Border agent's retrial another mistrial
Prosecutors now must decide whether to try case a third time or dismiss charges
By Brady McCombs
The Arizona Daily Star (Tucson), November 5, 2008
The retrial of a U.S. Border Patrol agent facing murder charges ended the same way the first trial did – in a hung jury.
Prosecutors must now decide whether to try the case for a third time or dismiss the charges against agent Nicholas Corbett.
After more than 17 hours of deliberations over four days, jury members on Tuesday afternoon told U.S. District Judge David C. Bury that they could not reach a unanimous decision. Bury thanked them and declared a mistrial.
Corbett, 40, was facing charges of second-degree murder, manslaughter and negligent homicide in the Jan. 12, 2007, shooting of Francisco Javier Dominguez Rivera, an illegal immigrant from Mexico. The shooting occurred after Corbett stopped Dominguez Rivera, his two brothers and one brother's girlfriend in the desert between Bisbee and Douglas about 100 yards north of the border.
In March, a jury in the first trial could not reach a unanimous decision either, and a mistrial was declared.
Like the first jury, the 12-person panel in the retrial, held in the Evo A. DeConcini Courthouse in Tucson, were given two contrasting stories from attorneys about what happened.
Prosecutors said Corbett shot and killed Dominguez Rivera while the 22-year-old was trying to surrender. They brought his two brothers and one brother's girlfriend to the witness stand to back that story and presented forensic and medical evidence to support it as well.
The defense said Corbett shot in self-defense after Dominguez Rivera tried to smash in his head with a rock. Lead defense attorney Sean Chapman told the jury the three witnesses were lying and that Cochise County Sheriff's Office bungled the investigation so grossly that it cost Corbett a fair trial.
The jury's inability to reach a verdict elicited disappointment from both teams of attorneys, although the defense took some satisfaction in a note from the jury that indicated members were deadlocked at 11-1 in favor of acquittal.
'We view that as very encouraging,' Chapman said. 'We were disappointed we couldn't get a unanimous vote for acquittal but that's as close as you can get to it.'
Prosecutors, however, said attorneys don't know for sure what the jury's vote was and that defense attorneys derived that conclusion from interpreting a note sent from the jury to the judge.
'That may or may not be accurate,' said Ed Rheinheimer, Cochise County attorney.
It seems implausible, Rheinheimer said, considering prosecutors heard the first jury in March was deadlocked at 11-1 or 10-2 in favor of a guilty verdict.
'We don't know what the vote was and it doesn't really matter,' said Grant Woods, the former state attorney general who was hired by the Cochise County attorney to handle the case.
Woods repeated what he said after the first mistrial: That the jury's inability to acquit Corbett shows Arizona stood up for the basic human rights of Dominguez Rivera even though he was an illegal immigrant from Mexico.
'It's always going to be difficult to convict a law enforcement official on the word of somebody who is here illegally,' Woods said. 'I think if an illegal immigrant had Corbett's story and he was charged with killing a police officer, he would have been convicted in about five minutes.'
Immigrants' rights advocates who have followed the case agreed it would have been different if Dominguez Rivera had been a U.S. citizen.
'The people have such a hard time recognizing that the law applies in this country to undocumented immigrants,' said Jennifer Allen, director of Border Action Network, a Tucson-based immigrants-rights organization. 'That is an obstacle that, to date, zero of two juries have been able to get around.'
Allen said the mistrial has the same impact as an acquittal.
'It sends a message to Border Patrol agents that they are above the rule of law, that there are no consequences for their actions even in the extreme level of murder,' Allen said. 'It is a harsh reality that even in the face of overwhelming evidence, people want to believe so hard that our law (enforcers) are upholding ethical standards.'
The Border Patrol agents' union has supported Corbett since the shooting occurred, touting his innocence and paying for his legal team from their legal defense fund.
'We strongly believe this should have never gone to trial,' said Edward Tuffly, president of Local 2544, the local chapter of the National Border Patrol Council, the border agents' union.
Tuffly said news that the jury was deadlocked at 11-1 in favor of an acquittal 'is a pretty strong statement so we feel good about it.'
'He (Corbett) is relieved and just wants to get this behind him and move on with his life. We hope Cochise County is going to drop this and move on to something else.'
Corbett has remained employed by the Border Patrol but has been on administrative duty. Tuffly said the union will work to get him back in the field.
In a statement released by the Center for Human Rights and Constitutional Law, the victim's father, Renato Dominguez, said the family will ask Cochise County to try the case again.
'We are disappointed that the jury did not find Corbett guilty,' Dominguez said. 'We will continue to seek justice for Francisco.'
The man who has to make the decision on whether to try the case again, Rheinheimer, said he would take time to review juror statements and determine if it's worth it to try again. He'll take into account the cost of trying the case and the fact that two juries have been unable to reach a verdict.
His indecision comes in contrast to the conclusion of the first trial when he and prosecutor Woods proclaimed outside the courtroom they would try it again.
Defense attorneys are awaiting the decision, prepared for another trial if necessary.
'He's got to assess the cost involved in doing this and also the fact that its been tried twice already,' said Chapman, referring to Rheinheimer. 'He's got to ask himself whether he wants to spend more of the taxpayer money again when the chances of getting a conviction are pretty slim.'
Rheinheimer said he doesn't know yet the exact cost of retrying the case.
The money used by Cochise County for the retrial comes from the state's Criminal Justice Enhancement Fund, which collects fines and distributes them to counties to be used in extraordinary prosecutions, he said. If he chooses to try the case again, the county could use these funds again, he said.
'It's not the time to make that decision,' Rheinheimer said.
Mistrial granted for Border Patrol agent charged with killing illegal immigrant
The Associated Press, November 5, 2008
Border agent could be tried 3rd time in migrant's shooting death
By Sheryl Kornman
The Tucson Citizen (AZ), November 4, 2008