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TUCSON — The federal judge presiding over Border Patrol Agent Nicholas Corbett’s murder trial decided Monday he will not allow the defense to introduce evidence that the victim had a tattoo or infer the tattoo was gang-related.
Corbett is charged with second-degree murder, manslaughter and negligent homicide for shooting and killing an illegal immigrant named Francisco Dominguez-Rivera on Jan. 12, 2007, near Naco. A pretrial hearing was held Monday in U.S. District Court in Tucson. The trial starts today with jury selection and is scheduled to last two weeks.
The prosecution contends the shooting was unjustified because the victim was surrendering during the apprehension. The defense claims Corbett acted in self-defense as the victim threatened him with a large rock.
The victim had a tattoo on his hand that is commonly known as La Vida Loca (“the crazy life”). The defense wanted to present an expert who would testify that as a result of the tattoo, the victim was violent or aggressive.
 U.S. Border Patrol agent Nicholas Corbett, pictured on June, 15, 2007, will stand trial on various charges stemming from a shooting of an illegal immigrant. (Ed Honda-Herald/Review) |
Special prosecutor Grant Woods said the tattoo is common among both gang members and Mexican youth in general. He asserted that Dominguez-Rivera was never a member of a gang, and he was never charged with any crimes in Mexico or the United States.
Judge David Bury said the evidence of the tattoo will be precluded during the trial.
The prosecution intends to present testimony from the victim’s family members and a former employer regarding his peaceful nature. Lead defense attorney Sean Chapman suggested the presentation of evidence of the victim’s good character should allow the defense to explore whether he was a gang member.
Bury said the prosecution can introduce evidence of the peacefulness of the victim, but it may be taking a risk by doing so. He added he would allow the defense to present evidence of the gang membership only if a witness can testify regarding the affiliation.
The judge made a similar ruling on the tattoo and good character evidence for the first trial in this case, which took place in February and March and resulted in a mistrial due to a hung jury.
Bury also decided the defense is not allowed to introduce evidence that the victim possessed a medication that looked similar to a stimulant. The prosecution had argued the medicine is actually ibuprofen. Besides, Woods pointed out, the autopsy did not show any drugs in the victim’s system.
In June, the defense filed a motion for change of venue of the second trial due to extensive media coverage of this case in particular and immigration issues in general. Judge Bury ruled in late July that the trial would remain in Tucson.
On Monday, the defense reinstated its motion for change of venue, citing an article published Sunday in a Tucson newspaper about how illegal immigrants are treated by Border Patrol while in detention. The prosecution did not take a position on the motion to change the venue.
The judge said he thought the first trial received extensive media coverage, but that did not mean the trial was unfair. He pointed out that only a few prospective jurors had even heard about the case. He added he would review the article in question.
The trial will start today with jury selection. The judge said he plans to call in a pool of 100 people. From that group, a panel of 12 jurors and two alternates will be selected. Opening statements by the prosecution and defense could be made as soon as this afternoon.
Judge Bury told Woods that he would not be permitted to make the same type of opening statement as he did during the first trial. He said prosecutors are supposed to set forth facts without creating drama, sympathy or prejudice. Woods will not be allowed to show jurors a photo of Dominguez-Rivera, unless it was taken at the scene of the incident.
Also, during the trial Woods can’t make any dramatic statements regarding the emotional loss to the victim’s family, he can’t ask the defendant or other witnesses to say who is paying for the legal defense costs, he can’t refer to Corbett as a criminal, and he can’t suggest that the Border Patrol witnesses don’t want to be in court testifying against Corbett.
Border Action Network, a Tucson-based human rights group, plans to display a memorial near the courthouse in honor of the victim during the trial. Other protesters may gather, as was the case during the first trial. Chapman expressed concerns that jurors could be exposed to them.
The judge said protesters are not allowed on court property. He said he does not want to limit a person’s right to free speech, assemble or demonstrate, but he said he would consider making a decision on the matter if there is a problem.
Reporter Jonathon Shacat can be reached at 515-4693 or by e-mail at jonathon.shacat@bisbeereview.net.
RAD wrote on Oct 23, 2008 5:32 AM: