Judge allows second-degree murder charge against Corbett to proceed

BISBEE — Border Patrol Agent Nicholas Corbett can be tried in Cochise County Superior Court on a charge of second-degree murder, a justice of the peace ruled Monday.

However, after listening to testimony at a preliminary hearing, Justice of the Peace David Morales decided that the evidence did not support a more serious charge of first-degree murder, which supposes premeditation.

On April 23, Cochise County Attorney Ed Rheinheimer charged Corbett with first-degree murder, second-degree murder, negligent homicide and manslaughter in connection with the Jan. 12 shooting death of Francisco Javier Dominguez-Rivera, a 22-year-old Mexican national who had crossed the border illegally east of Naco.

Deputy County Attorney Gerald Till, the lead prosecutor in the case, said following Monday’s ruling that he was not disappointed to lose the first-degree murder charge.

“I just put on the case and the judge decides from the evidence,” Till said. “That’s what the preliminary hearing is for.”

Defense attorney Sean Chapman, while maintaining Corbett’s innocence on all the charges, was not surprised that Morales let second-degree murder — as well as the lesser included offenses of manslaughter and negligent homicide — go forward.

“The judge has considered the evidence on a very low standard of probable cause as opposed to proof beyond a reasonable doubt, and so we anticipated that simply considering the state’s evidence, he’d find probable cause on some of the offenses,” Chapman said.

“That does not mean that he believes the defendant is guilty,” he continued. “It simply means that the prosecutor met a very low burden of proof, and there is sufficient evidence to carry this over to trial.”

Earlier in the day, three eyewitnesses to the shooting — two of the victim’s brothers and the girlfriend of one of the brothers — told Morales that Corbett circled his Border Patrol truck around them as they ran toward the U.S.-Mexico border, pointing his service pistol with his right hand as he drove with his left.

Then after stopping the vehicle, Corbett jumped out ran around the back of the truck, now holding the semi-automatic pistol in his left hand and shouting something unintelligible in English. When he reached Francisco Dominguez-Rivera, the witnesses said, he struck him in the back of the neck and pushed him toward the ground from behind.

“I turned to look at Sandra, and I heard ‘boom!,’ ” said Jorge Dominguez-Rivera, referring to his girlfriend Sandra Vidal-Guzman.

Vidal-Guzman testified that she watched as Corbett fired and Francisco Dominguez-Rivera fell to the ground, convulsed briefly, and died.

The witnesses said that no one in their party carried a weapon or brandished a rock — Corbett told supervisors at the Naco Border Patrol Station that he fired in self-defense after Francisco Dominguez-Rivera threatened him with a rock.

An autopsy of Dominguez-Rivera showed that the bullet from Corbett’s 40-caliber Beretta pistol entered near the victim’s his left armpit and took a downward trajectory through his heart before lodging in his lower right abdomen, Cochise County Medical Examiner Dr. Guery Flores told the judge.

And Jon Maciulla, a criminologist at the Arizona Department of Public Safety crime lab in Tucson testified that tests to the victim’s shirt showed that the shot was fired from a distance of less than one foot.

During cross-examination, Flores told assisting defense attorney Daniel Santander that there was no sign of injury to the victim’s shoulders, head or neck — despite the witnesses’ reports that Corbett had struck him there.

Then during his questioning of the family members, Chapman noted several apparent inconsistencies between their testimonies Monday and statements they made to Cochise County Sheriff’s Office investigators during two interviews in January.

In one example, Chapman asked Jorge Dominguez-Rivera why he had said in January that Corbett held the gun in his right hand, but then said Monday that he held it in his left.

Chapman also focused on the Mexican Consulate’s role in aiding the family members. Under cross-examination, the witnesses acknowledged that the consulate is providing them with food, an apartment in Tucson, free transportation and calls to family members.

They also said that their attorney, Peter Schey of the Center for Human Rights and Constitutional Law in Los Angeles, had helped them to get U.S. work visas, though none had yet to land a job.

Chapman played the three family members tape recordings of interviews they had done with Oscar de la Torre, the Mexican Consul in Douglas, who told them that Mexican President Felipe Calderon had condemned the shooting. De la Torre also advised them not to change their stories from the original statements they gave the sheriff’s investigators.

“It is very important to us that the policeman does not come out clean over this,” De la Torre said in one of the conversations.

Chapman asked Vidal-Guzman if she felt any pressure to testify in the case, knowing that the consul and President Calderon have an interest in it, and that the Mexican government is paying for her living expenses.

As for the advice not to change his statement, brother Rene Dominguez-Rivera said he thought it meant that he should stick to the truth.

Sheriff’s Office Detective Ursula Ritchie described to the judge how she arrived at the shooting scene and was told by a Border Patrol Field Operations Supervisor Murray Adams that Corbett had said he shot Dominguez-Rivera from diagonally across his patrol SUV after first coming around the front of the vehicle.

Using that information, Ritchie said, she searched unsuccessfully for a spent shell casing near the front end of the truck. Later, a deputy found the casing approximately two feet from the victim’s head, at the rear of the vehicle.

Adams told Morales on Monday that he may have been mistaken when he first told Ritchie of his conversation with Corbett.

Santander asked Ritchie why she had not taken into evidence a pair of gloves that had apparently been worn by the victim and which lay on the ground near his hands. Ritchie had said earlier that Dominguez-Rivera’s hands were free of dirt, despite Corbett’s claim that he had held a rock.

“It wouldn’t take a rocket scientist to observe those gloves and take them into evidence, would it?” Santander said.

Santander also took Sheriff’s Office Detective Wendy Adney to task for her failure to investigate which hand Corbett had used to fire his gun, and for not taking charge at the Naco Border Patrol Station on the night of the shooting to ensure that the witnesses were separated.

Adney, however, said that contrary to suggestions from the defense, she was the first person to interview the witnesses.

Speaking after the hearing, Brandon Judd, vice-president of the local chapter of the Border Patrol agents’ union, accused Adney of sloppy police work, which included omitting evidence favorable to Corbett from her probable cause report.

“I hope there’s never a crime committed against my family in which a Cochise County detective investigates,” Judd said.

Corbett’s case will now move to Cochise County Superior Court, where he will be arraigned on a yet-to-be determined date.

Corbett did not testify at the preliminary hearing, and Chapman and Santander declined to make an offering of their evidence for the judge. Asked afterward if Corbett will continue to assert that he shot Dominguez-Rivera from straight on in order to defend himself from a rock-throwing, Santander declined to comment.

“On April 23, Cochise County Attorney Ed Rheinheimer charged Corbett with first-degree murder, second-degree murder, negligent homicide and manslaughter ...”

WTF is this eeney meeney miney mo?

“...three eyewitnesses to the shooting — two of the victim’s brothers and the girlfriend of one of the brothers — told Morales that Corbett....”

The witness are all ILLEGAL ALIENS.

“Then during his questioning of the family members, Chapman noted several apparent inconsistencies between their testimonies Monday and statements they made to Cochise County Sheriff’s Office investigators during two interviews in January.”

surprise, surprise.

“In one example, Chapman asked Jorge Dominguez-Rivera why he had said in January that Corbett held the gun in his right hand, but then said Monday that he held it in his left.”

because he’s lying?

“Under cross-examination, the witnesses acknowledged that the consulate is providing them with food, an apartment in Tucson, free transportation and calls to family members.

They also said that their attorney, Peter Schey of the Center for Human Rights and Constitutional Law in Los Angeles, had helped them to get U.S. work visas, though none had yet to land a job.”

On what grounds does this attorney have the right to secure these illegals work visas?

“Chapman played the three family members tape recordings of interviews they had done with Oscar de la Torre, the Mexican Consul in Douglas, who told them that Mexican President Felipe Calderon had condemned the shooting. De la Torre also advised them not to change their stories from the original statements they gave the sheriff’s investigators.

“It is very important to us that the policeman does not come out clean over this,” De la Torre said in one of the conversations.”

Corruption of the Mexican system has invaded our courts.

“Chapman asked Vidal-Guzman if she felt any pressure to testify in the case, knowing that the consul and President Calderon have an interest in it, and that the Mexican government is paying for her living expenses.

“No,” she said.”

Liar

“Adney, however, said that contrary to suggestions from the defense, she was the first person to interview the witnesses.

“I know that I interviewed them before the Mexican Consulate,” she said.”

That may be true, in her case, but I distinctly recall that the Mexican consulate officials showed up and began to interview these witnessess PRIOR to them being interviewed by American officials. See the story below:

http://www.infowars.com/articles/immigration/border_patrol_union_says_agent_railroaded_for_shooting_mexican_immigrant.htm

Border Patrol Union Says Agent Is Being Railroaded for Fatal Shooting of Mexican Immigrant

Fox News | February 2, 2007
William LaJeunesse

Cold-blooded murder.

