Posted on 03/08/2008 11:27:48 AM PST by SandRat
TUCSON — A U.S. District Court judge declared a mistrial Friday for Border Patrol Agent Nicholas Corbett’s murder case after the jury said it was unable to decide on a verdict after about 23 hours of deliberations.
Cochise County Attorney Ed Rheinheimer said he intends to retry the case. Judge David Bury scheduled a new trial for April 22, but that date will likely be changed due to a conflict with a defense attorney.
On Thursday, the jurors sent the court a note stating they were at an “impasse,” but Bury told them to continue deliberations. On Friday at about 2:50 p.m., they sent another note stating they remained in an “unable to agree” status.
Bury polled members of the jury to see if they thought they could arrive at a unanimous verdict if they continued deliberations. Each person on the 12-member panel said, “No.”
Grant Woods, the lead special prosecutor, and Sean Chapman, the lead defense attorney, agreed a mistrial declaration would be appropriate. Bury said the jury was “deadlocked” and he granted the motion for mistrial.
One of the jurors left the courtroom in tears. The jury and the defendant exited the courthouse without speaking to reporters.
Corbett was charged with second-degree murder, manslaughter and negligent homicide for fatally shooting a Mexican named Francisco Javier Dominguez-Rivera who illegally entered the United States near Naco last year.
Woods said he would have preferred for the jurors to convict Corbett, but he will leave that opportunity up to the next jury.
“I think the jury was very diligent and put in an awful lot of time,” he said. “They reached an impasse, and then put in another 11 or 12 hours after that.”
Chapman said his client was hoping for resolution, but he is ready for another trial.
“I am disappointed the jury did not acquit him. We are prepared to try it again and we will. I believe he is innocent. I believe another jury will acquit him,” he said.
Dove Haber, a public information officer for the Tucson sector of the Border Patrol, declined to comment on the case because it is still pending.
The trial started on Feb. 26. Evidence was presented over the course of almost five days and the jury deliberated for roughly three days.
Dominguez-Rivera entered the United States on Jan. 12, 2007, with his two brothers and one’s girlfriend. Corbett was apprehending them and he shot Dominguez-Rivera. Corbett claimed he acted out of self-defense to prevent the victim from smashing his skull with a rock.
Prosecutors said the shooting was unjustified. They presented evidence including the eyewitness testimony, an autopsy report, forensics and a video.
Defense attorneys said the eyewitnesses were lying. They said the Mexican government influenced their testimony.
They also said detectives with the Cochise County Sheriff’s Office conducted a poor investigation.
Prosecutors accused Corbett of fabricating different versions of what happened in interviews with Border Patrol officials at the scene and then changing his story during testimony so it would match the evidence.
Woods said Corbett is now “locked in” on his story and he can’t change it again.
Woods and Rheinheimer said the next trial will be handled differently because new evidence will be admitted.
For example, prosecutors intend to bring up the fact that Corbett has been involved in a few violent incidents. The judge did not let them use this particular evidence during the trial because it was not disclosed until after opening arguments.
Prosecutors also plan to present evidence regarding Dominguez-Rivera’s good character. Woods said the victim was well respected in Mexico and in the United States.
The defense may try to bring in evidence regarding the fact that the victim had a tattoo on his hand that may be associated with a gang affiliation. According to Chapman, gang members are more prone to be aggressive during apprehension.
Some activists said they were not pleased with the outcome of the trial.
Isabel Garcia, co-chair of the Human Rights Coalition in Tucson, said she thinks there was a considerable amount of compelling evidence in the case, including the video, the forensics and autopsy results.
“I am absolutely shocked the jury could hear all the evidence and not come back with a guilty verdict on second-degree murder, manslaughter or at least negligent homicide,” she said.
In a statement, Border Action Network, a human rights organization in Tucson, said it was “saddened and disgusted by the indecisiveness of the jury.”
“Presumably, Agent Corbett will be released back in to the desert where he will continue to act as his own judicial system — judge and jury, deciding who dies and who lives. This agent’s act of reckless abandon for human life was demonstrated when he shot Francisco Javier,” says the statement.
HERALD/REVIEW reporter Jonathon Shacat can be reached at 515-4693 or by e-mail at jonathon.shacat@bisbeereview.net.
KEY DATES
The following is a brief timeline of the case.
• Jan. 12, 2007 — Nicholas Corbett fatally shoots Francisco Dominguez-Rivera near Naco.
• Jan. 17, 2007 — Guery Flores, Cochise County’s medical examiner, performs an autopsy on Dominguez-Rivera.
• Feb. 27. 2007 — Cochise County Sheriff’s Office completes its investigation and forwards a report to the County Attorney’s Office.
• April 23, 2007 — Cochise County Attorney’s Office charges Corbett with first-degree murder, second-degree murder, manslaughter and negligent homicide.
• Aug. 6, 2007 — The first-degree murder charge is dismissed during a preliminary hearing in Justice Court in Cochise County.
• Sept. 24, 2007 — Corbett’s case gets moved to federal court in Tucson.
• Nov. 6, 2007 — Cochise County Attorney’s Office hires former state attorney general Grant Woods and Tyrone Mitchell as special prosecutors.
• Dec. 17, 2007 — Judge David Bury agrees to allow Jim Calle to replace Daniel Santander as one of Corbett’s attorneys. Sean Chapman remains lead defense attorney.
• Jan. 17, 2008 — Corbett’s defense team goes to scene and finds gloves belonging to the victim that detectives had failed to collect as evidence.
• Feb. 26, 2008 — Corbett’s trial starts with jury selection in U.S. District Court in Tucson.
• March 7, 2008 — Judge declares a mistrial after jury says it cannot come to a decision.
Compiled by Jonathon Shacat•Herald/Review
BORDER PING
I wonder what the vote was in the deadlocked jury? The majority voting to convict or acquit? That will speak volumes.
When do we take a look at the lefty groups and their founders and where the money comes from?
This was a man arresting criminals....
End of story.
Now to the story -
Jurors can't reach verdict in killing by border agent
Federal judge declares case a mistrial following three days of deliberations Prosecutors vow to retry it; vast gap between both sides' versions of events
With jurors deadlocked after three days of tense deliberations, a federal judge declared a mistrial Friday afternoon in the high-profile murder case against U.S. Border Patrol agent Nicholas Corbett.
The trial focused on two markedly different stories about what prompted the shooting last year of Francisco Javier DomÃnguez Rivera, stirring passions about immigration and border security while prompting numerous demonstrations outside the Evo A. DeConcini Courthouse.
Just before 3 p.m., jurors sent a note to U.S. District Judge David C. Bury saying they were deadlocked. Bury called them into the courtroom and quizzed the foreman, who assured him there was no hope of reaching a unanimous decision.
Reflecting the emotional charge of the trial, many of the jurors looked weary, even angry, and one woman was crying as she left the courtroom.
Afterward, federal prosecutors vowed to retry the case.
Corbett, 40, was charged with second-degree murder, manslaughter and negligent homicide in the killing of DomÃnguez Rivera on Jan. 12, 2007, after stopping him and three others in the desert between Bisbee and Douglas, near the U.S.-Mexico line.
DomÃnguez Rivera's two brothers and a girlfriend of one of the brothers testified the shooting took place as the 22-year-old man was kneeling to surrender to Corbett. Prosecutors relied on ballistics and medical evidence as well as a video of the incident taken from a great distance to support that testimony.
"In this country, the government stood up for the human rights of someone who was here illegally," said Grant Woods, former state attorney general who was hired by the Cochise County attorney to handle the case. "I don't think it's possible to discount how difficult it is to bring a case like this in this atmosphere."
But Corbett testified DomÃnguez Rivera walked up to him with a rock and tried to "smash" his skull. The two engaged in a hand-to-hand fight, and as DomÃnguez Rivera reached up with the rock, Corbett's gun fired, the jury was told. Defense attorneys also brought in their own experts to offer alternative takes on the medical and ballistics evidence.
"I'm disappointed the jury did not acquit him," said Sean Chapman, the lead defense attorney. "I think he had hoped for a resolution, but he is prepared to go to trial again." Despite the video and witness testimony that matched ballistics and medical reports, the prosecution case was hardly perfect.
Detectives with the Cochise County Sheriff's Department failed to collect a pair of gloves DomÃnguez Rivera was wearing during the shooting.
In a probable-cause statement, which led to murder charges being filed, detectives had noted that DomÃnguez Rivera had "clean hands." But Chapman and fellow defense attorney Jim Calle argued if the gloves had been taken into evidence, they could have been examined for dirt or debris that might have shown DomÃnguez Rivera had held a rock.
Also, in the hours immediately after the shooting, the three witnesses were never separated from one another. Chapman pointed to that error to open the possibility they may have talked about the shooting and created a matching story.
There were also allegations about the Mexican Consulate tampering with the witnesses. Most notably, Chapman read a transcript of a statement Oscar de la Torre Amezcua, Mexican consular general in Douglas, made to the three witnesses while they were in custody after the shooting.
"It's very important for us, like I told you, that the policeman doesn't get out of this clean," de la Torre said, according to transcripts read at the trial.
Still, prosecutors said their case was solid.
"This wasn't about a pair of gloves," said Cochise County Attorney Ed Rheinheimer.
"This was always a case that tilted on physical evidence, forensic evidence, a surveillance video."
And an immigrant's story.
Relying on the testimony of DomÃnguez Rivera's two brothers, Jorge and René, Woods presented an intensely human portrait of an immigrant's life and death.
DomÃnguez Rivera had come to the United States nearly five years ago, working in a cereal plant in New York.
He went home for the holidays last winter to see his parents, and while there persuaded his brothers and one brother's girlfriend to come back with him.
The four traveled from their home outside Puebla, Mexico. But they never made it more than a mile and a half across the border when, aware of the Border Patrol, they decided to turn back.
About 100 yards from the border, they saw Corbett's vehicle. From there, what should have been a routine stop became a shooting that drew national attention.
And both sides acknowledged that the attention, during a time when immigration is a hot issue, may have been the biggest obstacle to the jury reaching a unanimous decision.
"I think it's hard in this case for people to separate the whole debate over immigration from the individual facts of this case," Chapman said.
The next time around, Woods said, prosecutors will bring new character evidence — police reports — showing Corbett has a propensity for violence. Calle said the facts of the case remain the same. And Chapman said earlier he would like to bring in character evidence about DomÃnguez Rivera.
The retrial is tentatively set for April 22.
On StarNet: Should Border Patrol agent Nicholas Corbett be retried?
Take a poll in the online version of this story at azstarnet.com.
● Contact reporter Josh Brodesky at 807-7789 or jbrodesky@azstarnet.com.
Should Border Patrol agent Nicholas Corbett be retried?
Yes 19 %
No 81 %
Total number of votes 596
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