Published: 02.06.2007

Border Patrol's union claiming shooting investigation being mishandled
By Brady McCombs
ARIZONA DAILY STAR
The Border Patrol’s union is claiming the investigation of into the shooting death of a 22-year-old Mexican man by an agent on the border near Douglas has been mishandled.
A pair of Border Patrol agents working at the Naco processing center the night of the incident, Jan. 12, wrote memos to Tucson Sector Chief Michael Nicley alleging that the Mexican Consulate was allowed to interview some of the six witnesses before U.S. investigators, which would be a breach of protocol and would put the legitimacy of those witnesses’ statements in doubt.
The statements — released by the office Rep. Tom Tancredo’s, R-Colo. — say consular officers were brought into the processing center, left alone and allowed to speak with witnesses had had not yet given their statements to a Cochise County Sheriff’s Office investigator and Border Patrol official who were interrogating witnesses one by one in a separate room.
The Mexican Consulate in Douglas and the investigating agency, Cochise County Sheriff’s Office, deny the accusations. Investigators questioned each of the witnesses before allowing staff from the Mexican Consulate to do so, said Carol Capas, spokeswoman for the Cochise County Sheriff’s Office.
Mexican consulate staff didn’t begin interviewing the witnesses until midnight after Sheriff’s investigators had finished, said Oscar de la Torre, the Mexican Consul in Douglas. Prior to that, they weren’t even in the building, he said.
Border Patrol officials declined to comment on the internal matter but said protocol requires the Mexican consulate officials to wait until the witnesses have been interviewed by U.S. investigators, said Gustavo Soto, Border Patrol Tucson Sector Spokesman.
The Arizona chapter of the National Border Patrol Council (the agency’s union) is asking that Nicley conduct an investigation into the reported breach of protocol, said Brandon Judd, vice president of Local 2544.
“My immediate concern is that thosethree witness were able to be coached by the Mexican consulate,” Judd said. “Three witnesses were able to come up with a testimony that is exactly the same, which completely taints the investigation.”
The accusations are the latest plot twist in an investigation that is being closely followed from Mexico City to Washington D.C. Mexican president Felipe Calderón condemned the killing in a diplomatic note given to U.S. State Department on Jan. 16, and the victim’s parents demanded the death penalty for the agent.
Immigrant-rights advocates within the United States have renewed their call for an independent commission to investigate agent shootings while Border Patrol supporters are working to ensure the agent is granted a fair investigation.
“When a third party gets to talk to these witnesses, who knows what took place? They’ve been tainted,” said Dave Stoddard, a former Border Patrol supervisor who retired in 1996 after 27 years with the agency. “Whether the agent is guilty of gunning the guy down in cold blood or not, who can get a fair trial here?”
The shooting occurred the afternoon of Friday, Jan. 12, about 150 yards north of the border between Bisbee and Douglas. A male agent — whose name and age are being withheld by the agency and is on paid administrative leave — responded to a call about a group of seven people who were crossing the desert, the Border Patrol says.
He took six of the seven people into custody without incident but then became involved in a fight with Francisco Javier Dominguez Rivera, 22, of Puebla, Mexico, and shot him to death, Border Patrol officials said.
Dominguez was shot one time on his side underneath his armpit, the Mexican Consulate in Douglas has said.
Other details — including whether Dominguez had a gun or weapon or what happened during the reported scuffle — remain a mystery. The Cochise County Sheriff’s Office has repeatedly denied public record requests by the Arizona Daily Star to view the autopsy results (performed Jan. 17), official reports of the incident or watch a video that was taken by Border Patrol surveillance cameras from about one mile away.
While Cochise County is handling the lead investigation, the FBI has gathered evidence for an assault on a federal agent investigation, as it does with any shooting involving a federal agent, said Deborah McCarley, an FBI spokeswoman in Phoenix. But, with the suspect dead, they aren’t carrying out a full-fledged investigation because it wouldn’t make sense, she said.
Upon completion of the Cochise County investigation, the FBI will send the packet of information to the Department of Justice, which will determine if any civil rights have been violated, she said.
Dominguez, a construction worker in Mexico, was trying to cross into the United States illegally with a group that included his two brothers, ages 23 and 20, and his sister-in-law, 19.
Those three remain in the United States in custody of Mexican officials, de la Torre said. The other three witnesses agreed to voluntary deportation on Jan. 31 and returned to their homes in Mexico after cooperating with investigators, he said.
Cochise County Sheriff’s investigators are in the process of completing the report to send to the county attorney but no timetable has been set, Capas said.
http://www.azstarnet.com/sn/printDS/167964