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BISBEE — Some 13 months after a U.S. Border Patrol agent fatally shot an illegal immigrant near Naco, a jury in federal court in Tucson is going to decide if a crime was committed.
Nicholas Corbett, 40, is charged with second-degree murder, manslaughter and negligent homicide for killing Francisco Dominguez-Rivera, 22, of Mexico. He claims he acted in self defense.
The trial is scheduled to last for two weeks. Jurors will be selected starting Tuesday.
During a recent phone interview from his home in Cuautla, Morelos, the victim’s father, Renato Dominguez, told The News in Mexico City that he and other members of his family hope to go to the trial, but it depends on whether the authorities can get permission for them.
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He said the past year has been “very difficult” for the family. He said his son had a reputation for being “well-mannered” and he was not a “delinquent” or a “troublemaker.” He said it is hard to believe what Corbett did.
“The idea that a person can be a federal agent and behave like a psychopath is really incredible. They have the power in their hands, and they abuse their authority. In my point of view, this man was either demented or an abuser of authority, or a racist,” he said.
But Corbett’s attorneys say he acted in self-defense.
Corbett was patrolling the border about eight miles east of Naco on Jan. 12, 2007, when he tried to apprehend a group of illegal immigrants. Dominguez-Rivera was in the group.
According to three witnesses, Corbett stopped his vehicle, got out and ran toward Dominguez-Rivera. As the victim went down to his knees and was in the process of putting up his hands, Corbett grabbed or hit him with his right hand and shot him with a gun in his left hand.
Corbett did not talk with county investigators but reportedly told Border Patrol officials that he exited the vehicle and was confronted by Dominguez-Rivera, who was holding up a rock in a threatening manner. So, he shot the individual one time.
Authorities looked for the shell casing in the area where Corbett said he fired the gun, but they were unable to locate it. Later on, just prior to moving the victim’s body, the shell casing was found about 2 to 3 feet from the victim’s head.
A criminalist conducted gunshot residue testing and discovered burnt fibers on the victim’s sweater, and therefore determined that Corbett’s gun was between 3 and 12 inches from the victim when it was fired. And autopsy results show Corbett was standing to the left and slightly to the rear of the victim at the time of the shooting.
The Cochise County Attorney’s Office charged Corbett in the death on April 23. He was originally charged with first-degree murder, second-degree murder, manslaughter and negligent homicide. But the first-degree murder charge was dismissed in Justice Court in Cochise County on Aug. 6.
Jurors would be allowed to convict on only one charge. Because a gun was used, the state also has alleged the dangerous nature of the offense, and a conviction would require mandatory prison time. A second-degree murder conviction would draw a sentence of 10 to 22 years, manslaughter seven to 21 years and negligent homicide four to eight years.
Corbett’s attorneys filed a notice of removal in U.S. District Court and in Cochise County Superior Court. The motion was based on the fact that Corbett was acting as a federal officer at the time and therefore he fell under federal court jurisdiction.
U.S. District Judge David Bury moved the case to federal court in Tucson on Sept. 24, but he allowed the Cochise County Attorney’s Office to continue to prosecute it.
The County Attorney’s Office hired former state attorney general Grant Woods and Tyrone Mitchell as special prosecutors in early November. Corbett is being defended by Sean Chapman and Jim Calle.
Defense attorneys filed a motion asking Bury to prevent the three witnesses, who are relatives of the victim, from testifying during the trial.
They argued the credibility of the witnesses was compromised as a result of influence by the Mexican government.
Bury denied the motion in December, but he required the prosecution to release all evidence that is favorable to the defendant so the information can be used to cross-examine the witnesses.
A pretrial conference and motions hearing for the Corbett case is scheduled to take place in U.S. District Court in Tucson today.
Prosecutors and defense attorneys will present arguments regarding a motion to dismiss the case because Cochise County Sheriff’s Office detectives failed to preserve gloves that were worn by the victim at the time of the incident.
Corbett’s attorneys say the gloves could have been tested for debris to show the victim was holding a rock. Prosecutors say any evidence of dirt on the gloves would be circumstantial.
Also, attorneys will argue whether the jury should be made aware of the fact that Dominguez-Rivera had a tattoo on his hand.
The defense wants the evidence to be admitted because the tattoo is considered an indicator of street gang affiliation, and gang members tend to be more aggressive when apprehended. Prosecutors say the evidence should be excluded because the victim was wearing gloves and Corbett did not see the tattoo before he shot him.
Judge Bury is also considering a motion to dismiss the case on the grounds that Corbett is protected by the Supremacy Clause of the Constitution.
Defense attorneys argue Corbett is immune from state prosecution because he was working as a federal law enforcement officer and his actions were necessary to carry out his authority. Prosecutors say Supremacy Clause immunity does not apply in this case because evidence in the case conflicts with Corbett’s version of events.
Dominguez told The News that “God willing,” the jury will give Corbett “the punishment he deserves” for killing his son.
“He didn’t just hurt the deceased, but he hurt the entire family. There are many things that the killer doesn’t know that he’s done. I just want justice, nothing else,” he said.
Reporter Jonathon Shacat can be reached at 515-4693 or by e-mail at jonathon.shacat@bisbeereview.net. Jonathan Clark of The News in Mexico City and Arthur H. Rotstein of The Associated Press contributed to this article.
proudAmerican wrote on Mar 5, 2008 9:11 PM: