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BISBEE — Cochise County Attorney Ed Rheinheimer said he may seek a grand jury indictment against Border Patrol Agent Nicholas Corbett after a judge postponed a preliminary hearing Friday meant to determine if Corbett can be charged with murdering an illegal immigrant.
Justice of the Peace David Morales granted the seven-week continuance after defense attorney Sean Chapman complained he had not received a complete set of police statements made by six Mexican nationals who were present when Corbett fatally shot Francisco Javier Dominguez-Rivera near Naco on Jan. 12.
Chapman called it “fundamentally unfair” and “outrageous” that the County Attorney’s Office had not fully disclosed the statements.
Without all the evidence, he said, “we are not in a position to fully and fairly cross-examine these witnesses.”
 U.S. Border Patrol Agent Nicholas Corbett waits to leave the Justice Court 1 in Bisbee following a hearing on Friday. Protesters are lined up behind Corbett, who is charged with killing an illegal immigrant near the U.S.-Mexico border just east of Naco. (Ed Honda•Herald/Review) |
Deputy prosecutor Gerald Till, however, told the judge that he had been forthcoming beyond the requirements of the law.
“Everything that I have, they’ve been given,” he said, noting prosecutors do not have to disclose all the evidence until 30 days after a defendant is arraigned.
Even so, Morales continued the hearing until Aug. 6.
Till said afterward that he could not recall another defendant who had been granted two continuances prior to a preliminary hearing. The proceeding was originally scheduled for May 17, but was postponed until Friday in response to an earlier defense request.
In a criminal complaint filed April 23, Rheinheimer charged Corbett with first-degree murder, second-degree murder, negligent homicide and manslaughter. Corbett cannot be arraigned, however, until a judge or a grand jury rules that the evidence against him meets the level of probable cause.
Now that Morales has twice postponed the preliminary hearing, Rheinheimer said he may ask a grand jury to indict Corbett.
“The judge has a great deal of discretion to grant continuances,” Rheinheimer said. “All we can do is live with the continuance — unless we decide to take it to grand jury instead.”
Grand jury proceedings are considered to be more favorable to the prosecution, since prosecutors control which evidence to put forth and defense attorneys are not present to cross-examine witnesses.
The proceedings are also conducted in private, out of the public eye.
Brandon Judd, vice president of the local chapter of the Border Patrol agents’ union, said he doubted Rheinheimer would take the case to a grand jury, despite the delays in the proceedings.
“The reason he didn’t go to the grand jury in the very beginning is that he wanted this media outpouring,” Judd said.
“That was the whole purpose of him choosing (to go to a preliminary hearing). This way, he made the case much more media friendly.”
The Herald/Review, The Associated Press, the Arizona Daily Star, the Los Angeles Times and KVOA-TV in Tucson all sent reporters to Friday’s hearing at Justice Court 1.
Spectators and witnesses
In addition to the reporters, approximately 25 spectators packed the tiny courtroom, including a number of off-duty Border Patrol agents.
Outside in the parking lot, a group of protesters from the immigrant-rights group Border Action Network held signs in English and Spanish bearing statements such as “No one is above the law,” “Justice for all” and “We demand responsibility on the border.”
“We want justice, and we want the Border Patrol to behave responsibly,” said protester Angelica Nuñez, a restaurant owner from Douglas. “They shouldn’t be taking out their pistols when there’s no reason to.”
There were no civilians protesting on Corbett’s behalf. The Border Patrol agents who came to show their support could not speak to the media due to agency policy.
The charges against Corbett, 39, stem from an incident in which he shot and killed Dominguez-Rivera, 22, from the south-central Mexican state of Puebla, shortly after Dominguez-Rivera and three family members had crossed illegally into the U.S.
Corbett told supervisors at the Border Patrol’s Naco Station that he fired his service revolver in self-defense after Dominguez-Rivera threatened him with a rock from across his truck.
The three family members, however, told investigators that Dominguez-Rivera never held a rock, and that Corbett shot him at point-blank range after running up behind him and pushing him to his knees.
Speaking to reporters outside the courtroom, Chapman criticized Rheinheimer for filing charges based on the word of illegal immigrants rather than that of “a Border Patrol agent who puts his life on the line on a daily basis.”
However, when announcing the charges in April, Rheinheimer said that other evidence, including an autopsy report, a surveillance video and ballistics tests, had supported the family members’ story rather than Corbett’s.
Three other illegal border-crossers that Corbett had captured moments earlier were in the back seat of the truck when the shooting occurred, but told detectives from the Cochise County Sheriff’s Office that they could not see what happened.
The three returned to Mexico in February, while the family members remained in Tucson to serve as witnesses in the criminal case.
Judd suggested that the testimony from the non-related witnesses would help to exonerate Corbett.
“Those three witnesses have exculpatory information, so why aren’t they here?” he asked.
Chapman also was upset that the family member witnesses had been allowed to remain free while in the U.S. They broke the law when they crossed the border illegally, he said, and so they should be in custody.
Peter Schey, a lawyer for the Center for Human Rights and Constitutional Law in Los Angeles who is representing Dominguez-Rivera’s family, accused the federal government of trying to deport the witnesses on three separate occasions.
“We don’t know if that’s collaboration by the Border Patrol,” he said, “but we are outraged at the efforts to deport them. Had this shooting involved a killing of a Border Patrol agent by an immigrant, and if there were three material witnesses, we have no doubt the U.S. government would have kept them on a very short leash in order to absolutely guarantee their availability.”
HERALD/REVIEW reporter Jonathan Clark can be reached at 515-4693 or by e-mail at jonathan.clark@bisbeereview.net.
Lane wrote on Jun 22, 2007 3:21 PM: