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BISBEE — If a justice of the peace determines at a preliminary hearing today that first-degree murder or related charges against U.S. Border Patrol Agent Nicholas Corbett can move forward in Cochise County Superior Court, Corbett’s attorneys could request that the case be removed to U.S. District Court in Tucson.
Such a request would be made under the supremacy clause of the U.S. Constitution, which makes federal law supreme over state law and which can be applied to federal agents charged in local criminal courts.
Corbett’s lead attorney Sean Chapman previously invoked the supremacy clause when he successfully lobbied a federal judge to assume jurisdiction in the 2005 case of a Border Patrol agent charged in Santa Cruz County with negligent homicide.
In May 2005, Santa Cruz County Attorney George Silva charged Border Patrol Agent Denin Hermosillo in local court after Hermosillo fatally shot an unarmed marijuana smuggling suspect near Nogales.
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A federal judge in Tucson, responding to a motion from Chapman, removed the case from Santa Cruz County Superior Court in August 2005. Five months later, Silva, who remained as the prosecutor in the case, dropped the charge against Hermosillo.
Neither Chapman nor his co-counsel Daniel Santander responded to e-mail queries asking if they might consider a similar motion in the Corbett case.
But Jack Chin, a criminal justice expert at the University of Arizona’s James E. Rogers College of Law, said the attorneys are likely to consider potential jurors as well as the judge assigned to the case before asking that it be moved to federal court.
“In a situation like this, you’re thinking about the decision-makers,” Chin said.
Ruben Teran, a Douglas-based lawyer who has defended clients in both Cochise County Superior Court and U.S. District Court in Tucson, agreed that the prospective juror pools would be an important consideration for the defense.
And he said that if he were Corbett’s lawyer, he might think twice before trying to move the case to Tucson.
“I think there’s more likelihood of getting a jury that’s favorable to the prosecution in Tucson,” he said.
Teran also would want to know whether federal or state procedural law would apply if the case were moved to federal court.
State law is preferable to a defense attorney, he said, because it has more generous rules regarding what evidence the prosecution has to turn over to the defense.
“I would want to be in the jurisdiction where the disclosure rules are more favorable,” he said.
Differences in sentencing rules would be another important consideration, in case of a guilty verdict, Teran said.
Neither Chin nor Teran could say for certain whether state or federal law would apply to a state criminal case tried in federal court. But either way, the prosecutor would come from the Cochise County Attorney’s Office.
On April 23, Cochise County Attorney Ed Reinheimer charged Corbett with first-degree murder, second-degree murder, negligent homicide and manslaughter in connection with the Jan. 12 shooting death of Francisco Javier Dominguez-Rivera, a 22-year-old Mexican national who had crossed the border illegally near Naco with three family members.
However, before the charges can proceed in Superior Court, Bisbee-based Justice of the Peace David Morales must first hear the evidence at today’s preliminary hearing and decide which, if any of the charges, are supported by the standard of probable cause.
The preliminary hearing was initially scheduled for May 17, but Morales granted a defense request to continue the matter until June 15. The June 15 hearing was then continued until today after Chapman complained the prosecution had not disclosed all of its evidence.
Herald/Review reporter Jonathan Clark can be reached at 515-4693 or jonathan.clark@bisbeereview.net.
A.J. wrote on Aug 6, 2007 7:58 PM: