Thread: Corbett: U.S. border agent faces new trial in slaying

U.S. border agent faces new trial in slaying
by Sean Holstege - Oct. 19, 2008 12:00 AM
The Arizona Republic

This week federal prosecutors will open a murder trial against an Arizona border agent. But for many people, the case also will put on trial the nation's border security strategy.

The retrial of U.S. Border Patrol agent Nicholas Corbett in Tucson is inflaming the divided passions about immigration and border security.

Corbett's defenders say the case is about a man defending himself against a violent attacker in a dangerous place, and then being punished, for political reasons, for doing his job.
They say the confrontation that led to Corbett shooting an illegal immigrant is reason for stricter security and tighter immigration laws.

Prosecutors say the case has nothing to do with border issues. Rather, it's about upholding the law to punish a man who abused his power to commit murder.

Human-rights activists also say the case represents an overly severe border policy that needs stricter oversight.

The Corbett case has attracted attention on each side of the border, with Mexico calling for Corbett's prosecution.

The fact that Corbett, 41, fired a single fatal bullet into 22-year-old Francisco Dominguez-Rivera in January 2007 is not in dispute. The issue is whether the shooting was self-defense.

Corbett, who remains on duty, is charged with second-degree murder, manslaughter and negligent homicide. He faces up to 20 years in prison if convicted. In March, a jury deadlocked in the case.

The retrial begins Tuesday with jury selection.


What happened

On the afternoon of Jan. 12, 2007, Corbett was patrolling in his truck in a remote desert area near Douglas. He spotted, then chased, four illegal immigrants who knew they had been discovered and were fleeing to Mexico.

Corbett cut them off within 100 yards of the border. He jumped out of his vehicle and ordered them to surrender.

Three illegal immigrants, Dominguez-Rivera's relatives, obeyed and lay down in the dirt. Dominguez-Rivera, who was from southern Mexico, was slow to give up.

Corbett circled behind his truck and, moments later, shot from less than a foot away. The bullet entered Dominguez-Rivera's left armpit and punctured his heart and other vital organs.

A bullet casing matching Corbett's ammunition was found next to his head. The slug recovered from the body matched Corbett's weapon. The shot came from above and slightly behind the victim, the medical examiner concluded.

The incident was captured in grainy video by a camera attached to a border-fence pole.

That is where all agreement stops.


The controversy

Grant Woods, special prosecutor for the Cochise County Sheriff's Office, said the evidence clearly points to murder, not self-defense.

"The evidence is pretty overwhelming," Woods said.

According to initial police reports, Corbett told investigators he shot Dominguez-Rivera from about 4 feet away when the illegal immigrant raised his arm to throw a rock at Corbett.

The video, gunpowder residue, autopsy data and eyewitness testimony from the victim's three relatives show the shooting could not have occurred as Corbett described, prosecutors argue.

But the investigation was poorly handled, both sides agree. Investigators left evidence at the crime scene that had been contaminated for almost two hours, officials later testified. Witnesses were not kept apart.

An official from the Mexican consulate met with the three family members before they gave statements and promised them government support. He told them President Felipe Calderón was adamant that Corbett be made an example, according to a transcript of the meeting in court documents. A recording of Border Patrol dispatch tapes was destroyed.

Critical to defense attorneys is what happened to a pair of gloves worn by Dominguez-Rivera. If his gloves had dirt and rock bits on them, they might indicate that he had been threatening Corbett, Corbett's lawyers argued.

First, investigators said the gloves had been collected. Then, when the gloves were missing from the evidence log, officers said they had been given to the family. When the gloves appeared at the crime scene a year later, investigators concluded they had given the family a different pair of gloves.

"He didn't do this," Corbett's lawyer, Sean Chapman, said. "He did what he had to do to protect himself."

Defense attorneys argued that investigators misrepresented Corbett's initial statements, that he didn't tell them he was 4 feet away. On the stand in the first trial, Corbett claimed he shot Dominguez-Rivera at close range as the man started to smash a rock on the agent's head.

"The physical and forensic evidence is consistent with his testimony," Chapman said, referring to evidence about the bullet's path, the close range of fire, the video and other evidence.

A judge disallowed evidence from the prosecution and the defense that questioned the character of Corbett and Dominguez-Rivera.


Border agents' jobs


The shooting occurred in one of the busiest smuggling routes along the U.S.-Mexican border. Encounters with heavily armed drug smugglers are commonplace there, as are rock-throwing assaults.

Between Oct. 1 and June 30, agents were attacked 827 times along the entire border. Three-quarters of those were rock attacks, often to divert agents' attention; those increased 40 percent over the same period a year before. Border agents typically patrol alone and arrest 20 or 30 illegal immigrants at a time.

"It is an inherently dangerous job," said Border Patrol Assistant Chief Lloyd Easterling.

He said agents spend hours training on when to use deadly force. They are told to show discretion based on the risk to them and others.

During 850,000 arrests on the Mexican border last year, agents fired their weapons 51 times, a sign of restraint, Easterling said.

Corbett's trial comes months after two agents in Texas were convicted of shooting a drug smuggler and trying to cover up the crime. Both cases have incensed border-security advocates.

Edward Truffly, president of National Border Patrol Council Local 2544, the union representing Corbett, highlighted the case in a letter to President Bush in August complaining about a weak response to an incident in which Mexican troops held another agent at gunpoint near Ajo.

"Do the Mexican soldiers deserve to be treated better than our own agents?" Truffly wrote.

"Local 2544 is putting up Corbett's defense, and we are very proud to do it," a union Web site said about the case. "This could happen to any of us, especially given the current political climate."


Rights advocates

Human-rights organizations view the case in terms of the border's increasing militarization and growing anti-immigrant sentiments.

"A guilty verdict is really important to sending the message to Border Patrol agents that nobody is above the law and that everybody is accountable," said Jennifer Allen, executive director of Border Action Network, a Tucson-based civil-rights group that held a vigil during the first trial. "The Corbett trial is the tip of the iceberg. Below the surface is a whole labyrinth of issues."

Last year, Border Action Network alleged in a report that abuse, mistreatment and violation of the rights of immigrants and citizens is routine in the borderlands.

In a three-month period, Border Action volunteers documented 116 cases of abuse, ranging from unlawful arrest and torture to verbal abuse. Border Patrol agents were blamed in about a tenth of the cases, and local police and sheriff's deputies in much of the rest. The Border Patrol insists that the maltreatment claims are exaggerated.

Amid the conflicts, the prosecution and defense must find a fair jury.

"Immigration is a hot-button issue, and there is a tendency to confuse the facts of this case with that debate," Chapman, Corbett's defense attorney, said. But in this case, "Corbett acted in self-defense."

Woods, the prosecutor, said the case speaks to the state's and nation's respect for human rights.

"I can't think of too many countries that would look at the evidence and take the side of the people who are here illegally against its own officers only because it's the right thing to do," Woods said. "In this country, we don't shoot people from behind during an act of surrender."

www.azcentral.com

But the investigation was poorly handled, both sides agree. Investigators left evidence at the crime scene that had been contaminated for almost two hours, officials later testified. Witnesses were not kept apart.
An official from the Mexican consulate met with the three family members before they gave statements and promised them government support. He told them President Felipe Calderón was adamant that Corbett be made an example, according to a transcript of the meeting in court documents. A recording of Border Patrol dispatch tapes was destroyed.

There is NO way I would believe these 3 witnesses, especially after they were coached by the mexican consulate. Did the video pick up sound? Why were the recording tapes destroyed? Who had access to them? Sounds like there's a plan to throw this agent under the bus. Should be a mistrial.

Retrial set to start for Border Patrol agent


By Arthur H. Rotstein
ASSOCIATED PRESS

4:20 p.m. October 20, 2008

TUCSON, Ariz. – A U.S. Border Patrol agent goes on trial again Tuesday in Tucson for the fatal shooting of an illegal immigrant.
The second trial for Agent Nicholas Corbett comes more than seven months after jurors in the first case told a federal judge they were hopelessly deadlocked.

Prosecutors contend Corbett shot Francisco Javier Dominguez Rivera of Puebla, Mexico, without provocation in January 2007 just north of the Mexican border.

Defense lawyers maintain that Corbett acted in self-defense as Dominguez threatened to smash his head with a rock. Corbett, who gave that account during his first trial, is charged with second-degree murder, manslaughter and negligent homicide.

Jury selection begins Tuesday, with opening statements possible later in the day or on Wednesday, and the trial is expected to take two weeks at most.

At a pretrial hearing Monday, U.S. District Judge David Bury sidestepped a renewed defense motion to move the trial because of adverse publicity Corbett's lawyers contend that he received earlier in the year.

And defense lawyers Sean Chapman and Jim Calle cited a news story on Sunday in the Arizona Daily Star about a report criticizing Border Patrol treatment of illegal immigrants in detention as the latest example. But Bury said he would watch for signs of unfairness or prejudice as he questions prospective jurors individually.

Bury triggered a heated discussion with special prosecutor Grant Woods when he cautioned Woods against being dramatic or trying to invoke sympathy from jurors toward Dominguez's family when he makes his opening statements.

Bury said he should have interrupted Woods' opening in the first trial for acting inappropriately. “You tried this case as a wrongful death case,â€

Threat to border agent at issue in immigrant-slaying retrial
Crux is whether shooting was self-defense
The Arizona Republic
October 21, 2008

This week, federal prosecutors will open a murder trial against an Arizona border agent. For many people, the case also will put on trial the nation's border security strategy.
The retrial of U.S. Border Patrol Agent Nicholas Corbett in Tucson is inflaming the divided passions about immigration and border security.
Corbett's defenders say the case is about a man defending himself against a violent attacker in a dangerous place, and then being punished - for political reasons - for doing his job.
They say the confrontation that led to Corbett shooting an illegal immigrant is reason for stricter security and tighter immigration laws.
Prosecutors say the case has nothing to do with border issues. Rather, it's about upholding the law to punish a man who abused his power to commit murder, prosecutors say.
Human rights activists say the case represents an overly severe border policy that needs stricter oversight.
The Corbett case has attracted attention on each side of the border, with Mexico calling for Corbett's prosecution.
That Corbett, 41, fired a single fatal bullet into 22-year-old Francisco Dominguez Rivera in January 2007 is not disputed. The issue is whether the shooting was self-defense.
Corbett, who remains on duty, is charged with second-degree murder, manslaughter and negligent homicide. He faces up to 20 years in prison if convicted. In March, a jury deadlocked in the case.
The retrial begins Tuesday with jury selection. At a pretrial hearing Monday, U.S. District Judge David Bury sidestepped a renewed defense motion to move the trial because of adverse publicity Corbett's lawyers contend that he received earlier in the year.
What happened
On the afternoon of Jan. 12, 2007, Corbett was patrolling in his truck in a remote desert area near Douglas. He spotted, then chased, four illegal immigrants who knew they had been discovered and were fleeing to Mexico.
Corbett cut them off within 100 yards of the border. He jumped out of his vehicle and ordered them to surrender.
Three illegal immigrants, Dominguez Rivera's relatives, obeyed, lying down in the dirt. Dominguez Rivera, who was from southern Mexico, was slow to give up.
Corbett circled behind his truck and, moments later, shot from less than a foot away. The bullet entered Dominguez Rivera's left armpit and punctured the heart and other vital organs.
A bullet casing matching Corbett's ammunition was found next to Dominguez Rivera's head. The slug recovered from the body matched Corbett's weapon. The shot came from above and slightly behind the victim, the medical examiner concluded.
The incident was captured in grainy video by a camera attached to a border-fence pole.
That is where all agreement stops.
The controversy
Grant Woods, special prosecutor for the Cochise County Sheriff's Office, said the evidence clearly points to murder, not self-defense.
"The evidence is pretty overwhelming," he said.
According to initial police reports, Corbett told investigators he shot Dominguez Rivera from about four feet away, when the illegal immigrant raised his arm to throw a rock at Corbett.
The videotape, gunpowder residue, autopsy data and eyewitness testimony from the victim's three relatives show the shooting could not have occurred as Corbett described, prosecutors argue.
The investigation was poorly handled, both sides agree. Investigators left evidence at the crime scene that had been contaminated for almost two hours, officials later testified. Witnesses were not kept apart.
An official from a Mexican consulate met with the three family members before they gave statements and promised them government support. He told them Mexico President Felipe Calderón was adamant that Corbett be made an example, according to a transcript of the meeting in court documents. A recording of Border Patrol dispatch tapes was destroyed.
Critical to defense attorneys is what happened to a pair of gloves worn by Dominguez Rivera. If dirt and rock bits were found on the immigrant's gloves, it might indicate that he had threatened Corbett, defense lawyers argue.
First, investigators said the gloves had been collected. Then, when the gloves were missing from the evidence log, officers said they had been given to the family. When the gloves appeared at the crime scene a year later, investigators concluded they had given the family a different pair of gloves.
"He didn't do this," Corbett's lawyer, Sean Chapman, said. "He did what he had to do to protect himself."
Defense attorneys argued that investigators misrepresented Corbett's initial statements, that he didn't tell them he was four feet away. On the stand in the first trial, Corbett claimed he shot at close range as Dominguez Rivera started to smash a rock on the agent's head.
"The physical and forensic evidence is consistent with his testimony," Chapman said, referring to evidence about the bullet's path, the close range of fire, the video and other evidence.
A judge disallowed evidence from the prosecution and the defense that questioned Corbett's and Dominguez Rivera's character.
Border agents' jobs
The shooting occurred in one of the busiest smuggling routes along the U.S.-Mexico border. Encounters with heavily armed drug smugglers are commonplace there, as are rock-throwing assaults.
Between Oct. 1, 2007, and June 30 this year, agents were attacked 827 times along the entire border. Three-quarters of those were rock attacks, often to divert agents' attention; those increased 40 percent over the same period a year before. Border agents typically patrol alone and arrest 20 or 30 illegal immigrants at a time.
"It is an inherently dangerous job," Border Patrol Assistant Chief Lloyd Easterling said.
Agents spend hours training on the use of deadly force, he said. They are told to show discretion based on the risk to them and others.
During 850,000 arrests on the Mexican border last year, agents fired their weapons 51 times, a sign of restraint, Easterling said.
Corbett's trial comes months after two agents in Texas were convicted of shooting a drug smuggler and trying to cover up the crime. Both cases have incensed border security advocates.
Edward Truffly, president of National Border Patrol Council Local 2544, the union representing Corbett, highlighted the case in an August letter to President Bush that complained about weak response to Mexican troops' having held another agent at gunpoint near Ajo.
"Do the Mexican soldiers deserve to be treated better than our own agents?" Truffly asked.
"Local 2544 is putting up Corbett's defense, and we are very proud to do it," a union Web site said about the case. "This could happen to any of us, especially given the current political climate."
Rights advocates
Human-rights organizations view the case in terms of the border's increasing militarization and growing anti-immigrant sentiments.
"A guilty verdict is really important to sending the message to Border Patrol agents that nobody is above the law and that everybody is accountable," said Jennifer Allen, executive director of Border Action Network, a Tucson-based civil-rights group that held a vigil during the first trial. "The Corbett trial is the tip of the iceberg. Below the surface is a whole labyrinth of issues."
Last year, Border Action Network alleged in a report that abuse, mistreatment and violation of the rights of immigrants and citizens is routine in the borderlands.
In a three-month period, Border Action volunteers documented 116 cases of abuse, ranging from unlawful arrest and torture to oral abuse. Border Patrol agents were blamed in about one-tenth of the cases, and local police and sheriff's deputies in much of the rest. The Border Patrol insists that the maltreatment claims are exaggerated.
Amid the conflicts, the prosecution and defense must find a fair jury.
"Immigration is a hot-button issue, and there is a tendency to confuse the facts of this case with that debate," defense lawyer Chapman said. But in this case, "Corbett acted in self-defense."
Prosecutor Woods said the case speaks to the state's and nation's respect for human rights.
"I can't think of too many countries that would look at the evidence and take the side of the people who are here illegally against its own officers only because it's the right thing to do," he said. "In this country, we don't shoot people from behind during an act of surrender."
The Associated Press contributed to this article.

