BISBEE — Border Patrol Agent Nicholas Corbett can be tried in Cochise County Superior Court on a charge of second-degree murder, a justice of the peace ruled Monday.

However, after listening to testimony at a preliminary hearing, Justice of the Peace David Morales decided that the evidence did not support a more serious charge of first-degree murder, which supposes premeditation.

On April 23, Cochise County Attorney Ed Rheinheimer 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 east of Naco.

Deputy County Attorney Gerald Till, the lead prosecutor in the case, said following Monday’s ruling that he was not disappointed to lose the first-degree murder charge.

Border Patrol Agent Nicholas Corbett walks toward the court room on Monday at Cochise County Precinct One for his preliminary hearing concerning a charge of first-degree murder and other charges in connection with the death of Javier Dominguez-Rivera on Jan. 12 who was crossing the border near Naco illegally. (Suzanne Cronn•Herald/Review)

“I just put on the case and the judge decides from the evidence,” Till said. “That’s what the preliminary hearing is for.”

Defense attorney Sean Chapman, while maintaining Corbett’s innocence on all the charges, was not surprised that Morales let second-degree murder — as well as the lesser included offenses of manslaughter and negligent homicide — go forward.

“The judge has considered the evidence on a very low standard of probable cause as opposed to proof beyond a reasonable doubt, and so we anticipated that simply considering the state’s evidence, he’d find probable cause on some of the offenses,” Chapman said.

“That does not mean that he believes the defendant is guilty,” he continued. “It simply means that the prosecutor met a very low burden of proof, and there is sufficient evidence to carry this over to trial.”

Witnesses testify

Earlier in the day, three eyewitnesses to the shooting — two of the victim’s brothers and the girlfriend of one of the brothers — told Morales that Corbett circled his Border Patrol truck around them as they ran toward the U.S.-Mexico border, pointing his service pistol with his right hand as he drove with his left.

Then after stopping the vehicle, Corbett jumped out ran around the back of the truck, now holding the semi-automatic pistol in his left hand and shouting something unintelligible in English. When he reached Francisco Dominguez-Rivera, the witnesses said, he struck him in the back of the neck and pushed him toward the ground from behind.

Then, in one quick motion, Corbett pointed his gun toward the victim’s side.

“I turned to look at Sandra, and I heard ‘boom!,’ ” said Jorge Dominguez-Rivera, referring to his girlfriend Sandra Vidal-Guzman.

Vidal-Guzman testified that she watched as Corbett fired and Francisco Dominguez-Rivera fell to the ground, convulsed briefly, and died.

“I saw the shot clearly,” she said.

The witnesses said that no one in their party carried a weapon or brandished a rock — Corbett told supervisors at the Naco Border Patrol Station that he fired in self-defense after Francisco Dominguez-Rivera threatened him with a rock.

An autopsy of Dominguez-Rivera showed that the bullet from Corbett’s 40-caliber Beretta pistol entered near the victim’s his left armpit and took a downward trajectory through his heart before lodging in his lower right abdomen, Cochise County Medical Examiner Dr. Guery Flores told the judge.

And Jon Maciulla, a criminologist at the Arizona Department of Public Safety crime lab in Tucson testified that tests to the victim’s shirt showed that the shot was fired from a distance of less than one foot.

During cross-examination, Flores told assisting defense attorney Daniel Santander that there was no sign of injury to the victim’s shoulders, head or neck — despite the witnesses’ reports that Corbett had struck him there.

Then during his questioning of the family members, Chapman noted several apparent inconsistencies between their testimonies Monday and statements they made to Cochise County Sheriff’s Office investigators during two interviews in January.

In one example, Chapman asked Jorge Dominguez-Rivera why he had said in January that Corbett held the gun in his right hand, but then said Monday that he held it in his left.

“I was confused,” Jorge said of his January statements.

Chapman also focused on the Mexican Consulate’s role in aiding the family members. Under cross-examination, the witnesses acknowledged that the consulate is providing them with food, an apartment in Tucson, free transportation and calls to family members.

They also said that their attorney, Peter Schey of the Center for Human Rights and Constitutional Law in Los Angeles, had helped them to get U.S. work visas, though none had yet to land a job.

Chapman played the three family members tape recordings of interviews they had done with Oscar de la Torre, the Mexican Consul in Douglas, who told them that Mexican President Felipe Calderon had condemned the shooting. De la Torre also advised them not to change their stories from the original statements they gave the sheriff’s investigators.

“It is very important to us that the policeman does not come out clean over this,” De la Torre said in one of the conversations.

Chapman asked Vidal-Guzman if she felt any pressure to testify in the case, knowing that the consul and President Calderon have an interest in it, and that the Mexican government is paying for her living expenses.

“No,” she said.

As for the advice not to change his statement, brother Rene Dominguez-Rivera said he thought it meant that he should stick to the truth.

The investigation

Sheriff’s Office Detective Ursula Ritchie described to the judge how she arrived at the shooting scene and was told by a Border Patrol Field Operations Supervisor Murray Adams that Corbett had said he shot Dominguez-Rivera from diagonally across his patrol SUV after first coming around the front of the vehicle.

Using that information, Ritchie said, she searched unsuccessfully for a spent shell casing near the front end of the truck. Later, a deputy found the casing approximately two feet from the victim’s head, at the rear of the vehicle.

Adams told Morales on Monday that he may have been mistaken when he first told Ritchie of his conversation with Corbett.

Santander asked Ritchie why she had not taken into evidence a pair of gloves that had apparently been worn by the victim and which lay on the ground near his hands. Ritchie had said earlier that Dominguez-Rivera’s hands were free of dirt, despite Corbett’s claim that he had held a rock.

She said she hadn’t noticed the gloves.

“It wouldn’t take a rocket scientist to observe those gloves and take them into evidence, would it?” Santander said.

Santander also took Sheriff’s Office Detective Wendy Adney to task for her failure to investigate which hand Corbett had used to fire his gun, and for not taking charge at the Naco Border Patrol Station on the night of the shooting to ensure that the witnesses were separated.

Adney, however, said that contrary to suggestions from the defense, she was the first person to interview the witnesses.

“I know that I interviewed them before the Mexican Consulate,” she said.

Speaking after the hearing, Brandon Judd, vice-president of the local chapter of the Border Patrol agents’ union, accused Adney of sloppy police work, which included omitting evidence favorable to Corbett from her probable cause report.

“I hope there’s never a crime committed against my family in which a Cochise County detective investigates,” Judd said.

Corbett’s case will now move to Cochise County Superior Court, where he will be arraigned on a yet-to-be determined date.

Corbett did not testify at the preliminary hearing, and Chapman and Santander declined to make an offering of their evidence for the judge. Asked afterward if Corbett will continue to assert that he shot Dominguez-Rivera from straight on in order to defend himself from a rock-throwing, Santander declined to comment.

Herald/Review reporter Jonathan Clark can be reached at 515-4693 or jonathan.clark@bisbeereview.net.