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arizona daily star
Tucson, Arizona | Published: 03.05.2008
U.S. Border Patrol agent Nicholas Corbett testified in his murder trial Tuesday that he shot and killed an illegal entrant last year after he was threatened with a rock, while the two engaged in a hand-to-hand fight.
The testimony in federal court came near the end of the weeklong trial, which has stirred passions about border security and illegal immigration and prompted demonstrations outside the Evo A. DeConcini Courthouse.
Corbett, 40, is charged with second-degree murder, manslaughter and negligent homicide in the death of Francisco Javier Domínguez Rivera on Jan. 12, 2007, after stopping the victim and three others in the desert between Bisbee and Douglas, near the U.S.-Mexico line.
Domínguez Rivera's two brothers and a girlfriend of one of the brothers have testified the shooting took place as the 22-year-old man was kneeling to surrender to Corbett.
And prosecutors have relied on ballistics and medical evidence as well as a video of the incident taken from a great distance to support that testimony.
But Corbett told a markedly different story.
"He was going to smash my head in with a rock," Corbett said.
Visibly nervous, he slowly told his account of the shooting, with defense attorney Sean Chapman using a handful of computer graphics to show how Corbett said the two men struggled.
Corbett had been parked about 15 feet from the border when he spotted Domínguez Rivera and the others in the group heading back toward the border.
What began as a routine stop quickly turned into a confrontation, Corbett said. As he parked in front of the group, Domínguez Rivera threatened him with a rock, he said.
"I drew out my weapon, and I ran around my vehicle," Corbett said. "I confronted the guy with the rock."
Corbett, who is about a foot taller than Domínguez Rivera, said he placed his left hand on Domínguez Rivera's right shoulder, pushing him away at arm's length while telling him to sit. He had his gun in his right hand, aiming down at Domínguez Rivera.
"I saw his arm come up with the rock over my left arm to hit me in the head," Corbett said. "I punched down, shot down."
Domínguez Rivera briefly stood still before turning around to face his brothers, Corbett said.
Not knowing Domínguez Rivera had been shot, Corbett kept ordering the man to sit. He switched the gun to his left hand and pushed Domínguez Rivera, who then "crumpled."
The account differs markedly from the prosecution's recent witness testimony. The two brothers and girlfriend said Corbett came from behind Domínguez Rivera as he was kneeling, hitting him on the head and then pushing him down to the ground when the gun fired.
In cross examination, prosecutor Grant Woods, a former state attorney general who has been hired by the Cochise County attorney to handle the case, focused on several inconsistencies in Corbett's testimony.
For example, Corbett had said he never radioed to other agents that shots were fired. But last week, Border Patrol agent Stephan Berg testified he heard what he thought were gunshots, and then ran to the scene after Corbett radioed shots fired.
Woods noted Berg and several other Border Patrol agents also testified that immediately after the shooting, Corbett said Domínguez Rivera started to throw a rock at him, as opposed to "smashing" his skull, and at that time there was no mention of a physical confrontation.
Woods also mentioned the testimony of Rick Carranza, a Border Patrol supervisor who said Corbett told him Domínguez Rivera was "right on him," and that after the shooting, Domínguez Rivera immediately fell to the ground. But Corbett said he never said such a thing.
And Corbett struggled to remember where he was in relation to his vehicle when the shooting happened.
Finally, Woods raised the issue of what's known among law enforcement as the "sympathetic squeeze." Essentially, law enforcement officers are trained if the non-shooting hand becomes engaged in some kind of forceful action, the shooting hand will involuntarily pull the trigger.
Corbett said he was aware of the "sympathetic squeeze," but it wasn't something he was thinking about at the time of the shooting.
In closing arguments, Woods called Corbett's story a "concoction" that evolved over the past year and was designed to match forensic evidence.
He asked the jurors to look at how the testimony of the three witnesses — Domínguez Rivera's two brothers and girlfriend of one of the brothers — matches the forensic evidence.
Meanwhile, Chapman said Corbett's story has been consistent: The shooting was done in self-defense, and agents responding to the scene made certain assumptions about how the shooting happened.
He also again raised the specter of the Mexican Consulate wielding influence on the testimony of the witnesses.
But ultimately, Chapman said, it was sloppy investigative work by the Cochise County Sheriff's Department that should result in Corbett's acquittal.
Investigators left a pair of Domínguez Rivera's gloves at the scene, never separated the witnesses in the first few hours after the shooting and didn't immediately talk to one another after the witnesses were interviewed.
"The state's investigation was so poorly done here that no matter what you think might have happened, this case is riddled with reasonable doubt," Chapman said.
● Contact reporter Josh Brodesky at 807-7789 or jbrodesky@azstarnet.com.
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