Herald/Review

BISBEE — An attorney representing a Border Patrol agent charged with murdering an illegal immigrant near Naco has filed a response to the state’s motion for discovery in the case.

Nicholas Corbett is charged with second-degree murder, manslaughter and negligent homicide for killing Francisco Javier Dominguez Rivera in January.

On Dec. 14, Tyrone Mitchell, one of the attorneys prosecuting the case, filed a motion for discovery of items the defense intends to introduce as evidence at trial.

He requested permission to inspect and copy or photograph any books, papers, documents, photographs or tangible objects. He also requested permission to inspect, copy and photograph the results or reports of physical or mental examinations and of scientific tests or experiments in connection with the case.

On Monday, Sean Chapman, the lead defense attorney for Corbett, filed a motion that responds to Mitchell’s request for disclosure of the items.

“Although the defendant has made no request under the rules that would trigger an obligation to disclose these materials, the defendant will comply with this request,” Chapman says.

He adds that the defendant has already disclosed more than 1,000 pages of material to the state. Those items were previously provided to the defense by the Cochise County Attorney’s Office, he says.

In the motion, Mitchell reminds the defense that it must comply with the time limits of the federal rules of criminal procedure regarding defenses of alibi, mental capacity and public authority.

Chapman says Corbett will not present an alibi defense or an insanity defense. But, he will present a defense under public authority.

“At the time of the alleged offense, the defendant was employed as a federal law enforcement officer with the United States Border Patrol. He was acting in the course and scope of his employment when he attempted to apprehend Francisco Dominguez and those with him — all illegal entrants,” he says.

“Further, he was acting in self-defense when he shot Dominguez, who was attempting to disable or kill agent Corbett with a rock,” he continues.

Chapman says Corbett will assert defenses available under the U.S. Constitution and federal and state statutes, such as supremacy clause immunity, justification in the use of deadly force by a peace officer, justification in the execution of public duty and self defense against the use or threatened use of deadly force.

In an e-mail to the Herald/Review on Wednesday, Grant Woods, the lead prosecutor in the case, says he is aware  of  Chapman’s  recent  filing.

“The defense is required to turn over all of its evidence and any proposed testimony by so-called experts. We expect them to do so and if not I’m sure the judge will preclude them from using it,” Woods says.

“We’re looking for a fair trial here, fair to both sides.”

The jury trial is scheduled to begin on Feb. 26.

herald/review Reporter Jonathon Shacat can be reached at 515-4693 or by e-mail at jonathon.shacat@bisbeereview.net.