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TUCSON — A U.S. District Judge on Monday denied two motions seeking to dismiss the case of a Border Patrol agent charged with murdering an illegal immigrant along the border near Naco, thereby allowing a jury trial to start today.
Agent Nicholas Corbett, 40, is charged with second-degree murder, manslaughter and negligent homicide for killing a 22-year-old Mexican named Francisco Dominguez-Rivera. Corbett claims he acted in self-defense because the victim was going to throw a rock at him.
His trial is scheduled to begin today in U.S. District Court in Tucson. Jury selection will begin at about 9:30 a.m.
A pretrial conference and motions hearing was held Monday, during which Judge David Bury denied motions to dismiss the case. The motions claimed Supremacy Clause immunity and destruction of evidence.
 U.S. Border Patrol Agent Nicholas Corbett appears at the Federal Court Building in Tucson on Monday for a pretrial hearing. Today, Corbett goes on trial for second-degree murder, stemming from an incident in which he shot and killed an illegal immigrant. (Ed Honda-Herald/Review) |
The judge also granted a motion to exclude evidence that the victim had a tattoo and alleged gang affiliation.
Under the Supremacy Clause of the U.S. Constitution, a federal officer cannot be held on a state criminal charge if the alleged crime took place during the performance of federal duties.
But in order to be eligible for immunity under the clause, a defendant must establish that the act was within the scope of official authority, and the defendant must have honestly believed the act was necessary under the circumstances.
The defense claims Corbett came around his vehicle and was confronted face to face by a threatening intruder, and so he shot him. But, evidence submitted by the prosecution shows the bullet entered Dominguez-Rivera’s body just above his left breast and was fired at very close range.
“The court finds that based on the record currently before it, there are disputed matters of fact bearing on the claim of immunity. Accordingly, the court denies the motion, but notes that this does not foreclose a grant of Supremacy Clause immunity at a later stage in the litigation,” Bury states in his order dated Monday.
In Bury’s rejection of the motion to dismiss the case based on a claim of evidence destruction, the defense had cited the fact that Cochise County Sheriff’s Office detectives failed to preserve wool gloves that were worn by the victim at the time of the incident.
Sean Chapman, the lead defense attorney, said the gloves could have been tested for debris to show the victim had been holding a rock. Lead prosecutor Grant Woods said that evidence would be “immaterial.” He said the gloves could have gotten dirty at any point during the victim’s journey across the border or when the victim was shot and fell to the ground.
Bury said he will allow the defense to cross-examine the prosecution’s witnesses regarding this matter during testimony.
Chapman also argued to include evidence of an alleged gang marking on the dead man’s hand. The attorney said the tattoo is known as “La Vida Loca” and is commonly associated with gang affiliation. He said a defense witness is prepared to testify that gang members are more prone to be aggressive when apprehended.
Woods argued that the evidence of the tattoo should not be presented because the victim was wearing gloves at the time and therefore Corbett could not have seen the tattoo before he shot him.
Bury said he does not think it is fair to allow Chapman to say the victim was a member of a gang, unless there is direct evidence of it.
Also, the judge granted two more motions that will prevent certain evidence from being brought up during the trial. The jury will not be told that one of the detectives received a letter of reprimand regarding excessive speed. Also, Border Patrol agents will be prohibited from testifying regarding use of force issues.
And, Chapman withdrew his notice of intent to introduce evidence of Corbett’s good character.
Bury said about 130 potential jurors were expected to enter the courtroom today. After the selection process is complete, the panel will consist of 12 jurors and two alternates.
The judge said he intends to protect the privacy of the members of the jury, so the jurors will be identified with numbers instead of their names. Also, he said, cell phones will not be permitted in the courtroom, to prevent spectators from recording, photographing or videotaping anything during the trial.
Herald/Review reporter Jonathon Shacat can be reached at 515-4693 or by e-mail at jonathon.shacat@bisbeereview.net.
Frank wrote on Mar 7, 2008 9:14 AM: