ONLY ON KOLD: Juror in BP agent murder trial explains ruling

ONLY ON KOLD: Juror in BP agent murder trial explains ruling
Heather Schubert was a juror in the murder trial of Border Patrol agent Lonnie Swartz. (Source: Tucson News Now)

TUCSON, AZ (Tucson News Now) - It was no easy task in the courtroom for the woman who has never even been summoned for jury duty before.

She was seated and assigned to a murder trial.

"It got heated. It got very heated," said Heather Schubert. "People were very passionate about one way or the other. At times we would have to go to our little corners of the room just to breathe because people were yelling, yelling over each other, and not listening to each other. Once they had their mind set they weren't going to listen to anybody else. It wasn't a walk in the park in that room."

Schubert said she was Juror No. 20 in the second-degree murder trial of Lonnie Swartz, the border patrol agent accused in the 2012 cross-border shooting and killing of 16-year-old Jose Antonio Elena Rodriguez.

An autopsy showed Rodriguez, who was unarmed, was hit 10 times, mostly from behind.

Border Patrol has said Rodriguez was among a group of rock throwers endangering agents' lives. The prosecution did not dispute Rodriguez was involved, but his family claims the boy was walking home from a basketball game with friends and was not armed or hurling rocks.

"(Jose Antonio) was doing wrong. I hate to put it like that and I hate to sound cold-hearted. But he was breaking the law. He was smuggling drugs and he was throwing rocks at US Border Patrol Agents. He paid the ultimate price," Schubert said.

The jury began deliberations Monday, April 16, almost a month after the trial started in Tucson.

On Friday, April 20, the jury told Judge Raner C. Collins they were deadlocked and couldn't reach a verdict. Collins instructed the jury to back and continue deliberating.

They did, but then broke for the weekend.

The jury returned Monday, April 23, to deliver a not guilty verdict on the second-degree murder charge, but was hung on the voluntary manslaughter and involuntary manslaughter charges. Thus, a mistrial was declared.

The major facts of the case not disputed by either the prosecution or defense:  Swartz fired 16 times and Rodriguez was hit 10 times, mostly from behind.

"We really couldn't wrap our heads around why he fired so many times," Schubert said. "That just makes me think, what happened? From the first initial three shots that we as the jury decided were justified, and that's why we came with the not guilty verdict on the murder."

She said after about two rounds of votes, the jury unanimously agreed Swartz was not guilty of murder.

Schubert said it took the jury nearly all of the rest of the four deliberation days to discuss the two manslaughter charges.

"The following 13 shots is kind of what we could not make our decision on. It just seemed so excessive. He was already down on the ground and you continued to shoot 13 more bullets. It just doesn't make sense," she said.

Swartz took the stand to testify in his case. Schubert said she had a hard time believing he was truthful during his testimony after seeing his emotional progression swing so drastically.

"All throughout the whole trial he sat there," she said. "He was taking notes, never smiled, never showed any kind of emotion. Then he gets up to the stand and then he cries. At one point the prosecution even asked him, 'Are you crying for yourself or are you crying for the victim?' I'm kind of conflicted on my emotions based off of his emotions."

Schubert said the 12 jurors had the same feeling - they didn't believe beyond a reasonable doubt that Swartz "went into that situation thinking he was going to go kill somebody. That's where the 'not guilty' comes in," she said.

Schubert told Tucson News Now she was split on the votes on the lesser charges. She said she voted not guilty for voluntary manslaughter but guilty for involuntary manslaughter.

She remembered only that the jury was split 7-5 in favor of 'not guilty' on the voluntary manslaughter charge.

The prosecution will have to decide whether they want to re-try Swartz on the manslaughter charges.

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