Thread: Border agent's first-degree count is tossed

Tucson Region
Border agent's first-degree count is tossed
Serious charges remain in death of Mexican man
By Brady McCombs
Arizona Daily Star
Tucson, Arizona | Published: 08.07.2007
http://www.azstarnet.com/metro/195250

BISBEE — A judge dismissed first-degree murder charges against a Border Patrol agent in the shooting death of a Mexican man near the border but ordered him to stand trial on counts of second-degree murder, manslaughter and negligent homicide.

Bisbee Justice of the Peace David Morales delivered his decision to a packed courtroom at about 5:30 p.m. Monday after hearing more than seven hours of testimony in a preliminary hearing for agent Nicholas Corbett, 39.

Morales determined that the Cochise County Attorney's Office didn't demonstrate probable cause to warrant the first-degree charge, but it did meet that standard for the other three.

The shooting of Francisco Javier DomÃ*nguez Rivera, 22, of Puebla, Mexico, occurred on Jan. 12 near the Mexican border between Bisbee and Douglas.

Corbett was trying to apprehend the slain man and his two brothers, René DomÃ*nguez Rivera, 21, and Jorge DomÃ*nguez Rivera, 24; and the man's sister-in-law, Sandra Vidal Guzmán, 20.

"We are not surprised by this," said Sean Chapman, a Tucson attorney representing Corbett. "We're happy he dismissed the first-degree-murder charge, and we'd expected him to do that."

Gerald Till, Cochise deputy county attorney, would not comment other than to say: "I just put the case on and let the judge decide."
The judge's decision was fair, said Angelita Nuñez of Douglas, who was one of the immigrant-rights supporters who attended the hearing.
A trial will provide an opportunity for DomÃ*nguez Rivera's family to get justice, said Jennifer Allen, director of the Border Action Network, a Tucson-based immigrant-rights organization.

Till said Superior Court probably will set an arraignment date within a month. The trial will likely be held in Cochise County Superior Court, although the defense could request that it be held in federal court in Tucson. A jury will have the option of convicting Corbett on second-degree murder or a lesser charge of either manslaughter or negligent homicide.

The prosecution brought 10 witnesses to the stand Monday, including René DomÃ*nguez Rivera, Jorge DomÃ*nguez Rivera and Vidal Guzmán.
Defense attorneys peppered them with questions, aiming to show inconsistencies in their accounts.

On several occasions, the lawyers played audiotapes to point out differences in what the witnesses had told police after the shooting and what they testified to on Monday.

But all three stuck to their original story that Corbett shot Francisco Javier DomÃ*nguez Rivera from behind and that he had not tried to throw a rock at Corbett or make any threatening gestures.

During their cross-examinations, defense attorneys questioned the decision by the Cochise County Sheriff's Department not to separate the witnesses immediately after the shooting. They also accused the Mexican government of trying to influence the testimonies of the slain man's brothers and sister-in-law by providing them with food, clothes and lodging, and arranging for visas for them to remain in the United States while the case runs it course.

René DomÃ*nguez Rivera, Jorge DomÃ*nguez Rivera and Vidal Guzmán acknowledged the support from the Mexican Consulate but said they made their own decision to stay and didn't feel pressured by the Mexican Consulate. When asked by Chapman if the three discussed what they would tell authorities while sitting together in a Border Patrol vehicle the night of the shooting, Jorge DomÃ*nguez Rivera said: "We weren't thinking about that. We were thinking about what we were going to tell my father."
Other witnesses included Cochise County sheriff's detectives, Border Patrol supervisors, a medical examiner and a criminalist. The forensic evidence continued to cast doubt on Corbett's assertion to other agents that he shot the victim from straight away.

The shot was fired from less than 1 foot away, testified John Maciulla, a criminalist with the Arizona Department of Public Safety.

The slain man could not have been shot from straight ahead, testified Dr. Guery Flores, Cochise County medical examiner.

Corbett didn't take the stand Monday.

Defense attorney Daniel Santander saved the most direct questions for the final witness of the day: Cochise County sheriff's Detective Wendy Adney. He questioned her about the handling of the investigation, asked her why her report was incomplete, and at one point asked: "Who was in charge of this investigation? The Cochise County Sheriff's or the Mexican Consulate?"

She defended her decision to allow the consulate to speak with the witnesses and tried to defend most of her actions, but she didn't have explanations for many of the conclusions she reached in the report.
The criticisms were echoed by Brandon Judd, vice president of Local 2544, the Arizona Chapter of the National Border Patrol Council, the agents' union. He called it a "one-sided" investigation and accused Cochise County of allowing the Mexican Consulate to influence its actions.
Corbett was assigned to administrative work after the charges were filed.
His attorney emphasized that Monday's decision doesn't mean that Corbett is guilty. "It simply means that the prosecutor met a very low burden of proof, and there is sufficient evidence to carry this over to trial."

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They also accused the Mexican government of trying to influence the testimonies of the slain man's brothers and sister-in-law by providing them with food, clothes and lodging, and arranging for visas for them to remain in the United States while the case runs it course.

Why were these illegals given visas to remain in the country? I wonder why they couldn't have been held in an illegal alien holding facility until the court date - they aren't victims, they're criminals.