http://www.tucsoncitizen.com/daily/local/100179.php

Prosecutor: Border agent killed 'passive' migrant
By ARTHUR H. ROTSTEIN – 3 hours ago

TUCSON, Ariz. (AP) — A Border Patrol agent fatally shot a "peaceful and passive" illegal immigrant without provocation as he tried to surrender, a prosecutor told jurors Wednesday during opening statements of the agent's retrial.

Nicholas Corbett is charged with second-degree murder, manslaughter and negligent homicide in the death of Francisco Javier Dominguez Rivera, of Puebla, Mexico. Jurors can convict on only one charge.

Corbett's first trial ended in a mistrial in March because of a hung jury. The case is unusual because it involves state criminal charges but is being tried in federal court because Corbett is a federal law enforcement agent.

At least five times during opening statements, special prosecutor Grant Woods alluded to the peaceful nature of Dominguez, who was killed about 100 yards north of the Mexican border.

Dominguez "was not hotheaded," said Woods, a former Arizona attorney general. He said Corbett had lied in alleging that Dominguez threatened to smash his head with a rock, as well as in his explanation of the confrontation and how the shooting occurred.

Woods said Wednesday that he hoped to show Dominguez's good character through witnesses, including a woman who had employed him near New York City.

Woods said Wednesday that Dominguez, his two brothers and a brother's girlfriend had crossed into Arizona on Jan. 12, 2007, but decided to return to Mexico because of bad weather and a number of nearby patrol agents. They were near the border when they saw Corbett's vehicle heading toward them.

"They didn't run; they didn't hide," Woods said. "They figured they would be apprehended."

He said the brothers and girlfriend will testify that all four were surrendering when Corbett hit Dominguez in the back of the head and was pushing him down from behind with the gun in his left hand when the weapon fired.

Woods said an autopsy showed the bullet entered under Dominguez's left armpit, "blowing out the entire lower part of his heart."

But defense attorney Sean Chapman said Corbett defended himself with deadly force, as state law allows.

"The evidence will show that Francisco Dominguez was not a peaceful man," Chapman said, "that he had a rock the size of a baseball or softball, and tried to smash it into the head of a federal law enforcement officer."

He also called the prosecution's three witnesses "absolute liars" and suggested the Cochise County Sheriff's Office conducted an incompetent investigation. He said investigators didn't find a pair of gloves that Dominguez had been wearing until a year later at the crime scene and that they didn't test for gunshot residue on Corbett's hands, among other claims.

Chapman said his client was "accused falsely of a crime he did not commit. He is innocent."

Conviction on the second-degree murder charge could bring a sentence of 10 to 22 years in prison. The manslaughter charge carries a possible seven to 21 years sentence, and negligent homicide four to eight years.

http://ap.google.com

Jury gets border agent case after closing arguments end
October 30th, 2008 @ 7:07pm
by Associated Press

TUCSON, Ariz. - A federal jury began deliberations Thursday in the trial of a U.S. Border Patrol agent charged in the shooting death of an illegal immigrant last year.

Jurors in the second trial of Nicholas Corbett must determine whether he's guilty or innocent of second-degree murder, manslaughter or negligent homicide in the January 2007 death of Francisco Javier Dominguez Rivera of Puebla, Mexico.

The first trial ended in March with a jury unable to reach an unanimous verdict.

Jurors deliberated Thursday afternoon before adjourning. They were scheduled to resume Friday morning.

In closing arguments earlier Thursday, special prosecutor Grant Woods pushed for a conviction.

A guilty verdict could bring a sentence ranging from 10 to 22 years for second-degree murder, seven to 21 years for manslaughter or four to eight years for negligent homicide.

``The truth is that this defendant came up from behind a young man who was surrendering, going down in an act of surrender, and killed him, and in this country, that cannot stand,'' Woods said.

Woods said Dominguez's two brothers and one brother's girlfriend, who had crossed with Dominguez into Arizona near Naco on the day of the shooting, had repeatedly told the truth - during interviews with investigators, at a preliminary hearing, earlier this year and during the current trial.

``They know nothing about forensic science, ballistics or human anatomy, and yet, their eyewitness account they gave that night has held up throughout,'' Woods said.

The three testified that Dominguez was shot without provocation. Woods said their testimony remained unshaken and valid.

However, defense attorney Sean Chapman said Corbett was innocent of any wrongdoing - shooting in self-defense as Dominguez attempted to attack him with a rock - and he called for his acquittal.

Chapman said the agent had not received a fair trial ``because of the ridiculous incompetence and negligent investigation'' by the Cochise County sheriff's investigators and because three witnesses who were Dominguez lied in testifying.

During his closing arguments, Woods reminded jurors that Corbett told four Border Patrol supervisors at the scene what had happened - that there was a confrontation near his vehicle, Dominguez threatened him with a rock and the agent shot in response.

Yet, Woods noted that in testimony during the first trial, the 6-foot-4 Corbett described a different, hand-to-hand confrontation in which he shot the 5-foot-3 Dominguez after he allegedly tried to smash Corbett in the head with a rock. Corbett didn't take the stand in the latest trial.

When Woods also suggested that Corbett should have said something to the agents when he later learned they described in their reports something that didn't happen, Chapman objected, and a short time later asked for a mistrial.

Chapman contended that Woods had violated Corbett's 5th Amendment right to not testify, but U.S. District Court Judge David Bury said a mistrial was not merited.

Chapman said the eyewitnesses were motivated to lie, pressured by Mexican government officials intent on seeing Corbett convicted and given housing, clothing and money in return for their testimony.

Chapman also said that the three eyewitnesses, who were taken into custody by the Border Patrol, were kept together for four hours after the shooting - giving them time ``to make up a story and they did.''

Woods said that the Border Patrol could have separated them but didn't. But Chapman also hammered away at the failure of investigators to take into evidence the gloves that Dominguez had been wearing, to gather up rocks in the area, including one next to the victim's right knee and to collect gunshot residue from Corbett's uniform and hands.

Chapman said the potential evidence samples would have exonerated Corbett and confirmed Dominguez's attempts to assault the agent.


http://www.ktar.com/?nid=6&sid=982791

It's a sad state of affairs when we ask our Border Patrol Agents to go into, essentially a war zone and then put them on trial for defending our border and their own lives. If agents are not allowed to use their weapons then they should not be allowed to carry them in the first place. Common sense in this country has completely disappeared.