Corbett was charged with second-degree murder, manslaughter and negligent homicide for killing Francisco Dominguez-Rivera, an illegal immigrant from Mexico, on Jan. 12, 2007, near Naco.
Prosecutors alleged Corbett shot Dominguez-Rivera from his left hand as he was surrendering, while the defense claimed the agent fired the gun from his right hand to defend himself from the rock-wielding individual.
 Francisco Dominguez-Rivera was killed by Border Patrol Agent Nicholas Corbett in this area of the desert between Naco and Douglas. The U.S.-Mexico border fence is visible in the background. (Jonathon Shacat-Herald/Review) |
Corbett’s trial started Oct. 21 in U.S. District Court in Tucson. Judge David Bury declared a mistrial Nov. 4 when the jurors deadlocked.
The Herald/Review attempted to interview some of the jurors outside the court after the trial, but they declined to comment. However, two jurors were recently contacted by the newspaper by phone.
The names of the two jurors are not being printed to protect their anonymity. They agreed to be identified by their court assigned juror numbers. They are both men. One lives in Tucson, and the other lives in Safford.
Juror number 40, who was the jury’s foreman, said that by the end of the deliberations, the 12-member panel had voted not guilty of second-degree murder, not guilty of manslaughter, and 11-1 to acquit him of negligent homicide.
“This man was so close to being exonerated from these charges,” he said.
“We tried to piece together this whole scene with all the evidence and there are gaping holes in the puzzle. One of the gaping holes is the investigation by the Cochise County Sheriff’s Office,” he said.
“For me, and I think for a lot of people, the Cochise County investigation was absolutely incompetent,” said juror number 26.
Both jurors said some of the errors included neglecting to collect the victim’s gloves at the scene, refusing to collect rocks from the scene and deciding not to conduct gunshot residue testing to determine which hand fired the gun.
Cochise County Sheriff Larry Dever pointed out detectives did not have access to Corbett at the scene, and therefore gunshot residue tests would not have produced reliable results.
“Between the time the shooting occurred, he was spirited away and unavailable to us,” Dever said, “clearly some other things could have happened in terms of contamination.”
The two jurors also said some members of the jury felt the video footage of the incident did not match the testimony of the eyewitnesses, who claimed they and Dominguez-Rivera were surrendering when Corbett apprehended them.
“For every piece of evidence, there was reasonable doubt,” said juror number 40.
Both jurors also agreed officials should have decided not to prosecute the case once they realized Dominguez-Rivera had been wearing gloves at the time of the shooting.
“They presumed that clean hands meant there wasn’t a rock,” said juror number 40, adding, “In fairness to Corbett and his family, the state needs to re-examine the case.”
Dever acknowledged mistakes were made during the investigation. He said lessons were learned from this experience and the investigators are now better prepared.
“The investigation was presented to the prosecutor and the prosecutor made the determination that the evidence available was significant enough to take the case to trial,” Dever said. “That is their decision and not ours.”
Corbett also went on trial in February and March, but the judge also declared a mistrial due to a deadlocked jury.
The Herald/Review was unable to interview jurors at the end of the first trial in March. A woman who was a member of the jury in the first trial attended as a spectator a portion of the second trial in October. She declined to comment on the vote when questioned by the Herald/Review.
During a phone interview, Roy Warden, a self-described political activist in Tucson who watches border issues, said the outcome of the second Corbett trial shows there is “a change, a shifting and a hardening” of attitude regarding the country’s open border policy.
“I think the prosecution put on a really good case. It doesn’t mean I believe he should have been convicted. But I believe it would have been easy for that jury to convict him,” said Warden, who spent time protesting illegal immigration outside the courthouse during both of Corbett’s trials, as well as being present in the courtroom for some of the testimony at the most recent trial.
“I believe to get 11 people to rule like they did sends a signal other than the mere facts of the case,” he said. “You can’t ask jurors to remove themselves from the reality of what they see on a daily basis.”
Warden added, “In the first trial, the jury came close to conviction on the exact same evidence. I think between the two trials you can see a change in public mood. I think it would be impossible to ever convict him now.”
In a statement released after the trial, Dominguez-Rivera’s father, Renato, said the family is “disappointed” the jury did not find Corbett guilty.
“We will continue to seek justice for Francisco, and we call on the Cochise County prosecutor’s office to try agent Corbett again,” he stated.
Peter Schey, president of the Center for Human Rights and Constitutional Law, which is representing the victim’s family, also urges the prosecutor to retry the case.
“The killing of Francisco Dominguez Rivera was totally unjustified and inexcusable. The inability of the jury to reach a unanimous decision is disappointing. This incident will hopefully send a message to the United States Border Patrol and its agents that the use of unnecessary deadly force against migrants crossing the border will result in criminal prosecution in the future,” he said in a statement.
“This tragic incident could have been avoided if the U.S. Border Patrol had only exercised greater care and caution in the screening of its recruits and training of its agents,” the statement continues.
Cochise County Attorney Ed Rheinheimer could not be reached for comment regarding whether he will seek prosecution for a third time.
During a phone interview, Corbett’s defense attorney, Sean Chapman, said, “We’re just waiting for him to make a decision on whether he is going to go forward or not, and if he does we will try it again.”
Herald/Review reporter Jonathon Shacat can be reached at 515-4693 or by e-mail at jonathon.shacat@bisbeereview.net.
