Statement   April 23, 2007   Statement of Cochise County Attorney Ed Rheinheimer relevant to the filing of a felony complaint against Border Patrol agent Nicholas Corbett.   In the 15 years that I have been working with Border Patrol agents, I have always been impressed by their dedication and professionalism. In fact, I've always thought that Border Patrol agents get far less credit than they deserve. They do a nearly impossible job under nearly impossible circumstances. They face dangers in the southwest desert that most people can only imagine. I have always found these agents to represent the best that law enforcement has to offer.   With respect to the January 12, 2007 shooting of Francisco Dominguez-Rivera, by agent Nicholas Corbett, however, based on the extensive investigation presented to this office by the Cochise County Sheriff's Department, as well as the physical evidence itself, we must come to the unfortunate but inescapable conclusion that this shooting was not legally justified. We have concluded that the evidence shows that at the time he was shot, Mr. Dominguez-Rivera presented no threat to agent Corbett and agent Corbett did not act in reasonable apprehension of imminent death or serious physical injury.   Our conclusion is that the physical evidence does not support the explanation of the shooting offered by agent Corbett. To the contrary, the physical evidence does corroborate the description of the circumstances of the shooting given by the three witnesses who were traveling with Mr. Dominguez-Rivera at the time of his death.   This has not been an easy decision to reach. Prosecutors understand that we are not in a position to second guess law enforcement officers and the split-second decisions they must sometimes make in deciding whether or not to use deadly force. But, we must go where the evidence takes us and where Arizona law dictates.   Timeline   Jan. 12: Francisco Javier Dominguez Rivera is shot and killed by a 39-year-old Border Patrol agent Nicholas Corbett during an illegal border crossing between Bisbee and Douglas.   Jan. 13: Border Patrol says a scuffle, about 150 yards north of the border in an area used for smuggling of people and drugs, had led to the shooting and the agent "feared for his life."   Jan. 13-16: Mexican President Felipe Calderon condemns the shooting and the Mexican Embassy in Washington sends a diplomatic note to the U.S. Department of State demanding an exhaustive investigation.   Feb. 6: The Arizona chapter of the National Border Patrol Council (the agents' union) claims the Mexican Consulate was allowed to interview some of the six witnesses to the shooting before U.S. investigators, thus tainting the investigation. Cochise County Sheriff's Office investigators and the Mexican Consulate deny the claims.   Feb. 27: The Cochise County Sheriff's Office completes its investigation into the shooting and sends a report to the County Attorney's office for review.   March 26: Cochise County Attorney Ed Rheinheimer releases nearly 300 pages of documents from the investigation that include testimony from witnesses, the autopsy report and narratives from other officers. The release comes after a legal notice filed by the Arizona Daily Star that court action would be sought to obtain the public records, which had been requested numerous times previously.   April 22: Rheinheimer announces his office has filed a complaint against Corbett charging him with four counts of homicide.

BISBEE — A U.S. Border Patrol agent who fatally shot a Mexican illegal entrant in January has been charged with murder by the Cochise County Attorney who said Monday that the shooting was not justified. On Monday, Cochise County Attorney Ed Rheinheimer filed a complaint against agent Nicholas Corbett charging him with four counts of homicide: first-degree and second-degree murder, manslaughter and negligent homicide. Monday's filing comes more than three months after Corbett, 39, shot and killed Francisco Javier Domínguez Rivera, 22, of Puebla, Mexico, on Jan. 12 about 150 yards north of the border between Bisbee and Douglas. The shooting occurred while Corbett was trying to apprehend Domínguez Rivera and three others who were trying to enter the country illegally. "Based on the extensive investigation presented to this office by the Cochise County Sheriff's Department, as well as the physical evidence itself, we must come to the unfortunate but inescapable conclusion that this shooting was not legally justified," said Rheinheimer in a written statement released Monday. "The evidence shows that at the time he was shot, Mr. Dominguez Rivera presented no threat to agent Corbett and agent Corbett did not act in reasonable apprehension of imminent death or serious physical injury," the statement says. A judge will schedule an initial appearance for Corbett likely by the end of the week where conditions of release, including whether bond will be set, will be determined, Rheinheimer said. Then, a preliminary hearing will be scheduled within 20 days, where a judge will decide if there is enough evidence for a trial, and if so, on what charges. From his home in Cuautla, Morelos, the father of Francisco Dominguez Rivera, Renato Dominguez celebrated the news as the start of a formal process against the Border Patrol agent. While he had earlier complained at the lack of progress in the investigation, Dominguez Rivera's father said Monday he is pleased at the news the agent has been charged. "God willing there will be some justice. I am very pleased by this news and I hope that in truth it is a reality and that something good lies ahead. At least it is a good indication tha something has begun," said Dominguez, by telephone in Cuautla, Morelos. The decision to charge the agent also pleased immigrants' rights advocates, but the Border Patrol union, which has championed Corbett's innocence, was disappointed. The decision is a part of a nationwide pattern of politically motivated prosecutions against Border Patrol agents, said Brandon Judd, vice president of Local 2544, the Arizona Chapter of the National Border Patrol Council. The matching testimony from three witnesses has more to do with their blood ties and influence from the Mexican Consulate than what actually happened, Judd says. He also disagrees with Rheinheimer's assertion that the physical evidence contradicts Corbett's statements. "I've looked over the reports and I have a hard time seeing how they could do it unless of course this was politically motivated," Judd said Monday. Charging the agent is a positive step that will lead to justice being served in court, said Mark Adams, the coordinator of Douglas-based Frontera de Cristo, a Presbyterian ministry. He was worried that the case would disappear like many past investigations into shootings by agents. "It serves as notice to all Border Patrol that they need to respect dignity of human life and of those they are arresting," said Adams, a longtime immigrant-rights activist. "It will serve as notice that there is not a blank check, you can't just do anything you want." A preliminary hearing would be the first chance for Corbett to take the stand and explain why his report of the incident to co-workers, conflicts with witness testimony and forensic evidence, facts revealed in more than 300 pages of documents released March 26 by the Cochise County Attorney's Office. Corbett, who never spoke with investigators, told colleagues the night after the shooting that he shot at a man at the back of his vehicle who looked like he was going to throw a rock. Three witnesses who were being apprehended along with Domínguez Rivera - his two brothers and a sister-in-law - told investigators that Corbett fired while pushing Domínguez Rivera to the ground. The bullet that killed Domínguez Rivera entered the left side of his chest, passed downward through his heart and liver, and settled in the right lower abdomen, according to an autopsy report by the Cochise County Medical Examiner's Office. He was shot from between 3 inches and 2 1/2 feet, according to Arizona Department of Public Safety lab information included in the report. A video taken by a Border Patrol surveillance camera shows from a distance the moments of the fatal shooting. The blurry digital video shows Corbett getting out of the driver's side of his vehicle and moving around the back before engaging a group of people, Cochise County sheriff's Sgt. Mark Genz wrote in a report given to the county attorney. "You can see that he is very close to several subjects. It appears that one of the subjects he is near goes down partly, possibly to his knees and then goes down to the ground all the way and you lose sight of him," he wrote. The County Attorney's office sent the video to the FBI for enhancement but haven't received it back. In his statement, Rheinheimer said the decision to charge was not an easy one. He wrote that he's always been impressed by the dedication and professionalism of Border Patrol agents, who do "nearly impossible jobs under nearly impossible circumstances." "Prosecutors understand that we are not in a position to second guess law enforcement officers and the split-second decisions they must sometimes make in deciding whether or not to use deadly force. But, we must go where the evidence takes us and where Arizona law dictates." Domínguez Rivera, who had been a construction worker in Mexico, was trying to cross into the United States illegally with a group that included his two brothers, René Domínguez Rivera, 21, and Jorge Domínguez Rivera, 24; and his sister-in-law, Sandra Vidal Guzmán, 20. The three remain in Tucson under the custody of the Mexican Consulate, said Alejandro Ramos Cardoso, spokesman for the Mexican Consulate in Tucson.