The trial of a U.S. Border Patrol agent accused of murder began Wednesday, with attorneys from both sides offering drastically different accounts of what prompted the shooting of an illegal entrant.
Nicholas Corbett is charged with second-degree murder, manslaughter and negligent homicide in the death of Francisco Javier Domínguez Rivera on Jan. 12, 2007, in the desert between Bisbee and Douglas near the U.S.-Mexico border.
Corbett's attorneys said the Border Patrol agent made a split-second decision in defense of his life. Prosecutors said Corbett was reckless and killed Domínguez Rivera while he was surrendering.
"Nick Corbett had to defend himself, and he had to defend himself against Mr. Domínguez, who was trying to crush his skull with a rock," Sean Chapman, Corbett's lead attorney, said during opening statements. Corbett had drawn his gun in the first place only to calm the scene and exert his presence, Chapman said. "Nick Corbett did not want to shoot this man, but he did what he had to do."
But prosecutor Grant Woods, a former state attorney general who has been hired by the Cochise County attorney to handle the case, called that story a "lie," and said the 22-year-old Domínguez Rivera died while surrendering. The shooting was witnessed by Domínguez-Rivera's two brothers and one brother's girlfriend, and Woods said the witness testimony matches forensics evidence.
"This young man — while surrendering, going down on his knees, putting his hands in the air — from behind was hit, yanked and shot through the heart," Woods said.
The most compelling testimony came at the end of the day, when one of Domínguez Rivera's brothers, Jorge, told his version of what happened.
He said he, his girlfriend and two brothers traveled from their home near Puebla, Mexico, to the border, hoping to get jobs at a New York cereal factory where Javier had worked before.
Although Corbett's lawyer said in opening statements that the officer found the group running to the border, Jorge Domínguez Rivera said that wasn't so.
After spending hours hiking in the desert, he said, the group of four had made it about a mile and a half across the border when they realized that the Border Patrol was near. They decided to head back to the border to try to cross another day.
Jorge Domínguez Rivera said his girlfriend, Sandra Vidal Guzmán, was tired and couldn't run. They had made a commitment to not leave one another, and so the group walked back to the border.
About 150 yards from the border, they spotted Corbett's vehicle and decided to surrender, Jorge Domínguez Rivera said.
He said that as Corbett sped toward them, several of them put their hands in the air, and eventually two lay on the ground.
Jorge Domínguez Rivera said he and his brother Javier dropped to their knees as Corbett drove up, pointing his gun at them. Corbett got out of the vehicle and tried to push his brother down, he added.
He looked at his girlfriend and heard the shot.
During opening statements, Chapman said the three witnesses had been confined together after the shooting and colluded to create their story.
Jorge Domínguez Rivera said there was no collusion.
"The only thing we were thinking about was how were we going to transport our brother to Mexico, and how were we going to explain this to our dad," he said through an interpreter.
He also denied claims the Mexican Consulate had instructed him on his testimony or promised his family a lawyer.
Cross-examination of Jorge Domínguez Rivera will begin today.
Woods also called a ballistics expert from the state Department of Public Safety and a Border Patrol agent who first responded to the shooting. Their testimony was largely technical, but Woods used it to argue that the shooting took place less than a foot away — which he said counters Corbett's story and jibes with the narrative of the three witnesses.
Border Patrol agent Stephan Berg testified he heard Corbett say the shooting took place behind his vehicle, presumably several feet from each other. And he also said Corbett never said Domínguez Rivera tried to crush his skull with a rock.
Department of Public Safety forensics expert John Maciulla testified that burned fibers in Domínguez Rivera's inner layers of clothing — he was wearing a coat, sweater and several shirts — showed the shooting took place at a distance between 3 inches and a foot. That matches an autopsy report that said Domínguez Rivera was shot from slightly behind at a downward angle.
Maciulla also said that where the bullet's shell casing landed, beside Domínguez Rivera's body, likely supported the claim that Domínguez Rivera was shot from slightly behind. The casing ejected back and to the right, he said, likely hitting the shooter and falling next to Domínguez Rivera's body.
James Calle, another of Corbett's attorneys, however, suggested the casing could have ejected several feet, ricocheted off a rock and landed near the body.
Maciulla said that was possible but not very likely.
After the jury left the courtroom, Woods asked U.S. District Judge David C. Bury if he could introduce several disciplinary reports from various law-enforcement agencies that would show "a propensity of violence" for Corbett.
But Chapman said he didn't understand why those reports weren't provided earlier as evidence.
A decision about whether the reports can be introduced will be made later in the trial, but until then they won't be used as evidence.
The trial is being conducted at the Evo A. DeConcini Federal Courthouse.
Did you know ...
The Evo A. DeConcini Federal Courthouse in Downtown Tucson is named for a former state attorney general, Superior Court judge and state Supreme Court justice who died in 1986.
His son, former U.S. Sen. Dennis DeConcini, a Tucson Democrat, was responsible for the legislation naming the building after his father.
At the courthouse's dedication ceremony in 2000, Dennis DeConcini recalled that his father ultimately had to give up his spot on the bench to support a family of six. When his father stepped down from the Arizona Supreme Court bench in 1952, the salary for the post totaled about $13,000, the former senator said then.
Source: Star archives
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