That’s what Mexico claims happened along the Arizona border after an argument between a 22-year-old illegal immigrant and the Border Patrol agent who tried to arrest him.

The local border patrol union claims self-defense and fears the agent is about to be railroaded after Mexican officials were given unrestricted access to the witnesses before U.S. investigators. Union officials claim that access allowed the Mexican officials to frame the agent using false testimony.

“The Mexican consulate was allowed to coach the witnesses,” said Brandon Judd, president of Local 2544, which represents 90 percent of the 2,900 Customs and Border Protection agents in Southern Arizona. “Now the agent is in jeopardy because these witnesses were allowed to solidify their stories as the Mexican consulate coached them to do.”

The incident happened two weeks ago, when a 39-year-old border agent tried to arrest seven illegal aliens near Naco, Ariz. The agent had three immigrants inside a vehicle and three on the ground, but Francisco Rivera, age 22 refused to comply, the agent said.

Rivera picked up a rock, according to Judd, and cocked his arm to throw it from about 10 feet away.

The agent, a former Marine, says he killed Rivera with a single shot when he failed to answer commands to put the rock down.

“Assuming he had a stone, should you shoot somebody who picks up a stone?” asked Francisco Gaxiola, an attorney for the Mexican consulate. “If the witness statements are true, it was totally unjustified. There was no reason to shoot Rivera. He had his hands up. He was not threatening anybody.”

The union claims the agent feared for his life. Judd picked up a 5-pound rock from the Sonora desert, similar to the one Rivera allegedly used.

“This rock, if it hit you in the head, can kill you,” Judd said. “If not kill you, incapacitate you. And that gives the alien access to your sidearm. We have to escalate to a force greater than the alien is using.”

Following the shooting, the six witnesses were transported to the Naco Border Patrol processing center for questioning. The Mexicans were put in an unlocked cell.

An hour later, investigators for the Border Patrol and the Cochise County Sheriff’s Office arrived. While interviewing the first witness inside a windowless interrogation room, three Mexican Consulate officials arrived and began interviewing the remaining witnesses.

Two border agents say they objected, but the special agent in charge, Darcy Olmos, gave the Mexican official unrestricted access inside the BP headquarters, according to Judd.

“This was an active investigation and our management allowed officials from the Mexican government into the processing area,” Judd said. “This compromised the investigation.”

Gaxiola, however, said the agents are just trying to save a comrade.

“The Mexican consulate came in and told them to lie? That is a serious allegation the Border Patrol knows didn’t happen. They have no proof.”

The agent has been reassigned pending outcome of the investigation. Meanwhile, Mexican President Felipe Calderone asked for a thorough investigation. Mexico’s foreign secretary condemned the shooting as an act of “disproportionate force.”

Even if the agent is cleared, union representatives expect a lawsuit.

They’re being proactive with the media in hopes of heading off another situation like the two former Border Patrol agents in Texas serving 11 and 12 years in prison for wounding a Mexican drug runner.

"It is very important to us that the policeman does not come out clean over this," De la Torre said in one of the conversations.

I can barely understand / speak a little Spanish, but if I wanted to say it in English I'd of said something like, "It's important that the policeman does not get away with this." "Come out clean" sounds more like a threat to me, especially after gathering some information from the accused side. (below)

From an earlier post: "The ruling followed a preliminary hearing that heard evidence from three illegal immigrants present at the shooting."

The agent throws one to the ground and murders him while the murdered man's companions watch. That don't make a lick of sense. I.e., why didn't he shoot them all then there would be only his side of the story?

But wait, here's more. Where would we be without the Internet and talk radio? Ans: back in the stifling days of the "Fairness Doctrine" when self-anointed gatekeepers of information and issues ruled.

"U.S. Border Patrol agent Nicholas Corbett said he feared for his life after apprehending the group of illegal border crossers in January about 150 yards north of the Mexico-Arizona border between Bisbee and Douglas. The group’s leader, Francisco Javier Dominguez, became aggressive and attacked the federal agent with rocks after being detained."

See Corruption Chronicles a Judical Watch Blog.

So it wasn't that the four of them were tossing stones at the agent. It's very possible that the agent is telling the truth.

Now that's a lot clearer and it's now what the Mexican citizens say while their government watches v. what a lone BP Agent says. Evidence at the scene is really important. Too bad that it sounds like the investigation has been botched already.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.