Nice grouping.
Posted on 01/19/2018 5:26:15 AM PST by SandRat
PHOENIX — The attorney for the Border Patrol agent who shot a teen through the international fence in Nogales wants a judge to block jurors from hearing that his client was discharged from the military "under other than other than honorable conditions.''
Sean Chapman is not disputing that Lonnie Swartz was allowed to leave the Army "in lieu of a trial by court-martial.'' The stated reason, Chapman said, was that Swartz had gone AWOL "for a lengthy period of time.''
Chapman also is asking U.S. District Court Judge Raner Collins to preclude prosecutors from introducing any personnel records of his client's performance while he was attending the Border Patrol Academy or after when he was an employee. That includes not only results of various quizzes, proficiency tests, and standardized tests but also counseling forms, certification and memos written to and from Swartz.
In both cases, Chapman contends that none of this is relevant to the underlying question jurors will be asked to decide,
"The reason for and characterization of Swartz's discharge from the Army has no bearing on whether, on Oct. 10, 2012, he acted with criminal intent to commit second degree murder,'' the attorney told the judge. "Similarly, none of the documents in Swartz's personnel file make it any more or less likely that he acted with criminal intent when he discharged his firearm in this case.''
All that goes to the fact that Swartz has not denied he shot and killed 16-year-old Jose Antonio Elena Rodriguez by firing through the fence with his semiautomatic pistol. But the agent contends that the youth was throwing rocks at him from across the border, something Chapman says was because the youth was involved in drug smuggling.
That argument is significant.
It provides a claim of self defense. It also could help convince jurors that Swartz is not guilty of second-degree murder — the charge on which he was indicted — which is defined in federal law as "the unlawful killing of a human being with malice aforethought.''
An autopsy performed on the teen, found on the ground on the Sonora side of the fence in Nogales, concluded there were 10 shots in his back.
On the subject of that autopsy, Chapman filed a separate request asking Collins to preclude testimony from Dr. Cynthia Porterfield, one of three pathologists who federal prosecutors have listed as witnesses they intend to call.
According to Chapman, Porterfield, while a forensic medical examiner, did not conduct the autopsy which was done in Mexico.
"In fact, Dr. Porterfield did not personally examine or observe the victim's body,'' the attorney wrote. Instead Porterfield, working off the report of the autopsy, plotted the likely bullet entrance and exit wounds on a diagram, Chapman told the judge.
He said since he intends to testify about the victim's injury which were described in the report by the other doctors, her opinions are not only "cumulative'' and unnecessary, but because the issue is "highly sensitive and emotionally charged'' would prejudice the jury against Swartz.
Trial is set to begin on March 20 but could be pushed back as Collins resolves the legal issues.
As his lawyer, he will do everything to protect his client. I can see why he’d want to keep this from the jury.
Nice grouping.
So deserters get veterans preference hiring for federal law enforcement jobs?
How in heck could he get a Federal, let alone any law enforcement job, with a less than honorable discharge?
“According to Chapman, Porterfield, while a forensic medical examiner, did not conduct the autopsy which was done in Mexico.
Did the Mexicans do the autopsy?
“SI, senior. I am Dr Gonzales, the doctor doing the autopsy. Was there a particular side ju wanted the bullet wounds to be on? And, how many wounds did you want? Ten? Let’s see...Ten wounds times $250...that will be $2500. Oh! Un momento. Ju wanted the wounds to be in his back! That will be $5000...in cash, of course. Back wounds are always $500 each. I will have the report done shortly. Please have the cash ready.”
Don’t know about that. I know they still retain their life insurance coverage but I think that’s about it. My best friend deserted the military and I think he got caught 2 or 3 years later. Knowing him and eventually getting the back story on why he did it I’d have done the same thing. This was back when there wasn’t don’t ask don’t tell and his superiors discounted the harassment from a homo for months. The harasser had no punishment and he was punished with half pay for 3 months and other punitive stuff on his ship.
Do I condone it? NO! Do I understand why he did it? Yes. I’d have been put in the brig for murder if someone was harassing me in the manner he said happened.
Folks sometimes fall off the back of the ship late at night...
Wow. Forgot about that. We had a CWO3 mysteriously disappear. Personally I don’t condone murder for trying to force a homo agenda but there certainly are some who could walk that short plank.
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