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TUCSON — A medical expert called by the defense Tuesday in federal court said he feels more strongly now than previously that Border Patrol Agent Nicholas Corbett’s version of events resulting in the death of an illegal immigrant from Mexico is consistent with the evidence in the case.
Richard Mason, a forensic pathologist in Santa Cruz County in California, testified the autopsy results support the defendant’s description of what happened and contradicts the accounts of the eyewitnesses.
He acknowledged during cross-examination by the prosecution that his opinion differs significantly from the testimony he gave at the defendant’s first trial. In March, he testified that it was possible the eyewitness statements were consistent with the evidence.
Mason’s testimony on Tuesday disagrees with statements made in court on Friday by Phillip Keen, a prosecution witness who is the current medical examiner for Yavapai County and former medical examiner for Maricopa County.
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Keen testified the heart can move forward slightly when a person leans forward. As a result, he said, the autopsy findings on Dominguez-Rivera are more consistent with the testimony of the eyewitnesses than that of the defendant.
Mason, on the other hand, said it is not possible to determine the position of someone’s heart based on the position of their body.
Corbett is charged with second-degree murder, manslaughter and negligent homicide for killing Francisco Dominguez-Rivera on Jan. 12, 2007, near Naco. The case is being retried because the first trial earlier this year resulted in a hung jury.
Prosecutors allege Corbett acted unjustifiably by shooting the victim as he was in the process of kneeling to surrender. Corbett claims he was involved in hand-to-hand combat with the victim. He said the victim was trying to smash his head with a rock, so he fired the gun.
The trial is currently in its second week. It is scheduled to last two weeks. The prosecution rested Tuesday morning. The defense called some witnesses Tuesday and expects to rest its case today. Closing arguments could be made on Thursday.
Also Tuesday, John Maciulla, a criminalist for the Arizona Department of Public Safety, testified he conducted tests on Corbett’s Beretta pistol and the clothing worn by the victim. He said burnt fiber analysis showed the bullet that hit Dominguez-Rivera was fired at a distance of between 3 inches to 12 inches away.
He also said this particular gun ejects bullet casings to the right and rearward. But, on cross-examination by the defense, he said if the gun were held in a downward and twisted position, the casing could move upward. Officials at the scene found the casing next to Dominguez-Rivera’s body. He also acknowledged the casing could have been kicked to that location.
Elmer Pellegrino, director of the police academy at Fullerton College in California, testified that the stressful nature of a shooting incident can cause officers to experience “tunnel vision,” in which they don’t know what is happening around them, or “framing,” in which time seems to move in slow motion.
On cross-examination by the prosecution, he said officers could inadvertently discharge a firearm if they have their finger on the trigger.
Kelly Flatley, the founder of Bear Naked, a granola company now owned by Kellogg’s, testified Tuesday that Dominguez-Rivera worked at the factory in Connecticut prior to his death. She said he was “ambitious,” “gentle,” “kind” and “calm.”
The defense, meanwhile, contends Dominguez-Rivera was affiliated with a gang because he had a tattoo on his hand. Maciulla said he was not paid by the prosecution to testify in this case.
Mason said he is being paid by the defense $450 per hour, plus $2,100 for court testimony. He said the total bill so far was $12,000, but the final amount would be higher.
Pellegrino received money from the defense to testify at Corbett’s first trial in March. However, on Tuesday, he was not asked to disclose how much money the defense paid him to testify at this trial.
Flatley was granted immunity by the court so that she can’t be prosecuted for admitting that she employed an illegal worker.
Herald/Review reporter Jonathon Shacat can be reached at 515-4693.
Too bad too late wrote on Nov 2, 2008 3:43 PM: