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TUCSON — A U.S. District Court judge declared a mistrial Friday for Border Patrol Agent Nicholas Corbett’s murder case after the jury said it was unable to decide on a verdict after about 23 hours of deliberations.
Cochise County Attorney Ed Rheinheimer said he intends to retry the case. Judge David Bury scheduled a new trial for April 22, but that date will likely be changed due to a conflict with a defense attorney.
On Thursday, the jurors sent the court a note stating they were at an “impasse,” but Bury told them to continue deliberations. On Friday at about 2:50 p.m., they sent another note stating they remained in an “unable to agree” status.
Bury polled members of the jury to see if they thought they could arrive at a unanimous verdict if they continued deliberations. Each person on the 12-member panel said, “No.”
  
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Grant Woods, the lead special prosecutor, and Sean Chapman, the lead defense attorney, agreed a mistrial declaration would be appropriate. Bury said the jury was “deadlocked” and he granted the motion for mistrial.
One of the jurors left the courtroom in tears. The jury and the defendant exited the courthouse without speaking to reporters.
Corbett was charged with second-degree murder, manslaughter and negligent homicide for fatally shooting a Mexican named Francisco Javier Dominguez-Rivera who illegally entered the United States near Naco last year.
Woods said he would have preferred for the jurors to convict Corbett, but he will leave that opportunity up to the next jury.
“I think the jury was very diligent and put in an awful lot of time,” he said. “They reached an impasse, and then put in another 11 or 12 hours after that.”
Chapman said his client was hoping for resolution, but he is ready for another trial.
“I am disappointed the jury did not acquit him. We are prepared to try it again and we will. I believe he is innocent. I believe another jury will acquit him,” he said.
Dove Haber, a public information officer for the Tucson sector of the Border Patrol, declined to comment on the case because it is still pending.
The trial started on Feb. 26. Evidence was presented over the course of almost five days and the jury deliberated for roughly three days.
Dominguez-Rivera entered the United States on Jan. 12, 2007, with his two brothers and one’s girlfriend. Corbett was apprehending them and he shot Dominguez-Rivera. Corbett claimed he acted out of self-defense to prevent the victim from smashing his skull with a rock.
Prosecutors said the shooting was unjustified. They presented evidence including the eyewitness testimony, an autopsy report, forensics and a video.
Defense attorneys said the eyewitnesses were lying. They said the Mexican government influenced their testimony.
They also said detectives with the Cochise County Sheriff’s Office conducted a poor investigation.
Prosecutors accused Corbett of fabricating different versions of what happened in interviews with Border Patrol officials at the scene and then changing his story during testimony so it would match the evidence.
Woods said Corbett is now “locked in” on his story and he can’t change it again.
Woods and Rheinheimer said the next trial will be handled differently because new evidence will be admitted.
For example, prosecutors intend to bring up the fact that Corbett has been involved in a few violent incidents. The judge did not let them use this particular evidence during the trial because it was not disclosed until after opening arguments.
Prosecutors also plan to present evidence regarding Dominguez-Rivera’s good character. Woods said the victim was well respected in Mexico and in the United States.
The defense may try to bring in evidence regarding the fact that the victim had a tattoo on his hand that may be associated with a gang affiliation. According to Chapman, gang members are more prone to be aggressive during apprehension.
Some activists said they were not pleased with the outcome of the trial.
Isabel Garcia, co-chair of the Human Rights Coalition in Tucson, said she thinks there was a considerable amount of compelling evidence in the case, including the video, the forensics and autopsy results.
“I am absolutely shocked the jury could hear all the evidence and not come back with a guilty verdict on second-degree murder, manslaughter or at least negligent homicide,” she said.
In a statement, Border Action Network, a human rights organization in Tucson, said it was “saddened and disgusted by the indecisiveness of the jury.”
“Presumably, Agent Corbett will be released back in to the desert where he will continue to act as his own judicial system — judge and jury, deciding who dies and who lives. This agent’s act of reckless abandon for human life was demonstrated when he shot Francisco Javier,” says the statement.
HERALD/REVIEW reporter Jonathon Shacat can be reached at 515-4693 or by e-mail at jonathon.shacat@bisbeereview.net.
KEY DATES
The following is a brief timeline of the case.
• Jan. 12, 2007 — Nicholas Corbett fatally shoots Francisco Dominguez-Rivera near Naco.
• Jan. 17, 2007 — Guery Flores, Cochise County’s medical examiner, performs an autopsy on Dominguez-Rivera.
• Feb. 27. 2007 — Cochise County Sheriff’s Office completes its investigation and forwards a report to the County Attorney’s Office.
• April 23, 2007 — Cochise County Attorney’s Office charges Corbett with first-degree murder, second-degree murder, manslaughter and negligent homicide.
• Aug. 6, 2007 — The first-degree murder charge is dismissed during a preliminary hearing in Justice Court in Cochise County.
• Sept. 24, 2007 — Corbett’s case gets moved to federal court in Tucson.
• Nov. 6, 2007 — Cochise County Attorney’s Office hires former state attorney general Grant Woods and Tyrone Mitchell as special prosecutors.
• Dec. 17, 2007 — Judge David Bury agrees to allow Jim Calle to replace Daniel Santander as one of Corbett’s attorneys. Sean Chapman remains lead defense attorney.
• Jan. 17, 2008 — Corbett’s defense team goes to scene and finds gloves belonging to the victim that detectives had failed to collect as evidence.
• Feb. 26, 2008 — Corbett’s trial starts with jury selection in U.S. District Court in Tucson.
• March 7, 2008 — Judge declares a mistrial after jury says it cannot come to a decision.
Compiled by Jonathon Shacat•Herald/Review
Michael Dale wrote on Mar 21, 2008 7:41 AM: