Border agent’s 2nd trial won’t move to Phoenix

By Jonathon Shacat
Herald/Review
Published/Last Modified on Saturday, Aug 02, 2008 - 05:31:32 am MST

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BISBEE — A federal judge in Tucson has denied a motion seeking to change the venue of U.S. Border Patrol Agent Nicholas Corbett’s jury trial to Phoenix.

Corbett is charged with second-degree murder, manslaughter and negligent homicide for fatally shooting Francisco Dominguez-Rivera, a Mexican who illegally entered the United States near Naco last year.

Corbett claims he acted out of self-defense when he shot Dominguez-Rivera, but prosecutors claim he was not justified in shooting him. Judge David Bury declared a mistrial in March when a jury was deadlocked.

On June 22, the defense filed a motion to change the venue for the next trial due to extensive media coverage on both the Corbett case and immigration issues in general. On July 14, the prosecution filed a response stating it does not directly oppose the motion, but would like the court to use an extensive written questionnaire to pick the jury.

Bury issued an order dated Thursday denying the change of venue request. He also rejected the suggestion that a written questionnaire is needed to choose jurors.

“The court shall conduct voir dire as it did last time, which included one-on-one questioning by the court and both parties’ attorneys at side-bar of each juror who reported having heard any information related to the case. As it did before, this voir dire will enable the court to determine whether a fair and impartial jury can be selected to try the case,” he states.

The defense submitted two “disturbing examples” of “inflammatory representations” that took place after Corbett’s mistrial was declared.

First, Isabel Garcia, the Pima County legal defender, appeared on a Tucson television station and in the context of the Corbett case, equated the treatment of illegal entrants to the maltreatment of slaves freed after the Civil War.

Also, a prosecutor told the media that new information regarding prior incidents would be introduced in Corbett’s retrial that would show the defendant has a pattern of violent acts.

In the order, Bury states those comments are not significant enough to rise to a level of inflammatory publicity.

He concludes the media coverage surrounding the trial “was factual, and impressively fair minded in presenting both sides of the case. This publicity was noticeably devoid of speculative opinion pieces regarding the defendant’s guilt or innocence. The court anticipates that future publicity will be similar.”

The defense also argued media coverage of immigration and border issues in general has inflamed and polarized the community.

Corbett’s attorneys complain jurors were forced to walk by a shrine memorializing the victim outside the courthouse in Tucson. And they say a recent protest in Tucson against the immigration policies of Maricopa County Sheriff Joe Arpaio shows the volatility of the subject there.

But, Bury ruled, the defense’s arguments would apply equally if the trial were held in Phoenix.

The second trial is scheduled to start Sept. 9 in Tucson. However, prosecutors filed a motion last week asking the court to postpone that date due to a trial conflict. Bury has not yet issued a ruling on that motion.

In an e-mail to the Herald/Review on Friday, Grant Woods, the lead prosecutor of the case, said he anticipates getting a firm trial date from the court soon and then working with law enforcement from Cochise County to prepare for it.

“We are happy the case will remain in Southern Arizona and look forward to presenting the evidence against Corbett,” he states.

Lead defense attorney Sean Chapman did not respond to an e-mail from the Herald/Review seeking comment Friday.

JONATHON SHACAT can be reached at 515-4693 or by e-mail at jonathon.shacat@bisbeereview.net.

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Gus wrote on Aug 7, 2008 6:57 PM:

" To - To Frank. The fact that you say you've never seen BP Agent Corbett mad in five years is irelevant, even if you spent every waking moment of those five years with him. Most would agree that human beings, to include the very nice ones, are capable of peforming many despicable deeds, depending on the circumstances or the heat of the moment. "

To To Frank from Another wrote on Aug 5, 2008 7:44 PM:

" Most likely the police did not make an arrest because there were no physical marks. Doesnt mean it didn't happen or was false. "

Frank wrote on Aug 4, 2008 10:41 PM:

" Yes you did, my point was that he was not doing his job properly. He took a life, perhaps accidentally. The word execution was admittedly not a good choice, as we'll never know the agent's exact state of mind. I have always believed it was negligence, although Agent Corbett would never admit to it, as it would have reflected on his job peformance. Instead, he chose the defense of being threatened with a rock. We are where we are.. "

To Frank wrote on Aug 4, 2008 5:47 PM:

" I haven't made your point, I proved you have no clue what the case is. You called it an execution, which is not the truth. It's either an accidental shooting if you want to believe the million dollar man Woods or self-defense if you believe Corbett, not an execution. Police reports, yes. Arrests, no. Why? Because the police officers on the call did not believe that these acts of violence actually occured and warranted an arrest. How can that be used against you? People would make false calls daily if that happened. "

Frank wrote on Aug 4, 2008 12:57 PM:

" This newspaper reported two previous incidents of violence and apparently police reports are on record. If it was in fact an accidental discharge, you've made my point, he was not doing his job properly. "

To Frank wrote on Aug 4, 2008 7:16 AM:

" You have no idea about the facts of the case, only what you've read in this newspaper. That was the initial claim of the prosecutor and by the end of the first trial, that wasn't the story the expensive Mr. Woods was trying to sell. He was trying to sell an accidental discharge to the jury. The prior record of violence includes no arrests, anyone can call the police with a legit or made up story. It won't be admissible. Plus, knowing Mr. Corbett for 5 years, never once saw him mad. "

support wrote on Aug 4, 2008 4:26 AM:

" He has no prior records of violence. Get your facts straight. "

Frank wrote on Aug 3, 2008 6:02 PM:

" Corbett shot an unarmed person who was in a kneeling position, therefore he was obviously not doing his job. It was an execution, something not in his job description. This agent has a prior record of violence. "

FREE MR. CORBETT wrote on Aug 3, 2008 4:45 AM:

" We need to get the attention of the large tv news stations to cover this! The whole case should be thrown out! Mr. Corbett was doing his job! He was hired to protect the United States from illegals. If they were terrorist, Arizona would be giving him a metal. Let him go. This is sending the wrong message to illegals!!!! "

anon wrote on Aug 2, 2008 10:54 PM:

" I dont believe for a minute that our government has a grudge against border patrol officers. You could argue that this lone prosecutor might over-aggressive or over-ambitious to be filing charges but when you start talking like the "government" is against cops then you are talking nonsense. If there is no case then the judge and jury wont convict. Lets see the evidence presented. "

Whens the other trial wrote on Aug 2, 2008 9:57 PM:

" I'm sure cochise county is working very hard on recovering the latest wrong thrower from Mexico (sarcasm). When will that trial be held? I'm not holding my breath on that happening. "

Agree with Pete wrote on Aug 2, 2008 8:02 PM:

" It isn't just our government, it is especially the county attorney that has hired, a hired gun to pursue this case at a cost of hunders of thousands of dollars to the citizens of Chochise County, that is probably going to get elected again. "

Kevin F. Barkley Sierra Vista Az. wrote on Aug 2, 2008 4:52 PM:

" There should be no trial!.After an article a few days ago where an agent doing his job ends up getting "showered"with rocks and ends up in a tucson hosp.Where is the logic of justice going here?.I stand with Corbetts actions of justifiable self defense,unfortunatly someone lost their life,so when you act on deadly force you return deadly force.That simple,don't tell me for a minuite the threat was no longer imminend,it wasn't,those people who threw rock could have caused the same result as to what happened last week to another agent doing his job!Bottom line.Kill or be killed!.I think not! "

Pete wrote on Aug 2, 2008 3:49 PM:

" Our government want to railroad Corbett. They will do it that is the way they are, I know it happened to me.The government will do things that you wont believe unless it has happened to you. Our gov.thinks they are above the law, the courts and prosecutors are no better than the Mexican government. "