguez threw rocks at him, endangering his life. But the boy's family says he was just walking home after a game of basketball with friends.
Chapman said in the motion that the shooting was recorded by several pole cameras and that the FBI on the night of the shooting obtained a copy of the videos but didn't try to preserve the originals. Authorities have tried to obtain the original footage but were told it was lost or destroyed, Chapman said.
Swartz has pleaded not guilty to the charge. Chapman and the U.S. Attorney's Office in Tucson declined to comment.
Elena Rodriguez's family has also filed a civil lawsuit against Swartz in federal court in Tucson.
Swartz's attorney and the government are challenging that suit, arguing that Elena Rodriguez was not constitutionally protected because he was a Mexican on foreign soil without any ties to the U.S. Attorneys representing the family say Elena Rodriguez did have ties to the U.S. because his grandmother, who helped care for him, who was a legal permanent resident and now American citizen.
The 9th U.S. Circuit Court of Appeals heard arguments in the case in October but said it wouldn't issue a ruling until the Supreme Court made a decision in a similar case involving another cross-border shooting.
That case stems from a 2010 incident when a Border Patrol agent in El Paso, Texas, fatally shot a teenager who was across the border in Ciudad Juarez, Mexico.
Authorities say agent Jesus Mesa Jr. was trying to arrest immigrants who had illegally crossed into the country when rock-throwers attacked him. Mesa fired across the Rio Grande river, striking 15-year-old Sergio Adrian Hernandez Guereca twice.
A federal appeals court said the boy's family didn't have the right to sue in U.S., which the Supreme Court is now considering.