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, 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 had entered the country illegally.
"Based on the extensive investigation presented to this office by the Cochise County Sheriff's Office, 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.
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"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 today for Corbett, likely by the end of the week, Rheinheimer said. A preliminary hearing will be scheduled within 20 days, and 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 that something has begun," Dominguez said by telephone.
U.S. Border Patrol officials would not comment on the developments Monday. Tucson Sector Chief Robert W. Gilbert will address the issue today, said agency spokesman Gustavo Soto.
Corbett, who has been an agent since November 2003, returned to duty three days after the shooting.
The decision to charge the agent 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 said. He also disagreed 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."
Oscar de la Torre Amezcua, the Mexican consular general in Douglas, said charging the agent is a good first step toward guaranteeing the civil and human rights of illegal entrants. The consulate will be closely watching the rest of the legal process, he said.
Isabel Garcia, co-chair of the Tucson-based Coalicion de Derechos Humanos, which works to protect the rights of immigrants, agreed but questioned the decision to take the case to a preliminary hearing instead of a grand jury. That's just one of many concerns she has about the case moving forward in what she described as an anti-immigrant climate.
"We know that the political arena is so poisoned that it absolutely impacts what happens in a trial of this nature," Garcia said.
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.
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 hasn'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, crossed 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 consulate in Tucson.
Find past stories about the shooting and subsequent investigation, as well as other border-related news and multimedia at azstarnet.com/border
Other killings
Border Patrol agents in Southern Arizona charged in killings:
• Denin Hermosillo was charged with negligent homicide in the Feb. 19, 2005, shooting death of Julio Cesar Yenez Ramirez, who was suspected of smuggling marijuana.
• Michael A. Elmer was charged with the murder of Dario Miranda Valenzuela, who was shot in the back west of Nogales, Ariz., on June 12, 1992. The shooting was not reported until 15 hours later. He was acquitted of second-degree murder in a state trial Dec. 16, 1992. He was also found innocent Feb. 3, 1994, in a federal civil rights trial.
Source: Star archives
